Short Circuit: A roundup of recent federal court decisions

Nunchucks, West Nile encephalitis, and a black foot.

|The Volokh Conspiracy |

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

A central tenet of property rights is that owners can exclude others from their property; what's mine is mine, not yours. So, urges an IJ amicus brief, the Supreme Court should review a California court of appeals decision forbidding an owner from excluding the public from his beachfront property (unless he obtains a "development" permit) and requiring him to run an unprofitable business on it.

  • Then-Secretary of State allegedly tells parents of Americans who died in Benghazi terrorist attack that amateur filmmaker is to blame, a falsehood. Four years later, the parents sue the Secretary alleging that terrorists accessed her private email server and used its contents to carry out the attack. D.C. Circuit: Can't sue over that yet; need to exhaust administrative remedies first.
  • Then-teen supplies gun, sits in passenger seat of getaway car outside robbery-turned-murder at Philadelphia jewelry store in 1990. Jury: Which is first-degree murder. Third Circuit: New trial. Seems likely that, because of bad instructions, the jury incorrectly attributed the shooter's intent to kill to the teen.
  • After the arrival of Uber, Philadelphia cab company earnings decrease 30 percent, the value of cab licenses drops 85 percent. Can cab companies sue Uber for attempting to monopolize the industry? That would be no fare, says the Third Circuit; the companies "have no right to exclude competitors from the taxicab market."
  • In 2004, upturned anchor embedded in Delaware River riverbed punctures single-hulled oil tanker, spilling 264,000 gallons of crude, a mere 900 feet from its destination after a 1,900-mile journey. (Single-hulled tankers are now banned from WOTUS.) Cleanup is successful, costs $143 million. Who pays? The shipping company and the gov't can recover much of their cleanup costs from the oil company, says the Third Circuit.
  • Maryland transit cop suspects he's found a stolen vehicle; he alerts the vehicle's owner, who gets a ride to the scene. Uh oh! The officer inquires whether the men in the car are in the country legally. They aren't. Suppress the ride giver's confession? No need, says the Fourth Circuit.
  • Lower court slaps attorney with $175k in sanctions, refers issue for possible disbarment for "habitual, bad faith misconduct." Wowza! Among other things, the attorney filed police report accusing opposing counsel of stalking and making terroristic threats, submitted over 100 court documents with ad hominem attacks (and often false statements) on opposing counsel, filed slander suit against opposing counsel's legal assistant, fabricated out of whole cloth an email to be used as evidence and lied to the court about doing so. Fifth Circuit: Affirmed.
  • Sexagenarian dies of West Nile encephalitis after bite from infected mosquito. Did he die an accidental death (for which his family gets an insurance payout) or of a disease (no payout)? Fifth Circuit: A jury could conclude the bite was an unforeseen accident and that his age, morbid obesity, diabetes, and hypertension did not contribute to his death. Case should not have been dismissed. Dissent: West Nile encephalitis is a disease.
  • At 2006 traffic stop, St. Tammany Parish, La. officers allegedly beat handcuffed suspect unconscious; he needs several facial reconstruction surgeries. His federal excessive force suit is stayed while he's tried in state court for felony aggravated flight. After a quick deliberation, he's acquitted in 2012, but prosecutors pursue additional charges based on the same 2006 incident. He declines to turn himself in, has been in the wind since 2013. Fifth Circuit: No need to enjoin the state's continued effort to try him.
  • Texas home health company seeks hearing to dispute accusation that it has overbilled Medicare. Gov't: Neat! But the backlog for a hearing is up to five years. In the meantime, pay $7.6 million. Company: That will force us into bankruptcy. Fifth Circuit: Which is a due process violation.
  • Allegation: Pretrial detainee's foot gets infected, stinks foully, turns black; he can't walk. Rapides Parish, La. jail staff decline to provide care. Ultimately, his toe must be amputated; his kidneys fail in hospital; he needs dialysis. District court: The jail's paramedics were practicing outside the scope of their training without physician supervision; the detainee can sue the sheriff for that. Fifth Circuit: Nope. Qualified immunity.
  • Distressed to see that a case has languished for nine years, Fifth Circuit attempts to goose district court judge into action. Judge responds that case will be resolved "soon." Fifth Circuit: Not good enough—MANDAMUS!
  • Allegation: Woman arrested at family BBQ sets seatbelt on fire, burns herself in attempt to escape squad car. Wayne County, Mich. jail staff do not abide by hospital's wound care instructions or provide her psychiatric medication. She ultimately needs a skin graft. Sixth Circuit: She can sue several staff.
  • Michigan state police sergeant alleges coworker sexually assaulted, harassed her; investigations result in no action. Boss demotes her, transfers her far from home and family. Illegal retaliation? Sixth Circuit (2014): District court shouldn't have excluded evidence of the demotion, among other things. Sixth Circuit (2016): No need to revisit $350k award in her favor. (Also, counsel should be careful not to make a series of misstatements to the court, particularly if all cut in favor of one's client.)
  • Allegation: Media, interested citizens convene impromptu press conference outside courtroom at criminal trial of former Hamilton County, Ohio judge. Police demand that two individuals, both African-American, stop filming and search their recording devices. They're handcuffed, arrested, and bogus charges are filed against them. One loses her job because of the incident. Police do not interfere with the other press conferees, who are white. Sixth Circuit: No qualified immunity.
  • Prior to indictment, Memphis robbery suspect is offered plea deal. Yikes! It expires, and he ultimately gets a sentence 10 years longer than what had been on offer. He says his attorney failed to relay the plea offer, thereby violating his Sixth Amendment right to effective counsel. Sixth Circuit (sitting en banc): There is no such right prior to indictment. Concurrence (dubitante): The Founders would disagree; the Supreme Court should reconsider its precedent here.
  • Police called to home of suicidal Ankeny, Iowa woman say she waved gun around, gave them thousand-yard stare. They shoot her dead. Excessive force? Eighth Circuit: Qualified immunity.
  • Police called to home of schizophrenic Jasper County, Mo. man place him in "modified bent arm lock" after he does not submit to cuffing. The man moves suddenly, snapping his own arm. He continues to resist, however, so police use nunchucks to pry, restrain his other arm and tase him repeatedly. Excessive force? Eighth Circuit: Qualified immunity.
  • DEA agents interview pilot in the pay of a pair of Paraguayans. No drugs found; he's not arrested. But wait! His plane's auxiliary fuel system (powered by cigarette lighter and secured to plane's wing by duct tape) is not FAA compliant. Eleventh Circuit: Which is illegal. (He gets a year's probation and a $100 fine.)
  • And in en banc news, the Fifth Circuit (over six dissents) will not reconsider its ruling that a pretrial detainee held (on bogus charges) for 96 days before seeing a judge can sue Choctaw County, Miss. sheriff. (We discussed the case on the podcast.)

Friends, Little Pink House, a major motion picture that tells the story of IJ client Susette Kelo's Supreme Court showdown over the abuse of eminent domain, will be screened in select theaters across the nation starting April 20. The film stars two-time Academy Award nominee Catherine Keener and Emmy nominee Jeanne Tripplehorn—and also features an original song by rock legend David Crosby. Click here to watch the trailer and here for locations and show times. Not playing near you? Setting up a local screening is easy! Click here for more info.

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  1. “Allegation: Pretrial detainee’s foot gets infected, stinks foully, turns black; he can’t walk. Rapides Parish, La. jail staff decline to provide care. Ultimately, his toe must be amputated; his kidneys fail in hospital; he needs dialysis. District court: The jail’s paramedics were practicing outside the scope of their training without physician supervision; the detainee can sue the sheriff for that. Fifth Circuit: Nope. Qualified immunity.”

    Seriously? QI is a joke. I am happy to see the 6th Circuit videotape case. At this point, cops around America should be on notice that filming them in public is protected by the 1st Amendment, unless they are interfering with the police. Period.

    1. “QI is a joke.”

      It’s not funny. 🙂

      1. It’s the “ha ha only serious” kind of joke.

    2. The 6th is beginning to look like the best circuit on QI. In addition to the videotape case, they denied QI in the case of the suspect with the burns that was deprived of proper after care. I would be willing to bet that the 8th would have granted QI in that case.

      1. Sixth Circuit is kind of a mixed bag. Ninth is generally best, I think. Here is a bad Sixth Circuit case John tipped me off to a year, or so, ago: http://www.opn.ca6.uscourts.go…..93p-06.pdf

        1. That case is nowhere near as bad as the cases listed above in the 5th and 8th circuits.

          1. 6C is not as bad as 5C, for sure. Here is a link if you want a broad overview of how 6C is doing:


            i could read these cases for hours except the prisoner ones, which are often ridiculous (but sometimes not).

            1. “Here is a link if you want a broad overview of how 6C is doing:”

              Which says not a lot without comparisons to every other circuit. I said the 6th is starting to look the best on QI not that the look great on QI.

              By the way stop using tiny url links. They are frequently used elsewhere to hid malicious links and aren’t needed here if you learn how to do HTML links

              1. Yes, yes, I agree. If one really wants to get one’ arms around the lay of the land on the state of QI law then one would have to review dozens of QI cases a month for years. And very few have done that, or will do that.

                1. “And very few have done that, or will do that.”

                  Except regular readers of Short Circuit, which has 3 or 4 QI cases every week.

                  1. 1. Reviewing an SC summary is not the same as reviewing an opinion. 2. SC is selective about what cases it covers (not a bad thing, but not a substitute for independent review for present purposes). 3. SC hasn’t been around that long. 4. None of this should have taken as a negative criticism of SC, which is great.

    3. I agree with the general condemnation of QI.

      It is interesting to me how many commenters here, who have wildly divergent political views, are in agreement on this issue.

      The argument in the LA case is amazing. “Well, gee. It never happened before, so what’s the big deal?”

      “Gee, officer. This is the first time I ever killed anyone, so why the fuss?”

      1. QI would not be nearly as bad as it is (it would still be unjust) if courts were required to firmly establish the right at issue before granting QI in the first instance.

        One of the biggest problems with QI law is that the district and circuit courts will grant QI without even considering if the right claimed to be violated is valid.

        This approach allows them to continue to grant QI repeatedly in identical fact patterns over spans of decades.

        Much, not necessarily all, of the problems with QI would be alleviated if courts were required to consider the established right prong first before considering the other prongs of QI analysis. If the right is not valid, then the case should be dismissed on the merits, not on QI, if the right is valid, establish that properly in the first case where in comes up so police are on notice going forward.

        1. It’s the “clearly established right” prong that’s the problem though, isn’t it? In the two-step QI dance, the court determines (in either order): 1) has a right been violated; and 2) was the right clearly eastablished at the time of the incident. Number 2 is where all the shenanigans happen. Anytime the court doesn’t have a case on all fours in print two, they grant QI. Maybe they should always assess whether there has been a violation first. No violation, no QI necessary.

          In the 9th Circuit, in my experience, this is generally the order of analysis, but it doesn’t seem to matter. They go hog wild on prong 2.

          1. Except many of the QI decisions highlighted here seem to skip step 1 altogether, so in step 2 they get to say not previously established without establishing it this time either.

  2. “That would be no fare”

    We can’t have any free riders.

    This problem should be addressed in an omnibus bill.

    1. Eidde: Ow. And ow!

      (I’ll have to remember them)

    2. You’re just trying to get on the gravy train.

    3. LMAO!

      Damn I wanted to comment on how Uber charges so no free riders but/for the government graft system.

  3. I’m surprised by the number of QI cases, and disheartened by the number protecting bad cops with QI.

    1. There were two cases denied QI in the 6th circuit, two egregious cases where the 8th granted QI, and one egregious case where the 5th granted QI.

      Anyone know when the last time the 8th denied QI was?

  4. “That would be no fare”

    I giggled.

  5. >Dissent: West Nile encephalitis is a disease.

    Inaccurate summary. The majority ruled that if the accident causes a disease, that counts. They didn’t actually rule that it’s not a disease. The dissent thinks that although it is an unusual situation for an accident to cause a disease, the policy needs to be interpreted literally to exclude diseases.

    Also, the title of this should be changed to “Weekly List of Why Qualified Immunity is Unjust”.

    1. Also, the title of this should be changed to “Weekly List of Why Qualified Immunity is Unjust”.

      I second the motion.

    2. Not a lot of infectious diseases are caused intentionally, so that would be saying pretty much all deaths from infectious diseases (and even some cancers!) would qualify

    3. Gee, there is a joke somewhere in this mix of accidental infectious disease and qualified immunity ….

  6. For all future editions of Short Circuit please edit out all references that rule in favor of QI. I can’t take it anymore

  7. I’m not sure I understand the QI thing; does it just mean you can’t sue the Sheriff (or whoever) as an individual, or does it mean you can’t sue at all?

    1. In theory, you can still sue the department or the city/county, but only for actions taken or not taken by that entity, separate from the actions of the agent who was given QI.

      That is, you have to sue on the grounds that city/department policy in itself is a violation of your rights or that the department/city was negligent in it’s supervision of the agent. In general, its much easier to win a suit against an officer (if you can get past QI) than it is to win against the city/department on a policy or negligent supervision claim.

      1. I wonder if one can use the fact that the officer received no adverse actions as evidence against the city/department on a policy or negligent supervision claim?

  8. “Then-Secretary of State allegedly tells parents of Americans who died in Benghazi terrorist attack that amateur filmmaker is to blame, a falsehood.”

    Hillary Clinton. The gift that keeps on giving.

    1. Why “allegedly”? It doesn’t seem to be disputed that she tole them that, she was saying it publicly, too.

      1. The allegedly is a direct quote from the blurb about that particular case in the article. Your question should be directed to Mr Ross rather than Jerry B.

      2. Allegedly is the catch-all phrase to prevent court case filings. Similar to the way air traffic controllers will use the word “appears” instead of stating directly; i.e. it appears your landing gear is not down, even though it is easily seen that the landing gear isn’t down.

    2. This was a really depressing case to read. I do not know if the two plaintiffs are right-wing nuts. But my guess is that they listen to right-wing nuts on radio and/or cable TV. I can absolutely understand how any grieving parent would, psychologically, want to find someone to blame for the loss of their son. Of course. And I guess that if you listen to enough insane blather from Hannity et al, then an uber-vulnerable person could start to believe even the most idiotic stuff. Even assuming the parent had normal intelligence. Very very depressing.

      The analog would be a case where parents had sued W. Bush after the 9/11 attacks.

      But this case brings up a larger point. I hope the law always will allow people to reasonably defend themselves once a public accusation has been made. If you accuse me of X, then I should be able to say “I did not do X.” without fear of a defamation lawsuit. I should be able to say, “I did not do X. Any such accusation is false.” w/o that same fear. I do get that what Trump did–specifically say that his accusers were liars–was different than denying the accusation. But it’s not like those two responses are miles apart.

      Now, I might like the result re Trump, due to his racism, sexual assaults, pathological lying, and all-around asshattery. But what goes around comes around, and I’d like to see robust free speech, even when it inures to the benefit of Nazis, Trump, Clinton (if you’re on the other side of the aisle), et al.

      1. Unfortunately it is well documented that HRC blamed the attack on the Benghazi consulate on the YouTube video publicly while telling her daughter that it was terrorists. Not to mention that the Obama admin did put the video maker in jail as well as UN Ambassador Rice and other admin personnel making the same accusation.

        Perhaps HRC is not remembering correctly just like her landing in Bosnia under fire although I don’t believe a young girl handing her flowers on the tarmac would be considered as such.

        1. Flame,
          All of what you said is true. But, so what? (in the context of this case…she, obviously, had nothing to do with the decision to put the filmmaker in jail.) How does lying (or negligently repeating false information) possibly promote infliction of emotional distress?

          She lied re the genesis of the attack. But, again, so what? How on earth does that lead to legal civil liability? Colin Powell lied (or was given dreadful information and repeated it) about Iraq’s weapon’s capacity. That falsehood helped lead to hundreds of thousands of dead and maimed Americans and Iraqi citizens. And billions (and billions and billions) of money pissed away in an unnecessary war. Did any grieving parents sue Colin Powell for this? I don’t think so. (Although, not having researched this; it’s possible that someone did and it just wasn’t publicized.)

          On the other hand; Donald Trump seems to have lied about having Mexico pay for the wall. I can think of about 60 million Clinton supporters and about 15 million Trump supporters would would happily be a plaintiff in a suit against Trump…breach of oral contract, intentional infliction of emotional distress, and so on. Can I sue Prez Bush, for nominating Clarence Thomas, when he said that he was the best qualified? (He was not the 100th most qualified…but he was black, he was deeply conservative, and it was-and-is faithful to his convictions/believes.)


          1. … [cont] …

            Nope, I’d rather that we let politicians keep lying to us (as pretty much every federal politician has done, a thousand times, ever since they crawled out of the primordial ooze). If we don’t like that politician’s particular lies, then we’ll vote him/her out at the next election. And if that person is not on the ballot, then we’ll punish that party in the next election(s).

            As my orthopedic surgeon said to me, “I need to really prescribe 100mg of “suck-it-up” to you.

            I’m not gonna call any parent who lost a kid a ‘delicate snowflake.’ But the lawsuit itself certainly reeks of snowflakiness.

  9. Can we get two editions of this: Short Circuit QI edition and Short Circuit Rest Of ’em edition.

    They are both important topics, but the former tends to suck all the oxygen out of the room (comments?).

    1. Works for me.

  10. Do libertarians believe in private ownership of the sea floor? That’s what the “beachfront” property dispute is really about. If you believe that the ocean is public, then a line has to be drawn somewhere where “beachfront” property ends, since the sea does not keep still, and it’s reasonable to require public access to the sea. If you believe owning a piece of the ocean is OK, then, again, the exact seaside boundary of a “beachfront” property needs to be defined to justify excluding others from it. Traditional, vague ways of bounding shoreline properties such as “the normal high tide mark” have led to these disputes about public access.

    1. The amicus brief would be more convincing if it actually told us something about the decision and the dispute that led to it. Pages of “Here are some quotes that support the principle we claim is involved,” don’t really help me understand the issue.

    2. If the public wants access to the sea in a particular area where there isn’t an already-established easement, the public purse can buy access to the sea in that area, with just compensation to the current owner of the property the public wants to walk all over to get to the sea.

      1. But in California, as in Texas where the “Institute for Justice” got a longstanding law overturned, property owners have NEVER owned the land below the high tideline, and public land has always had an easement.

        This is because the original land grants were granted under the crown of Spain and/or its successors in Mexico, and later Texas, and followed the law of Spain. In CA the treaty of Guadeloupe Hidalgo confirmed all of these grants.

        This is like water or mineral rights being sold separately, the possible loss of use was baked into the deed.

      2. I’m now confused if this is the actual R.ALK or a different one given the comment. The post seems to be very right wing in comparison to the normal R.ALKs..

        1. I also thought this. But who knows…maybe the good Rev has a few blind spots. But it’s pretty rare for him to miss the obvious legal point (noted later by RoyMo). So, my guess is that it’s a spoof. (An homage???)

    3. It takes a bit of digging, because even the amicus brief linked doesn’t give details, but apparently the people who owned the property where there was an access road to Martins Beach, used to allow access and rent parking spaces on their beachfront lot, which was not part of the public beach (being above mean high tide or whatever Cali’s law is). A new owner blocked the access road, and the Surfrider Foundation is suing, claiming that the owner must allow access to the public beach through his private land.

      Here’s an op/ed by the CEO of the Surfrider Foundation explaining their viewpoint.


      1. From that article: “Khosla suggested the state pay $30 million for the 6.4 acres when, according to the commission’s appraisals, that portion of land is worth $360,000”

        I’m LMAO at the commission’s appraisal. There is no way, especially in CA, that 6.4 acres near a beach is worth only $360K. Although $30M may be too high depending on whether it will be developed or left natural as before.

        It appears that the biggest obstacle for the case is that there was never an established public access. The previous owner allowed access & parking while the new owner does not allow access.

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