Short Circuit: A Roundup of Recent Federal Court Decisions

Electron microscopy, therapeutic insoles, and (allegedly) thieving police.

|The Volokh Conspiracy |

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

New on the podcast: In which the Ninth Circuit holds that Fresno, Calif. police officers, who allegedly stole $226k from plaintiffs' homes and businesses, are shielded from suit by qualified immunity. Click here for iTunes.

  • Defendants accused of murdering Buffalo, N.Y. drug dealer, among other crimes, spend over five years in pretrial detention after key evidence goes missing and prosecutors take nearly three years to decide whether to seek the death penalty. (The evidence was eventually found in the home of a retired detective.) At trial, the jury deadlocks. Second Circuit (over a partial dissent): No retrial. The delay violated their Sixth Amendment right to a speedy trial.
  • Federal law requires certain time spent in state detention to count against federal prison sentences. So that's how federal prison officials count, and they release inmates accordingly. Can a judge sanction prison officials for that? Quoth the Fifth Circuit: "Threatening government officials with individual contempt sanctions for complying with federal law … is a clear abuse of discretion."
  • Iranian metallurgist is doing electron microscopy at Case Western Reserve University, in Cleveland. The feds think he's also passing secrets back to Iran (about how its navy could better resist saltwater corrosion), so they seek a warrant based on the metallurgist's visa application, which suspiciously never mentioned Cleveland. Enough for probable cause? Sixth Circuit: It matters not. A magistrate gave them a warrant, so even if it was legally defective, the feds were entitled to rely on it in good faith.
  • Illinois man is convicted for distributing a kilogram of cocaine, even though the prosecution produced no witnesses to the transaction, nor any direct evidence that he ever possessed cocaine, drug paraphernalia, or large amounts of cash. Was it enough that he (allegedly) used drug slang in phone calls? Seventh Circuit (after providing an interesting primer on drug slang): Convictions reversed. This case should never have gone to a jury.
  • Man is convicted of falsely representing that his company's therapeutic shoe insoles were Medicare approved. As a felon, he is prohibited by both federal and Wisconsin law from possessing firearms. A Second Amendment violation? Seventh Circuit: Mail fraud is a serious crime; no problem here. Dissent: You can take guns away from felons who are dangerous, but not from those who are merely unvirtuous.
  • Write it on your doorposts: The longstanding tax exemption for ministerial housing does not violate the Establishment Clause. Thus holds the Seventh Circuit, rejecting a challenge by the Freedom From Religion Foundation, a self-described "nonprophet nonprofit."
  • Fresno, Calif. police seize cash pursuant to a search warrant, give property owners an inventory sheet stating they seized $50k. Allegation: The cops actually seized $276k, stole the difference. Ninth Circuit: It isn't clearly established that cops can't steal things they've seized with a search warrant, so they get qualified immunity.
  • Woman discovers that her high school sophomore son's journal contains graphic depictions of violence and a hit list of 22 students who "must die." She tells a therapist; the therapist informs Sherwood, Ore. police, who search the home and find a rifle and ammo. Police decline to pursue criminal charges but inform the school district, which then expels the teen for a year. Ninth Circuit: School officials can indeed punish students for off-campus speech that is an identifiable and credible threat of school violence.
  • Family brings a bunch of claims about the way Palmdale, Calif. city code enforcers shut down the family motel. Ninth Circuit: Most of the claims can't proceed in federal court while the city goes after the motel in state court. But that Fourth Amendment allegation—that during a code inspection the sheriff held the family's kids at gunpoint for an hour and a half? That claim can go right ahead. [Ed.'s Note: IJ has a history of tangling with the lawyers for Palmdale.]
  • Out of nowhere, Phoenix, Ariz. prison inmate stabs cellmate 13 times. Inmate: Instead of an insanity defense, I want to present the defense of "demonic possession." Appointed counsel: That's not a thing, and I'm absolutely going to present an insanity defense. Ninth Circuit: Appointed counsel violated the inmate's Sixth Amendment rights. The inmate repeatedly objected to the insanity defense, and the buck stops with him.
  • Kansas State University students bring Title IX suits, claiming school was deliberately indifferent to their complaints of having been raped by other students. KSU: To make out a Title IX claim, you need to show that our indifference caused you to actually get raped, and you told us about the rapes only after-the-fact. Tenth Circuit: It's enough for the students to allege that your indifference made them "vulnerable" to future harassment, not that they were actually harassed again. So the cases can proceed.
  • In 2012, gunman uses Bushmaster XM15-E2S semiautomatic rifle to murder 26 people at Newtown, Conn. elementary school. Can the manufacturer, distributor, and retailer of the rifle be sued under state law even though federal law broadly immunizes them of liability for crimes committed by third parties using their weapons? Connecticut Supreme Court (by a 4–3 vote): The suit can proceed. If the rifles were marketed for civilians to use in offensive, military-style combat missions (as the plaintiffs allege), such marketing violates state advertising law. And a seller knowingly violating state law applicable to a gun's sale is not entitled to federal immunity.
  • Missouri trial courts send people to jail, charge them room-and-board as "court costs," then send them back to jail if they can't pay, yielding—you guessed it—more court costs. Missouri Supreme Court: Cut it out.
  • And in en banc news, the Eleventh Circuit will not revisit its previous decision concluding that a man who brandished a gun while robbing (or attempting to rob) two Miami-area stores committed a crime of violence. Fireworks erupt in an intra-circuit debate about the precedential effect of orders (which are uncontested and unappealable) disallowing successive habeas petitions.

In January, 30 property owners in Leonia, New Jersey got a nasty surprise. The city had included their properties in a condemnation redevelopment study area, the first step toward authorizing the condemnation of their homes and businesses via eminent domain and flipping them to a private developer. Sleepless nights ensued, but with help from IJ's Activism Team, they organized to fight city hall. And this week the city council backed off, passing a new resolution that removes the threat of eminent domain (but that will allow for voluntary redevelopment). At IJ, we're happy to fight eminent domain in court, but we're even happier when eminent domain gets taken off the table before it's time for a lawsuit, sparing property owners the years of anxiety and uncertainty that come with litigation. Click here to read more.

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110 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. “Ninth Circuit”

    “Qualified immunity”

    These are words indicating the illegitimacy and failure of our Judicial system. I’m honestly surprised more cops aren’t simply murdered for their actions after the courts continuously give zero f***s about their misconduct.

    1. That one is one of the worst excuses for qualified immunity I can remember. I’m almost willing to believe the Ninth is trying to rule so badly that the Supreme Court will get rid of qualified immunity altogether.

      It isn’t clearly established that cops can’t steal things they’ve seized with a search warrant, so they get qualified immunity.

      Why can’t civilians get such leniency? If I steal something walking backwards, is that clearly established precedent? I kinda doubt it. Can I get qualified immunity? I kinda doubt it.

      1. I’m almost willing to believe the Ninth is trying to rule so badly that the Supreme Court will get rid of qualified immunity altogether.

        Close: in this case, the author is lying about what the case actually says in order to get people riled up in service of his anti-qualified immunity agenda. (From the tenor of the comments so far, it appears to be working.)

        1. Direct quotes from opinion: “The panel determined that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property that is seized pursuant to a warrant. ”

          “Because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers are entitled to qualified immunity. “

          1. So the because the cop was unaware that, if caught stealing, he could be sued to pay it back, he can’t be sued to pay it back?

            As if knowledge of that was additional deterrent, and it’s not fair to him.

            1. “So the because the cop was unaware that, if caught stealing, he could be sued to pay it back, he can’t be sued to pay it back?”

              Expect a different result when the cops are on trial facing the state. (Because the state won’t be alleging violation of the Constitution, they’ll be alleging conversion, and various forms of official misconduct.)

      2. Why does stealing by cops not be considered ‘stealing’?

        1. Who did they steal FROM?

          The state had a warrant authorizing seizure of the money, and the police are agents of the state. So, the state seized the money. Then the cops stole the money… from the state. They did not steal any money from the plaintiffs, who had all their money seized by the state and therefore didn’t have any money to be stolen.

          1. They actually stole it from the owners – when they fraudulently claimed only $50k, as indicated on the property log/receipt.

            But even assuming your interpretation is correct, they stole it from the state.

            1. “But even assuming your interpretation is correct, they stole it from the state.”

              Yeah. They stole it from the state. Who isn’t the one suing them.

              Can A sue B because B stole from C?

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          2. That’s not a correct analysis. When the government seizes property pursuant to a warrant, that’s about possession, not ownership. The plaintiffs remained owners of the money.

            1. “The plaintiffs remained owners of the money.”

              Then what are they complaining about?

              1. Then what are they complaining about?

                That it was stolen from them. Please try to keep up.

                (Are you so ignorant that you don’t understand the difference between possession and ownership?)

                1. “That it was stolen from them. Please try to keep up.”

                  You said they retained ownership. Having trouble keeping up with your own argument?

                  1. So the answer to my question is yes: you are so ignorant that you don’t understand the difference between possession and ownership.

                    When the government seizes something pursuant to a warrant, or when a thief steals something, that deprives the owner of possession, not ownership.

                    1. “So the answer to my question is yes: you are so ignorant that you don’t understand the difference between possession and ownership.”

                      The answer is yes, you are so lacking in humor that you missed the joke entirely, AND got huffy about it.

    2. From the decision:

      Nor is this “one of those rare cases in which the
      constitutional right at issue is defined by a standard that is so
      ‘obvious’ that we must conclude . . . that qualified immunity
      is inapplicable, even without a case directly on point

      Here is my problem with this:

      1) The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated

      2) The right of the people to be secure in their persons, houses, papers, and effects, shall not be violated

      Why are the justices unable to understand that the 4th amendment does not only apply when there has been a seizure of property? 2) is corollary to 1) by any reasonable interpretation of the 4th amendment. If people do not have security in their property how can they ever be secure from its seizure. If an agent violates a citizens security (takes their shit) the agent has violated their rights, regardless of whether the violation occurred before or after a seizure.

      This is why I lose my mind when people suggest the Constitution gives us rights. The founders agreed and stated in the DOI that these rights are natural law, endowed to individuals by birth (by our Creator). The Constitution defines the limits of the rights of government agents, not of citizens. When you get it backwards (that the Constitution defines citizen’s rights) you get shitty decisions like this one.

      1. “The founders agreed and stated in the DOI that these rights are natural law, endowed to individuals by birth (by our Creator).”

        Chuckles the Snarky Piggy has it right.

        The founders also added the Ninth Amendment to leave no room for misunderstanding of the Bill of Rights.

    3. Hey, if had known that stealing was frowned upon…

    4. The judiciary is an arm of the government, which seeks to protect its own. Once you stop thinking of the judiciary as independent, the rest of this makes sense.

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  2. “Ninth Circuit: It isn’t clearly established that cops can’t steal things they’ve seized with a search warrant, so they get qualified immunity.”

    Excuse me?

    1. You don’t think that when you can and when you can’t steal things should or could be confusing to law enforcement officers?

    2. Disgusting, is it not?

    3. It’s bad, but it doesn’t mean the officers aren’t going to jail.

      It just means they can’t use them on constitutional grounds to get their money back.

      Look at it this way, if the officers fabricated the warrant so they could steal the money, then there would be no qualified immunity, but if the officers seized the money legally, and then stow it, I’m not sure why the victims get a greater level of constitutional protection than someone that merely had his money stolen by criminals or a rogue cop acting without the color of authority.

      1. Right. Whether one likes qualified immunity or not, the issue is not whether the conduct was clearly established as illegal, but whether the conduct was a clearly established violation of a constitutional right. As Kazinski points out, theft is just theft.

        The OP seems to purposely obfuscate this distinction. I believe all people recognize that it IS clearly established that cops can’t steal what they seize. To the extent the OP suggests that the court determined otherwise is absurd.

        1. FWIW, I also think the court was wrong here. Using the cover of state power (to search and seize) to commit a theft seems like a violation of a constitutional right to me.

          The OP could have made its point without making the opinion (more) farcical.

          1. “FWIW, I also think the court was wrong here. Using the cover of state power (to search and seize) to commit a theft seems like a violation of a constitutional right to me.”

            The case was pleaded incorrectly and filed in the wrong court.

            Instead of claiming a Constitutional violation in federal court, they should have filed a tort claim in state court. The state seized $270K”, and returned $50K, because the paperwork wasn’t done correctly and the cops converted the other $220K. So you sue the state to return the other $220K, and let them try to get it back from the cops who stole it from them.

            The federal courts don’t want to have every person who has money seized (with a warrant) showing up in federal court, so they laid down the law that money seized with a warrant isn’t a Constitutional violation (which is ALSO pretty commonsense, if you can let go of your outrage long enough to think it through).

            1. I hate it when I agree with you.

      2. “I’m not sure why the victims get a greater level of constitutional protection than someone that merely had his money stolen by criminals or a rogue cop acting without the color of authority.”

        Because Section 1983 was intended to provide a redress for people whose rights were violated under color of state law.

  3. “It isn’t clearly established that cops can’t steal things ”

    This is such a massive display of mind boggling stupidity that I don’t think it can ever be topped.

    Each and every judge that voted for this needs to be impeached and disbarred.

    1. Then let a cop steal them penniless, and rule that it is not clearly established precedent that cops can’t bite the hand that feeds them.

    2. You’re right: that would be a pretty stupid thing to say. Which is probably why the panel didn’t say that. Instead, they said that it wasn’t clearly established that the thing that makes it illegal for cops to steal things is the Fourth or Fourteenth Amendment. They then went on to say:

      We sympathize with Appellants. They allege the theft of their personal property by police officers sworn to uphold the law. Appellants may very well have other means through which they may seek relief. [Footnote: Indeed, the district court noted in its Order Granting Defendants’ Motion for Summary Judgment that Appellants “had access to an adequate post-deprivation remedy under California tort law.”] But not all conduct that is improper or morally wrong violates the Constitution. Because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers are entitled to qualified immunity.

      1. “Because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from [gang rape] pursuant to a warrant, the City Officers are entitled to qualified immunity.””

        Well, if it’s the first time cops have gang-raped a suspect, how could they POSSIBLY know it’s not OK?
        There’s no EXACT precedent or statute saying it’s illegal!

        Stealing money and/or property from a suspect who hasn’t even seen a courtroom seems to me a flagrantly UNREASONABLE seizure, violating the 4th Amendment.
        Now I’m just a layman, but it seems *unreasonable* that officers could *legally* do whatever the fuck they want to a suspect as long as there’s no exact, point-for-point precedent telling them otherwise.
        THEFT is not something that needs precedent to tell you it’s wrong.
        There’s a legal principle (forget what it’s called, not a lawyer) stating that even ambiguously worded statutes shouldn’t lead to absurd outcomes, and I’m having a really hard time seeing how this isn’t entirely absurd and unjust.

        1. “Stealing money and/or property from a suspect who hasn’t even seen a courtroom seems to me a flagrantly UNREASONABLE seizure, violating the 4th Amendment.”

          Having your money taken away from you, pursuant to a warrant, is a perfectly reasonable seizure. The problem is the state not being able to give it all back because it was stolen from THEM.

          1. Whose property was it when it was stolen?

            1. “Whose property was it when it was stolen?”

              The thief’s.

              1. If it was his property, then he wouldn’t be a thief for taking it, would he?

            2. I would assume it still belonged to the suspects, even though seized, pending ultimate rulings on any court cases about it.

              Logically, the government is just the custodian of it until then.

          2. No what the quoted text clearly showed is “Yes, it’s illegal, but it’s not unconstitutional”. The money was legally seized. It was then stolen in a second action.

            1. Thank you. Easy to miss nuance when you just want to be outraged.

              The author, who generally posts great pieces otherwise, didn’t help with the inflammatory blurb.

        2. Owen, stealing isn’t OK, and it isn’t legal, and the Ninth didn’t say it was.
          There are a bunch of laws that still make those cops liable, to the state and to their victims.
          The Ninth only said there was one particular federal law that did not apply here.

          1. Nope. The fourteenth says that the state can’t deprive people of their property without due process. Stealing someone’s property, even with a warrant to seize it, clearly does that. The ninth is full of shit here.

            1. Well, I didn’t say they were right, but the court did address this, citing a Seventh circuit case Lee v. City of Chicago which rejected a substantive due process claim arising from interference with a property interest, saying

              Because [plaintiff]’s substantive-due-process claim does not implicate a fundamental right and involves only the deprivation of a property interest, he must show as an initial matter either that state-law remedies are inadequate or that an independent constitutional right has been violated.

              I understand you may disagree, but how do you sustain an assertion that your result is not only correct but clearly established (as it must be to defeat QI) when the most relevant case law goes the other way?

            2. “The fourteenth says that the state can’t deprive people of their property without due process.”

              The state obtained a warrant before depriving people of their property. That’s what due process looks like.

              The plaintiffs have a negligence case against the state… they didn’t properly safeguard property in their possession, and they hired law enforcement agents who stole the money. But there’s no negligence clause in the 14th amendment. That’s a little Tort Claims Act cause of action, not Constitutional.

              1. The suit wasn’t against the state. It was against the officers. The officers weren’t negligent, so whether the plaintiffs have a cause of action for negligence is irrelevant. You’re embarrassing yourself here. If you’re capable of feeling embarrassed.

                1. EDIT: to be clear, the city was also named as a party, but that wasn’t the focus of this decision.

                2. “The suit wasn’t against the state.”

                  Duh. That’s why the plaintiff lost.

                  ” The officers weren’t negligent, so whether the plaintiffs have a cause of action for negligence is irrelevant.”

                  They lost the case against the officers, because seizing money pursuant to a valid warrant isn’t a Constitutional violation.
                  The state, having taken possession of the property IAW that warrant, then failed to properly secure it. That’s negligence, and what the plaintiffs SHOULD HAVE sued over. The state took their money, and then didn’t give it back.

                  ” You’re embarrassing yourself here.”
                  That would be true, if pointing out your errors was embarrassing for ME. It is not.

                  1. They lost the case against the officers, because seizing money pursuant to a valid warrant isn’t a Constitutional violation.

                    Double wrong.

                    First, the issue being addressed wasn’t seizing the money pursuant to a warrant; it was stealing the money while doing so.

                    Second, the court did not say that the officers’ conduct wasn’t a constitutional violation. It said that it wasn’t clearly established that it was, and therefore the court did not neee to decide whether it was. Big difference.

                    1. Based on the ability to read you failed to demonstrate downthread, I don’t think I’ll be taking your word for it about ANYTHING you claim you read.

  4. “improper or morally wrong violates the Constitution. Because Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant, the City Officers are entitled to qualified immunity.”

    I was hoping that reading the actual judgement would make it less ridiculous and am disappointed to find that it was absolutely that ridiculous.

  5. Woman discovers that her high school sophomore son’s journal contains graphic depictions of violence and a hit list of 22 students who “must die.” She tells a therapist; the therapist informs Sherwood, Ore. police, who search the home and find a rifle and ammo. Police decline to pursue criminal charges but inform the school district, which then expels the teen for a year. Ninth Circuit: School officials can indeed punish students for off-campus speech that is an identifiable and credible threat of school violence.

    I am reminded of a joke on SNL Weekend Update:

    “[Re: a recent fired postal employee “going postal”] This week, US Post Office officials said they fired the guy for keeping two magazines addressed to non-existent addresses. They admitted they could have let him off with a warning, but then ‘he wouldn’t come back and shoot everybody.’ “

  6. “Threatening government officials with individual contempt sanctions for complying with federal law ? is a clear abuse of discretion.”

    Um…duh?

    What am I missing that this was even in dispute?

    1. The judge didn’t think that the prison officials were complying with federal law. (She was wrong.) She also didn’t think she had held them in contempt. (She was also wrong about that.)

  7. The “how could they know they couldn’t steal” case sounds like an excellent vehicle for the Supreme Court to get rid of qualified immunity.

    If they choose to take it.

    1. My own take: If the cops choose to conduct a warrantless search or seizure, or in this case a search pursuant to warrant where they go beyond what the warrant authorizes, then I’d say they take the risk of a judge and jury finding their conduct unreasonable. If they want to avoid that risk, they should get a warrant (in good faith) and comply with its terms.

      1. Here is where a “chilling effect” can be a good thing – we should *want* the authorities to worry about doing warrantless searches/seizures (or seizures beyond what a warrant authorizes). Nothing like the fear of lawsuits to hopefully deter them from attempting dubious searches/seizures in the first place.

        (I know in practice the taxpayers could end up picking up the tab for police abuses)

        1. “Nothing like the fear of lawsuits to hopefully deter them from attempting dubious searches/seizures in the first place. ”

          Except, carried out, your plan leaves us with cops who never leave the station during their shift. Wouldn’t want to get sued, y’know. Next, the firefighters won’t fight any fires any more (“wouldn’t want to trespass on somebody’d property. We better stay here.”) Then it’ll get into the private sector, and eventually, everything grinds to a halt.

          1. “Then it’ll get into the private sector, and eventually, everything grinds to a halt.”

            There’s a relevant difference between the public and public servants.

            The chilling effect is *already* in the private sector, a flaw which needs to be remedied.

            In contrast, public servants need more chilling, not less.

          2. Except, carried out, your plan leaves us with cops who never leave the station during their shift. Wouldn’t want to get sued, y’know. Next, the firefighters won’t fight any fires any more (“wouldn’t want to trespass on somebody’d property. We better stay here.”) Then it’ll get into the private sector, and eventually, everything grinds to a halt.

            Uh, the private sector already doesn’t have qualified immunity, and never did.

            Doctors don’t refuse to treat patients because, “What if I get sued?” Auto mechanics don’t refuse to fix brakes because, “What if I get sued?” Why are cops such unique snowflakes that they would refuse to do their jobs because of the fear of being sued?

            1. “Uh, the private sector already doesn’t have qualified immunity, and never did.”

              Uh, the quoted passage doesn’t say anything about qualified immunity, and never did.

              “Doctors don’t refuse to treat patients because, ‘What if I get sued?'”

              Whoever told you this didn’t know what they were talking about. You should probably check up on anything else they told you.

              1. Uh, the quoted passage doesn’t say anything about qualified immunity, and never did.

                Uh, yes, it does. It’s all and only about QI. You’re not very good at understanding what you read.

                Whoever told you this didn’t know what they were talking about.

                Yeah, they did. But I’m sure you can provide evidence of doctors who refuse to treat any patients. (By which I mean you’re talking out of your ass. Again.)

                1. ” You’re not very good at understanding what you read.”

                  I WROTE it, dingus.

                  “Yeah, they did. But I’m sure you can provide evidence of doctors who refuse to treat any patients.”

                  Why would I respond to that instead of the original claim you made?

                  1. ” You’re not very good at understanding what you read.”

                    I WROTE it, dingus.

                    Nope. Eddy did. You just responded to him, and now apparently you’re admitting you didn’t understand what he said.

                    Why would I respond to that instead of the original claim you made?

                    That is the claim I made.

                    1. “Nope. Eddy did. You just responded to him, and now apparently you’re admitting you didn’t understand what he said.”

                      This is a new low, even for a guy DESPERATELY trying to prove he isn’t wrong.

                      You quoted from me (original 3.23.19 @ 7:59AM), your quote at 3.23.19 @ 8:39PM

                      So, you quoted me, proving then and there that you didn’t understand what I wrote about, then when called on it you claimed to know what the author meant to say better than the author (again, for you, because you’re slow, the author would be me) does. When called on that, the best you can do is claim that I’m not the author, despite the fact that it’s right there if you scroll up.

                      Buh-bye, now.

                    2. I know I’m making the mistake of feeding the troll, but I have SIWOTI syndrome, so I’ll try one last time:

                      Eddy said: Here is where a “chilling effect” can be a good thing – we should *want* the authorities to worry about doing warrantless searches/seizures (or seizures beyond what a warrant authorizes). Nothing like the fear of lawsuits to hopefully deter them from attempting dubious searches/seizures in the first place.

                      That, along with his prior comment that he was supplementing, was a reference to QI.

                      Then you responded to him, with the statement I quoted, that started out: “Except, carried out, your plan leaves us with cops who never leave the station during their shift…”

                      See, you said “your plan.” Since his “plan” was to end QI, and you referenced his plan, then you were also referring to QI.

                      See how good faith English communication works?

                    3. “That, along with his prior comment that he was supplementing, was a reference to QI.”

                      To a person who can read, it is a reference to NOT HAVING QI. To a person who can think, not having QI is the opposite of QI, and opposites are not the same thing.

                      “Then you responded to him, with the statement I quoted, that started out: ‘Except, carried out, your plan leaves us with cops who never leave the station during their shift…'”

                      Er, you said Eddy wrote it. Now I wrote it? Make up your mind.

                      “See how good faith English communication works?”

                      When you try to tell someone that they can’t understand what the author meant when they wrote something, and the person you’re telling this to is, in fact, the person who wrote it, “good faith” isn’t one of the adjectives I would choose to use.
                      But when your response to getting caught doing this is to deny (plainly visible) authorship, you go straight into the “mock this person mercilessly” category.

                      Here’s the deal. You misunderstood something you read, tried to lecture the author about what the quoted text meant, doubled down by claiming someone else wrote it, you’re still scrambling to find a way to interpret this sequence of events that doesn’t have you comedically and repeatedly wrong.

                    4. To a person who can read, it is a reference to NOT HAVING QI. To a person who can think, not having QI is the opposite of QI, and opposites are not the same thing.

                      Talking about not having X is still talking about X.

                      And again: you aren’t the person who wrote that. Eddy was.

                      I do apologize for accusing you of not understanding what he wrote; there is a significant possibility that you did understand and are just lying.

                    5. “Talking about not having X is still talking about X

                      To a person who can think, not having QI is the opposite of QI, and opposites are not the same thing. Whereas to you, they are the same thing.

                      “And again: you aren’t the person who wrote that. Eddy was.”

                      You quoted me, dingus. I’ve pointed this out to you several times, and you still insist otherwise.

                      “I do apologize for accusing you of not understanding what he wrote”

                      You accused me of not understanding what I wrote.

                      From this, I conclude that you are unable to admit your own multiple, repeated mistakes no matter how many times they are pointed out to you; Say hi to Tim Apple for me.

  8. “It isn’t clearly established that cops can’t steal things they’ve seized with a search warrant, so they get qualified immunity.”

    Seriously? Am Inreading this right?

    1. No, I don’t think you are. (Or at least you’re not understanding it right.)

      The opinion expressly says that (if the allegations are true) the conduct was illegal. Indeed, the opinion notes that the plaintiffs can obtain relief under California Tory law. The question is whether the alleged conduct would violate the fourth or fourteenth amendments, as the plaintiffs would need to show.

      If you think there’s a case that clearly established that, I’d be fascinated to read it.

      1. The opinion expressly says that (if the allegations are true) the conduct was illegal. I

        Which sort of definitionally means qualified immunity shouldn’t apply. As the Supreme Court has said, QI “protects all but the plainly incompetent or those who knowingly violate the law.” It’s hard to figure out why it should matter which law they knowingly violate.

        1. Same reason we have to prove that a defendant violated the law that the indictment charged him with in order to get a conviction. We don’t just say “well, he intentionally broke the law, it shouldn’t really matter which one it is!” The cops here are still criminally responsible and liable for stealing the money, they just have to be held responsible under the right law. That’s how law WORKS.

          1. You’re missing the point. QI isn’t law. It’s a judge-made exception to the law. The issue here isn’t whether the police are liable. The issue is whether the police have to face trial on whether they are liable.

            Remember that the court did not say, “It’s not a violation of the constitution to steal money.” It said, “We don’t even have to address that, because courts haven’t yet done so.”

  9. RE: Qualified immunity for stealing with a search warrant

    I had to read the entire decision for myself and, yes, that is really what the panel concludes. It gives the police qualified immunity because there is apparently little case law on if the police stealing with a search warrant rises to a constitutional violation. How is it just not simply elementary constitutional law that the 4th Amendment protects a citizen from police sponsored theft????

    But kudos to the defendant’s attorney for coming up which such a crackpot argument and for it working at both the district court and appellate levels. I never would have thought of even going that route if such a case ended up in my lap. But that guy not only ran with such a defense but won….TWICE! I would have thought any attorney who made such an argument would not only get laughed out of court but possibly even disbarred.

    1. ” How is it just not simply elementary constitutional law that the 4th Amendment protects a citizen from police sponsored theft????”

      Because seizing money (or anything else) with a properly-issued warrant is not theft. Duh.

    2. ” How is it just not simply elementary constitutional law that the 4th Amendment protects a citizen from police sponsored theft????”

      Because seizing money (or anything else) with a properly-issued warrant is not theft. Duh.

      1. If I understand this correctly; the cops seized the $50,000 legally by warrant. They failed to accurately list what was taken; omission of what was seized. Pocketed everything not listed. Their crime was a State crime against the City. Felony theft in this case and, conspiracy to commit a felony. The excess property not listed is not seized property. It is stolen money, and rare coins. They managed to violate their own Search Warrant by, their criminal actions.

        The warrant, signed by Fresno County Superior Court Judge Dale Ikeda, authorized theseiz[ure] [of] all monies, negotiable instruments, securities, or things of value furnished or intended to be furnished by any person in connection to illegal gambling or money laundering that may be found on the premises . . . [and] [m]onies and records of said monies derived from the sale and or control of said machines.

      2. Pullock needs learn how to read.

        The police seized an amount of cash that far exceeded the $50,000 in which they claimed to have taken (or allegedly took). if they did do that then it is outright theft regardless if the reason why they were taking cash was a warrant or just a plain old fashion strong armed robbery they had a duty to declare the exact amount of cash taken not just some of it and then, presumably, pocketing the rest.

        1. “Pullock needs learn how to read.”

          Yes, complain that I can’t read, while demonstrating that you can’t even read my name and retain it long enough to write it down. Genius move.

          “The police seized an amount of cash that far exceeded the $50,000 in which they claimed to have taken (or allegedly took). if they did do that then it is outright theft”

          Dimwit, try to follow along.

          1) Cops seize $270K+ from plaintiff, pursuant to a warrant.
          There is no theft from plaintiff here. (Nor conversion, which is the tort that applies.)

          2) Cops fraudulently fill out paperwork, stealing money that was properly seized and pocketing it.
          There is STILL no theft from plaintiff here. There IS theft from the state.

          ” they had a duty to declare the exact amount of cash taken not just some of it and then, presumably, pocketing the rest.”

          Duh. They owe that duty to their employer, the state.

          Taking money from plaintiff without a warrant would be a Constitutional violation… the Constitution says no seizures without a warrant. Seizing money (or anything else) WITH a properly-issued warrant is not a Constitutional violation.

          ” a plain old fashion strong armed robbery”

          A strong-arm robbery is a robbery where the robber is unarmed. Cops are armed, Mr. Genius-who-wants-to-criticize-my-reading-ability.

          1. 2) Cops fraudulently fill out paperwork, stealing money that was properly seized and pocketing it.
            There is STILL no theft from plaintiff here. There IS theft from the state.

            The problem is that you try to be pedantic, but you’re really bad at it because you don’t understand the legal issues. Seized property still belongs to the plaintiffs; it doesn’t belong to the state merely because it was seized pursuant to a warrant. The state has to initiate forfeiture proceedings to transfer ownership of the property. So, no, the alleged theft is from the plaintiff.

            1. The decision itself mentions that the theft is from the plaintiffs. He would know that if he read anything before spewing idiocy.

            2. “you don’t understand the legal issues.”

              The legal issue is that the plaintiffs don’t have a Constitutional claim, but their lawyer argued a Constitutional claim.

              Jimmy the Dunce put out:
              ” How is it just not simply elementary constitutional law that the 4th Amendment protects a citizen from police sponsored theft?”

              To which the answer is STILL
              Because seizing money (or anything else) with a properly-issued warrant is not theft. Duh.

          2. That is some classic Pullock here.

            Now you try to follow along (which is probably really really hard for you to do):

            1. Police get warrant
            2. Police seize $270K in cash
            3. Police say they only took $50K
            4. $270 – $50K = $220K undeclared that just “disappears”

            That is simply theft. It is still the plaintiff’s money until it is lawfully converted to state ownership through forfeiture of some kind.

            The problem is you were trying to be too clever by half. And you failed miserably.

            And, oh Mr. Smarty Pullock, it would still be constitutional if the money were seized without a warrant as long as the seizure fir into one of the warrant exceptions. (Although police will usually get a warrant after the fact just in case).

            1. “That is some classic Pullock here.”

              Someone’s in your head, bad. Why don’t you cry about it some more.

  10. “Out of nowhere, Phoenix, Ariz. prison inmate stabs cellmate 13 times. Inmate: Instead of an insanity defense, I want to present the defense of “demonic possession.” Appointed counsel: That’s not a thing, and I’m absolutely going to present an insanity defense. Ninth Circuit: Appointed counsel violated the inmate’s Sixth Amendment rights. The inmate repeatedly objected to the insanity defense, and the buck stops with him.”

    Here’s a Catch-22. He’s so crazy he doesn’t realize he’s crazy. He’d have to be saner in order to accept the decision to make an insanity defense.

    (Alternative explanation: He really is demon-possessed. But as I understand the theory of demon possession, it’s like voluntary intoxication – you *choose* to open yourself up to demonic influence.)

    1. To deny him that defense also steps on his religious rights.

      1. The problem here is that the defense counsel has to put on a competent defense, or get sanctioned, and has to carry out the wishes of his client, or get sanctioned. So if the client WANTS an incompetent defense, counsel is screwed. So counsel chose the one that made it clear HE knew what he was doing…

  11. I essentially started three weeks past and that i makes $385 benefit $135 to $a hundred and fifty consistently simply by working at the internet from domestic. http://xurl.es/ReadMore

    1. If you became a cop, you could steal a LOT more than that, with qualified immunity.

  12. The Connecticut Supreme Court decision is an obvious flouting of PLCAA. But not a surprise when Democrat appointed judges are involved.

  13. If the rifles were marketed for civilians to use in offensive, military-style combat missions (as the plaintiffs allege), such marketing violates state advertising law.

    Even so, the plaintiffs do not allege that Adam Lanza had actually purchased the firearm in question (contrary to what the police had found out.)

    1. Isn’t the ultimate justification for the 2nd Amendment that The People must retain their own guns so they can readily form a militia as needed?

      That is, for warring, and thus advertising guns as good for that is just what the doctor ordered?

    2. I looked how these guns are marketed for supposed “military-style combat missions” and couldn’t find a reliable source. Does anyone have a link to a gun company advertisement of this nature?

  14. Write it on your doorposts: The longstanding tax exemption for ministerial housing does not violate the Establishment Clause. Thus holds the Seventh Circuit, rejecting a challenge by the Freedom From Religion Foundation, a self-described “nonprophet nonprofit.”

    I also hang out with my fellow atheists on atheist web sites. I know the motivation of actions like this is to hurt religion, not concern about entanglement. That’s why they gleefully make many apllications for the limited display slots at city hall during the “holiday season”, so they can crowd out Baby Jesuses.

    1. I don’t mind an atheist. What I do mind is when they get all militant about being an atheist. You can go about not believing there is a God and organized religion is dumb. That is fine. But, you don’t have to walk around trying to impose your will on others and denigrating people who believe that there is a God.

      1. So, in your formulation, religious folks can evangelize their beliefs, but atheists can’t?

        1. Nice straw man.

          Atheists can evangelize all they want. Convince, persuade. Same thing other religious folks can do. I wouldn’t care if an atheist tried to persuade me that my beliefs are in error. Demanding the eradication of any evidence of [insert belief you think is silly or offensive here] is not the same thing as persuasion, however. It is simply a mean-spirited action intended only to make someone else more unhappy because you don’t agree with them.

          1. “Nice straw man.”

            So, you don’t know what a straw man is? Why don’t you come back when you do.

            “Demanding the eradication of any evidence of [insert belief you think is silly or offensive here]”

            Hint: This is one.

  15. From the 9th circuit op:

    “Appellants argue that the City Officers’ theft of their property violated their substantive due process rights under the Fourteenth Amendment.”

    Why not argue procedural due process? That seems like a slam dunk.

    1. “Why not argue procedural due process?”

      Because the procedural due process they’re due is:

      1) show them the warrant

      2) take the money away from them.

      They have a claim against the state… the money taken from them was not returned to them, and it was the state’s agents who took it from them. The state has a multitude of claims against the officers. But the plaintiffs don’t have a Constitutional claim against the officers.

    2. “Why not argue procedural due process?”

      Because the procedural due process they’re due is:

      1) show them the warrant

      2) take the money away from them.

      They have a claim against the state… the money taken from them was not returned to them, and it was the state’s agents who took it from them. The state has a multitude of claims against the officers. But the plaintiffs don’t have a Constitutional claim against the officers.

      1. As others have pointed out to you upthread, there’s more procedure due than that before cops can claim the property as their own. Indeed, stealing money is, by definition, not following due process.

        1. ” there’s more procedure due than that before cops can claim the property as their own”

          What procedure would that be? Would you mind citing to an authority other than “others upthread” for the notion that there is a procedure that cops should follow before taking property for their own, and what those procedural steps are?

      2. Pullock is wrong again about a constitutional issue (imagine that…)

        The courts have held, repeatedly, that you do not have a right to see a warrant. It is required under many statutes that a warrant be produced upon execution, but failure to actually show it is not a constitutional violation.

        Sometimes I wonder if Pullock and Cuckland are the same person…

    3. At trial they made claims for both procedural and substantive due process.
      The defendants argued that the procedural claim was precluded by Parratt v. Taylor, a 1981 Supreme Court ruling that barred ?1983 procedural due process claims when an adequate post-deprivation remedy was available. Plaintiffs did not appeal, in fact they didn’t even argue.

      1. Did they give up too early?

        At least as far as the rare coins are concerned, what kind of post-deprivation remedy would get them the coins back *from the government*?

        1. If it was a private party that held the goods, rather than a government, it would be a failed bailment, for which the remedy is money damages. Does substituting a government in for a private party change that?

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