An override stamp on legislation limiting LGBTQ+ classroom instruction in the early grades on Wednesday, Aug. 16, 2023. (AP Photo/Hannah Schoenbaum)

Last Wednesday, the General Assembly overrode two of Gov. Roy Cooper’s vetoes to enact laws that restrict transgender youth—continuing a trend sweeping Republican-run states.

It’s unclear, however, whether either will pass constitutional muster.  

The first, HB 808, bars transgender children from obtaining gender-affirming care, including hormone therapy and surgery. But federal judges in Arkansas, Kentucky, Tennessee, Indiana, and Georgia—including some appointed by President Donald Trump—have blocked all or part of similar legislation. A federal judge issued a narrowly tailored injunction in a Florida case, and Oklahoma officials agreed not to enforce their state’s ban on gender-affirming procedures while challenges persist. 

However, a conservative Sixth Circuit Court of Appeals panel later allowed Tennessee’s ban to take effect, and on Monday, three 11th Circuit judges—all Trump appointees—reinstated Alabama’s ban on gender-affirming care. Their decision will likely affect the cases in Florida and Georgia. 

The second, HB 574, prohibits anyone assigned male at birth from playing girls’ sports in school. The Fourth Circuit Court of Appeals, whose jurisdiction includes North Carolina, has blocked a similar law out of West Virginia, and in April, the U.S. Supreme Court let that injunction stand. Meanwhile, the Biden administration has proposed rules that would prohibit states from imposing broad bans on transgender children’s participation in school sports. 

A third bill passed over Cooper’s veto last week, SB 49, might prove more difficult for opponents to fight. The so-called Parents’ Bill of Rights includes a provision loosely borrowed from Florida’s “Don’t Say Gay” law that bars K-4 classrooms from discussing “gender identity, sexual activity, or sexuality.” But in Florida, challenges to that legislation have run aground on standing: A judge has declared that parents, teachers, and students can’t show they’ve been harmed, so they can’t sue.

It goes without saying that these laws will inevitably end up before the Supreme Court in the near future.

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What Could Possibly Go Wrong?
(Or, eCourts Comes to Mecklenburg)

eCourts, the long-delayed $100 million system meant to digitize court records—and now the subject of a class-action lawsuit—is finally coming to Mecklenburg County, the N.C. Administrative Office of the Courts announced Friday. 

Officials had planned to unveil eCourts in Mecklenburg on May 8, but pushed it back indefinitely. The new date is October 9. 

The system launched in four pilot counties—Wake, Harnett, Lee and Johnston—on February 13. Ever since, attorneys in all four counties have complained about slowed courtrooms, overwhelmed clerks, technological disparities, and errors.

The Assembly reported in March that a Wake County man spent nearly a month in jail after he should have been released on a misdemeanor trespassing charge. Wake County District Attorney Lorrin Freeman blamed paperwork errors that she partly attributed to clerks figuring out the eCourts system. 

NCAOC officials have maintained that no one has been wrongfully detained because of eCourts. But the lawsuit filed in May alleges otherwise. And Tyler Technologies—the Texas-based company that built eCourts—has also faced similar lawsuits in several other states.

In a news release Friday, NCAOC director Ryan Boyce touted eCourts as a success. “This vital effort to transform our state courts and deliver digital access to the justice system for millions of North Carolinians continues to progress thanks to the tireless work of local officials and the legal community,” Boyce said. 

NCAOC officials said they believe eCourts can still be implemented in all 100 counties by the end of 2025—the courts system’s original goal.

eCourts will “revolutionize our courts system,” Tyler Technologies promised.

On Our Radar

>> Azucena Aleman v. City of Charlotte and David Guerra

Last week, a split Fourth Circuit Court of Appeals panel rejected Charlotte police officer David Guerra’s qualified immunity defense in the fatal September 6, 2017, shooting of Ruben Galindo.

Galindo, then 30 and recently diagnosed with what court records call “paranoia,” had called 911 and said he wanted to turn himself in. He asked the dispatcher to send Spanish-speaking officers. He said he had a gun but said it wasn’t loaded and that he would surrender it. 

None of the four cops dispatched to his apartment complex—Guerra included—spoke Spanish fluently, and they decided not to wait for an officer who did to arrive. Instead, Guerra shouted, “Ruben, policia, manos, manos!” at Galindo, who was standing on his patio. Galindo raised his left hand—in which he held the gun upside down, another officer testified—straight in the air, above his shoulder. “Put it down!” Guerra yelled in English. In response, Galindo raised his right hand, which did not hold a weapon. Guerra fired twice, killing him. 

Two days later—before watching the body-camera footage—Guerra told investigators that Galindo lowered his left hand and pointed the weapon at him. After watching the footage, he conceded that “when he shot Galindo, both of Galindo’s arms were raised,” though he maintained “that Galindo had pivoted his pistol” toward police, court records say. (The footage did not appear to capture this.) 

After Galindo’s girlfriend sued, Guerra and the city of Charlotte argued that the shooting was “objectively reasonable,” and District Court Judge Robert Conrad agreed. 

Fourth Circuit Judges Robert King and Barbara Milano Keenan took a different view. But in qualified immunity cases, the question isn’t just whether a person’s constitutional rights were violated, but whether those rights were “clearly established” before the violation. 

King and Keenan said the question here was whether Guerra should have known in September 2017 that he could not use “deadly force against a suspect who is holding a firearm in his hand and ignoring commands to drop the weapon, but who is standing still in a position of surrender, is not firing the weapon or aiming it at any person, and is not otherwise making a furtive or threatening movement.”

Among other cases, they cited a 2013 Fourth Circuit ruling that said that “the mere possession of a firearm by a suspect is not enough to permit the use of deadly force.” They sent the case back to the district court. 

But in his dissent, Judge Julius Richardson pointed out a potential complication that might find its way to the Supreme Court: The cases on which the Fourth Circuit based its decision weren’t similar to this one—a prerequisite for showing “clearly established” rights. The majority, he wrote, has not shown that “a reasonable officer would have known that using deadly force in these circumstances was clearly unlawful, beyond debate” based on case law at the time of the shooting. 

Qualified immunity has come under increasing scrutiny in recent years, and Justices Sonia Sotomayor and Clarence Thomas—for very different reasons—have raised questions about the doctrine. But the Fourth Circuit hasn’t rejected it. 

So far in 2023, it issued eight opinions related to qualified immunity for law enforcement. It has sided with police half of the time. But the judges have rejected qualified immunity claims in the fatal shooting of Danquirs Franklin by Charlotte Officer Wende Kerl, and in Durham detectives’ alleged withholding of exculpatory evidence from a person convicted of murder. 

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Power to the People

Durham is undertaking a third round of participatory budgeting, giving residents a more direct say in how city money is spent.

Duke’s Gender Pay Lawsuit

Biomedical engineer Rachel Lance was labeled a ‘troublemaker’ after she complained that Duke pays her significantly less than male colleagues.

Inside the Grand Jury’s Black Box

A twist in the TRU Colors murder trial briefly pierced the veil of North Carolina’s opaque proceedings.

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