Short Circuit: A Roundup of Recent Federal Court Decisions

Halfway originalism, frustrated immigration enforcement, and sit down or be put down.

|The Volokh Conspiracy |

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

Last month, federal auditors revealed the DEA had secretly spied on Americans who bought money counters. With a reach so expansive it alarmed even the FBI, this sweeping surveillance program helped the DEA seize over $50 million in cash and real estate. Yet auditors found "the vast majority" of those under surveillance "were never shown to be connected to illicit drug-related activities." Over at Forbes.com, IJ's Nick Sibilla has more.

  • While presiding over the Department of Justice's military prosecution of the alleged mastermind of the U.S.S. Cole bombing, this Air Force Colonel was simultaneously gunning for a job as an immigration judge with . . . the Department of Justice. An improper appearance of bias? D.C. Circuit: Indubitably. All 460 of his written orders in the case are vacated. Be more careful next time.
  • Eight voting citizens of Greensboro, N.C. successfully challenged a 2015 law that redrew their City Council district and got an injunction prohibiting the County Board from enforcing the law. Can they recover their attorney's fees from the Board? District Court: The Board didn't write the law, it declined to defend the law, and it stipulated to a bunch of facts to streamline the litigation; special circumstances justify denial of fees. Fourth Circuit (over a dissent): Fee awards are about compensating the attorneys, not punishing bad actors. Pay up.
  • Hattiesburg, Miss. doctor might be overprescribing opioids. So the medical board gets an administrative warrant and allegedly sends nine agents to his office to search through medical records. They allegedly detain him for hours, often at gunpoint. One delivers the charming line "[i]f you don't sit down I will put you down." Fifth Circuit: That's unreasonable for an administrative search. And now that we've settled that—qualified immunity!
  • Abilene, Tex. prison guards seek to extract from his cell a prisoner who prefers to stay. Guards contend they used the minimum force necessary, which involved spraying a chemical into the cell and restraining the prisoner's arms and legs. The prisoner contends it was much worse—after guards handcuffed him on the floor, they punched him, squeezed and twisted his genitals, and stuck a finger in his anus. Video fails to allay confusion. Fifth Circuit: Could be excessive force. Need a trial to figure that out.
  • El Paso, Tex. police respond to 911 call at dusk, discover unarmed man in the process of hanging himself from basketball hoop. Police demand he show his hands. When he fails to comply, they tase him, and he immediately goes limp. They remove him from the hoop and begin CPR, but he dies at the hospital. District court: No qualified immunity. Fifth Circuit: If the officer wanted us to address the question of whether he had qualified immunity, he should have briefed it. He didn't (he addressed other issues in his brief instead), so the case can go on.
  • Hunt County, Tex. sheriff's dept.: Welcome to our Facebook page; please say only nice things about us or we will ban you. Fifth Circuit: Well, that's called viewpoint discrimination, and it's generally frowned upon.
  • In June 2016, Omar Mateen pledged his allegiance to ISIS, entered the Pulse Night Club in Orlando, Fla. and opened fire, killing 49 people and injuring another 53. Can the victims and their family members bring suit under the Anti-Terrorism Act against Twitter, Facebook, and Google for providing the platforms through which Mateen became self-radicalized? Sixth Circuit: "We sympathize with Plaintiffs—they suffered through one of the worst terrorist attacks in American history. 'But not everything is redressable in a court.'"
  • It's nearly impossible for out-of-staters to get a concealed-carry permit in Illinois. Only residents of Arkansas, Mississippi, Texas, and Virginia can do it because those are the only states that do the kind of criminal and mental health reporting that Illinois is comfortable with. Is that constitutional? Seventh Circuit (2016, over a dissent): Yup. Gun rights are limited. Seventh Circuit (just now, in the same case, over the same dissent): Still true.
  • Immigrant from Iraq is detained for a year and a half while an immigration judge decides whether to send him back to the Middle East. The man sues to get out of custody. District judge: He's locked up under a statute that operates only for the time reasonably necessary to get a decision. A year and a half is too long. Let him out. Eighth Circuit: Those words are not in the statute. But the district court should address the man's constitutional claims. [Ed. note: If there's time. Because—well—there's a preliminary order to send him back to Iraq.]
  • A trio of California laws meant to protect immigrants from the feds go into effect, says the Ninth Circuit. No preliminary injunction to stop law that requires employers to notify employees before federal immigration inspections. No preliminary injunction (for the most part) for state-imposed inspection requirements on facilities that house certain federal detainees. And no preliminary injunction for law that limits state and local law enforcement from cooperating with the feds, even though it "may well frustrate the federal government's immigration enforcement efforts."
  • Jury rules for defendants. Judge 1 throws out verdict, grants judgment as a matter of law for the plaintiff. Defendants move to change the verdict back. Judge 1 says no. Defendants move to change the verdict back again. Judge 1 retires, and Judge 2 goes back to ruling for the defendants. Tenth Circuit: We're going with Judge 1 on this. Plaintiff wins.
  • Opa-Locka, Fla. 911 caller reports man trying to get through window of a neighbor's house. Officers respond, see man matching the caller's description, point guns at him, handcuff him, pat him down, reach into his pocket, and find a single bullet. Eleventh Circuit (2018): The police were allowed to pat the man down to find a weapon, but they crossed the constitutional line when they reached into his pocket to get the bullet. Eleventh Circuit (en banc, by a 7–5 vote): No, no. His conviction for being a felon in possession of ammunition (and pistols discovered nearby) is affirmed. Judge Jordan, dissenting: The majority fails to adequately grapple with the man's originalist arguments. (More on that from Josh Blackman.)

Friends, this week IJ's Center for Judicial Engagement released Episode 5 of the Bound By Oath podcast, which dives tolerably deeply into the history and meaning of the Fourteenth Amendment. This episode: the Equal Protection Clause, featuring African-style hair braiders, Georgetown law prof and IJ alum Evan Bernick, and also space aliens in invisible and undetectable craft. Available on iTunes, Spotify, Stitcher, SoundCloud, Google Podcasts, Google Play, TuneIn, and other fine podcasting apps.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

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

  1. “…Jury rules for defendants. Judge 1 throws out verdict, grants judgment as a matter of law for the plaintiff. Defendants move to change the verdict back. Judge 1 says no. Defendants move to change the verdict back again. Judge 1 retires, and Judge 2 goes back to ruling for the defendants. Tenth Circuit: We’re going with Judge 1 on this. Plaintiff wins….”

    I followed the link, to read the entire decision. I was disappointed that there is absolutely nothing in the opinion about the underlying facts of the original case.

    I almost never hear of cases where a judge overturns a jury verdict for defendant(s) and grants judgment for a plaintiff. I mean, I see it on courtroom dramas on TV all the time. But in real life??? No. Most of the JNOVs I have seen went the other way–jury verdict for the plaintiff, overturned by the judge.

    I am curious to know what the facts were in this case. Must have been pretty egregious.

    1. “Nelson’s buddy called police twice — the first time with no response, but with an immediate reaction from the second call, when he told them Nelson had threatened him with a knife and pellet gun. Forty-seven officers, plus dogs and an armored vehicle, showed up at the home.”

      Must have been a slow day at the precinct.

      “Hawk said use of five beanbag rounds on Nelson, then 60, unarmed and addled from hours of drinking beer with his buddy, was excessive.”

      I wonder if they’re still drinking buddies.

      https://www.abqjournal.com/117133/apd-damages-set-if-appeal-fails.html

    2. You can read the district court opinion Here – it lays out the facts and procedural history in (exhaustive) detail:

      https://casetext.com/case/nelson-v-city-of-albuquerque-6

  2. Last month, federal auditors revealed the DEA had secretly spied on Americans who bought money counters.

    haha.

    Bad luck.

    “GO TO JAIL: Go directly to Jail. Do not pass Go. Do not collect $200.”

  3. Ramirez v. Escajeda is some pretty bad lawyering if they procedurally default on the only issue raised on appeal. That being said, because it’s a jurisdictional dismissal, the court says that lack of Qualified Immunity isn’t the law of the case and it can still be raised at a later date, which cuts the officer a huge break.

  4. “Jury rules for defendants. Judge 1 throws out verdict, grants judgment as a matter of law for the plaintiff.”

    OK, I’m a bit puzzled here. I know the 7th amendment hasn’t been incorporated yet, but this was a federal appeals court. Shouldn’t the judge have been bound by it anyway?

    1. My understanding is that Federal Judges can still grant a judgment NOV overruling the jury verdict, but only for a limited set of reasons – like no evidence supporting the jury verdict or a verdict directly directly contrary to law. Generally, these motions are governed by FRCP 50.

      1. So, basically they usual, “Judges not seeing any problem with judges violating the Constitution.” thing we see in other areas? You get that right to a jury trial, (Unless conditions not mentioned in the Constitution kick in.) but in civil cases the judge is free to throw out the jury verdict and convict the defendant anyway?

        1. “civil cases the judge is free to throw out the jury verdict and convict the defendant anyway?”

          Civil trials don’t end with convictions, just prevailing parties.

          1. Yeah, still stinks on ice having a jury trial where what the jury rules doesn’t matter. “You get a jury trial, but the judge can ignore the jury’s decision” is NOT what the right to trial by jury means, it makes a joke of it.

            1. These are just reasonable, common sense restrictions on the right.

              The right to a jury trial is not absolute.

              1. In a criminal trial you’d never see a judge getting to convict a guy after a jury had acquitted; How are civil trials any different?

                1. “How are civil trials any different?”

                  Well, for one thing, loss of liberty isn’t at issue. Then you get to the details, like the standard of proof being different. Not having “the people” as a party turns out to make a LOT of things different.

      2. “My understanding is that Federal Judges can still grant a judgment NOV overruling the jury verdict, but only for a limited set of reasons – like no evidence supporting the jury verdict or a verdict directly directly contrary to law.”

        It’s a bit difficult to see how you could ever have a judgement on either basis specified that would favor the plaintiff.

        1. “It’s a bit difficult to see how you could ever have a judgement on either basis specified that would favor the plaintiff.”

          Not really. For example, if the defense is pro se…

          1. “Not really. For example, if the defense is pro se…”

            That shouldn’t make the smallest bit of a difference. The plaintiff is the one with the burden of proof. The plaintiff should never under any circumstance be entitled to either judgement not withstanding the verdict or judgment as a matter of law.

            1. “That shouldn’t make the smallest bit of a difference.”

              You’re unfamiliar with the legal acumen of pro se defendants? Look up some of the “legal defenses” presented by so-called “sovereign citizens”, for some amusements.

              You’re right that a competent defense should make JNOV or JMOL moot. But not all defendants offer one.

              1. “You’re unfamiliar with the legal acumen of pro se defendants?”
                No, I’m not totally unfamiliar with that.

                Even no defense at all or the most incompetent defense ever should still leave JNOV and JMOL absolutely unavailable to a plaintiff.

                1. “Even no defense at all or the most incompetent defense ever should still leave JNOV and JMOL absolutely unavailable to a plaintiff.”

                  You keep making this claim, and you also keep declining to offer any argument in support of it. Am I just supposed to change my mind based on your persistence alone?

                  1. “You keep making this claim, and you also keep declining to offer any argument in support of it.”

                    You haven’t offered any argument in support of your position that incompetent defense can warrant JNOV or JMOL in favor of Plaintiff either.

                    “Am I just supposed to change my mind based on your persistence alone?”

                    Turn that around, why should I change my mind?

                    1. “You haven’t offered any argument in support of your position that incompetent defense can warrant JNOV or JMOL in favor of Plaintiff either.”

                      Other than examples, you mean?

                      Since the real-world examples of sovereign citizens seemed unrealistic to you, here’s a hypothetical worst-case.

                      Plaintiff: I should win. Here’s what the defendant did, and why I should recover damages.
                      Defense: I should win. You can’t sue me, even though I did what you said I did, because we have (privilege that isn’t legally recognized).

        2. Well here it makes sense. Albuquerque SWAT team (without warning) fires non-lethal rounds, throws flash-bang, and sets a dog on a drunk and unarmed 60 year old man, then tases him repeatedly because he’s not following a command to let go of a fence, probably because they intentionally disoriented him, a dog is attached to his arm, and had probably already been tased by another officer.

          The jury found this to not be excessive force.

  5. A week in, I really, really don’t like this new format by Reason. It;s hard to read, and it scrolls badly. I sure hope it’s intended as a step toward good presentation on handheld devices and that there will soon be a different rendering for desktop browsers. But this format is bad.

    1. Since there’s no “like” button (and wasn’t before), I’ll weigh in to agree with you.

      Also, the lack of a ‘preview’ makes it risky to use HTML tags because a minor brain miss can leave a tag open or close the wrong tag resulting in an ugly comment.

      1. Oh, of course, there isn’t an edit button to correct it if you notice you screwed up just after posting so that option that some ‘no preview’ sites offer isn’t there to compensate.

    2. I hate it on mobile and would love to go back

  6. Very puzzled.

    “The police were allowed to pat the man down to find a weapon, but they crossed the constitutional line when they reached into his pocket to get the bullet”

    Wasn’t that a constitutional post-arrest search? Or was it not an arrest but instead a Terry stop? Is matching a description probable cause or reasonable suspicion?

    1. I didn’t get that either.

    2. I guess the theory is he could have shot them with a gun, but a bullet by itself is just evidence?

      1. I’ve seen some pretty flat switchblade knives and ‘zip’ knives. If someone was wearing a super-thin (think: yoga pants) pants material and it was quite light, one could see that no knife (etc) was in the pants’ pocket. But with heavier material like jeans or denim, and/or where the light was dim or dark? . . . I would think that sort of search would be very reasonable from an officer-safety standpoint. Obviously, this analysis should always be very fact-specific.

    3. “Wasn’t that a constitutional post-arrest search?”

      There are two justifications for why a search incident to arrest doesn’t require a warrant. One is the fear that the suspect might have a weapon and use it to attempt to escape; the other is that a catalog of what was seized with the suspect should be taken to ensure that the suspect’s valuables not disappear during the booking process (in other words, to protect the suspect’s property interests).
      Neither of these includes “we need to gather evidence against the defendant”, so a search incident to arrest doesn’t authorize a search for that purpose. It allows the officer to search for weapons, and it allows the officer to search for valuables to inventory.
      Most law-enforcement agencies will attempt to obtain permission for a consent search, which does not have the limitations of a search-incident-to-arrest.

      The workaround, of course, is that in searching for valuables to inventory, the officer may come across evidence of a crime. One line of interesting cases on the subject are the ones where the suspect was arrested near a car, and the cops searched the car.

      1. James, my understanding is that what you are describing is now the search of a *vehicle* incident to an arrest rule after Arizona v. Gant, not the search of a person. I don’t believe “have to be looking for evidence of the crime of arrest or reasonably fear for safety” applies to searches of a person incident to an arrest.

      2. And anyway, it’s all academic, as – after reading a bit of the opinion – this was a Terry stop, not an arrest.

        1. Thank you all!

      3. That is incorrect. A search incident to arrest can include a search of the person for both weapons and evidence of the crime of arrest.

  7. Regarding the Greensboro voting case, so basically, it doesn’t matter whether you switch to at-large or from at-large, if your action makes it harder for blacks to win, but not harder for whites to win, it’s unconstitutional. LOL.

  8. Regarding the Hattisburg and Abilene cases, do cops become evil sadists or do evil sadists become cops?

    1. Why not both? It’s a job that is well suited for undermining a sense of ethics, and it’s a job with great appeal for someone who’s already broken. One common element in the biographies of serial killers is having applied for law enforcement jobs.

      I have deep respect for anyone who can hold on to principles while spending all day dealing with criminals.

  9. Regarding the 2nd Amendment case, Scudder is a Trump appointee. Good job! Why is it that every Democrat judge votes liberal, but not every Republican judge votes conservative?

    Also, asshats, when Scalia said “the right is not limited,” he didn’t mean “any limit is constitutional.”

  10. No preliminary injunction to stop law that requires employers to notify employees before federal immigration inspections.

    I wonder what happens when these employers are prosecuted by the DoJ for obstruction of justice.

  11. > pat him down, reach into his pocket, and find a single bullet.

    That sounds awfully convenient. I wonder if that bullet is of the same brand the police typically carry?

Please to post comments