The Good News: The Trump Administration Keeps Losing in Court

Despite the Trump Administration’s efforts to pack the federal court system with ultra-conservatives,1 so far the Trump administration keeps losing in court cases. The third branch of government, at least, is still doing its job.

Two of the latest defeats came from the Ninth Circuit Court of Appeals. They are worth examination.

The first case involves the neurotoxin and pesticide called chlorpyrifos. The court’s decision opens with this paragraph:

Over nearly two decades, the U.S. Environmental Protection Agency (“EPA”) has documented the likely adverse effects of foods containing the residue of the pesticide chlorpyrifos on the physical and mental development of American infants and children, often lasting into adulthood. In such circumstances, federal law commands that the EPA ban such a pesticide from use on food products unless “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide.” 21 U.S.C. § 346a(b)(2)(A)(ii). Yet, over the past decade and more, the EPA has stalled on banning chlorpyrifos, first by largely ignoring a petition properly filed pursuant to law seeking such a ban, then by temporizing in response to repeated orders by this Court to respond to the petition, and, finally, in its latest tactic, by denying outright our jurisdiction to review the ultimate denial of the petition, even while offering no defense on the merits. If Congress’s statutory mandates are to mean anything, the time has come to put a stop to this patent evasion.

You can tell the court of appeals might be a little unhappy with the EPA. The heart of the decision is pretty simple:

The EPA cannot refuse to act “because of the possibility of contradiction in the future by evidence unavailable at the time of action – a possibility that will always be present.”

The bottom line?

Accordingly, we GRANT the petition for review. The EPA’s 2017 Order maintaining chlorpyrifos is VACATED, and the case is remanded to the EPA with directions to revoke all tolerances and cancel all registrations for chlorpyrifos within 60 days.

There’s been no serious scientific dispute that chlorpyrifos is bad stuff; not for twenty years. Maybe, finally, we’ll be rid of the stuff.

The second case involves the tragic shooting of 16-year old Mexican citizen J.A., who was murdered by U.S. Border Patrol agent Lonnie Swartz.  Swartz was standing on American soil when he shot and killed J.A., a teenage Mexican citizen who was walking down a street in Mexico. Swartz fired somewhere between 14 and 30 bullets across the border at J.A., and he hit the boy, mostly in the back, with about 10 bullets. This is a civil wrongful death case, not a criminal case. The decision requires some explanation, but it’s worth the effort.

The case came to the Ninth Circuit on an appeal from the trial court’s refusal to dismiss the case on the grounds of qualified immunity.[^2] For purposes of such an appeal, the rule is that the court must assume the allegations of the plaintiff – the dead kid’s mom – are true. After all, she hasn’t been permitted to offer any evidence yet. The United Claimed that J.A. had been throwing rocks at Border Agent Swartz. He must have had a hell of an arm: here the street J.A. was on.

Exhibit A to Plaintiff's First Amended Complaint, Calle Internacional, Nogales, Mexico

Exhibit A to Plaintiff’s First Amended Complaint, Calle Internacional, Nogales, Mexico

Swartz, standing on American soil, was on a bluff 25 feet above the Mexican street, behind a fence another 25 feet tall made of steel beams, each about 6 1⁄2 inches in diameter, set about 3 1⁄2 inches apart. You’ll note there aren’t any rocks around to throw, either. 

The United States defended Border Agent Swartz by claiming he had “qualified immunity,” which would excuse Swartz from liability to anyone for his actions. The law is that an officer is entitled to qualified immunity if a court answers two independent questions: (1) whether the officer’s conduct violated a constitutional right, and (2) whether that right was clearly established at the time of the incident.” A constitutional right is “clearly established” if “every reasonable official would have understood that what he is doing violates that right.”

The Ninth Circuit found:

Swartz violated the Fourth Amendment. It is inconceivable that any reasonable officer could have thought that he or she could kill J.A. for no reason. Thus, Swartz lacks qualified immunity.

The Fourth Amendment prohibits law enforcement officers from using “objectively unreasonable” force to “seize” a person, and shooting someone is a “seizure.” There was also no question that J.A.’s rights were “clearly established.”

[E]very reasonable law enforcement officer should know that “officers may not shoot to kill unless, at a minimum, the suspect presents an immediate threat to the officer or others, or is fleeing and his escape will result in a serious threat of injury to persons.” And “whenever practicable, a warning must be given before deadly force is employed.”

The implicit holding the case is that the Ninth Circuit was outraged by the claim that Swartz could escape liability because J.A. was standing in a foreign country when he was shot, not in the United States. J.A.’s mother was permitted to pursue her lawsuit. Swartz will face trial. 

What might be the most notable aspect of the Swartz case is that the opinion was authored by a Fairbanksan, Senior Judge Andrew J. Kleinfeld. WC has known Judge Kleinfeld since the mid-1970s. He is a staunch conservative, and a staunchly conservative jurist. The Ninth Circuit may have a reputation among Republicans for being too liberal. WC can promise you that, to the extent the reputation may be true, it’s not because of Andy Kleinfeld, who is about as conservative as they come.

There have been other notable courtroom losses for the Trump Administration in the last week, including U.S. District Judge Emmet G. Sullivan’s slap-down of AG Jeff Sessions for deporting a woman in the middle of her appeal. He ordered the airplane flying her out be turned around, and threatened Sessions with contempt.U.S. District Judge Dana M. Sabraw – a George W. Bush appointee –  reamed a government lawyer because  572 children who were taken from their parents or guardians remain in government custody and still have not been reunited with their families as the result of Trump’s family separation policy. “The reality is, for every parent who is not located, there will be a permanently orphaned child, and that is 100 percent the responsibility of the administration.”

WC isn’t always proud of the American legal system. But sometimes, at least once in a while, it does what it was intended to do by the Founding Fathers: counterbalance the unreason, illegality and failures of the other two branches of government.



  1. For a given definition of “conservative,” of course. A “conservative” would usually respect the rule of precedent, the doctrine of stare decisis and the policies behind them. Trump appointees? Not so much. You might even call the Trump appointees “radicals,” throwing the legal equivalent of Molotov cocktails at the rule of law.