Short Circuit: A Roundup of Recent Federal Court Decisions

Where is the treasure? Where are the assets? Where's the loot?

|The Volokh Conspiracy |

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

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  • The Public Records Act creates a number of requirements for preserving presidential records. Does the use by administration officials of apps that automatically delete messages once they have been read by the recipient violate the PRA? D.C. Circuit: Although "Richard Nixon could only have dreamed of the technology at issue in this case," the White House Counsel sent a memo to staff telling them not to use those apps, and that's good enough for us.
  • The DEA classifies marijuana as a drug with no accepted medical use, akin to LSD and ecstasy (among others). But many turn to it for medical reasons, as do plaintiffs (a group of children and adults suffering from life-threatening medical problems), who sue the DEA to challenge its classification. Second Circuit (over a dissent): Alas, we cannot hear the case until you first ask the DEA to review it. But because the DEA is notoriously slow in reviewing classifications (petitions average nine years each), we will retain jurisdiction of this case so we can ensure speedy review.
  • The ACLU seeks a series of documents about national security programs, but the feds decline to hand them over on the grounds that they include attorney-client and deliberative, pre-decisional communications. Fair enough, says the Second Circuit. While the gov't can be forced to disclose if they adopted the information in those documents as their policy, the guvvies didn't expressly do so here. So they can keep the docs to themselves.
  • Following the 1979 rape and murder of a mother of two, Forrest County, Miss. police arrest three suspects, threaten to kill them, and beat confessions out of them. After serving a collective 83 years in prison—during which they suffered numerous assaults by other prisoners—DNA exonerates them. One of the men died in prison, another shortly after release, and the third died after only three years as a free man. Fifth Circuit: With that background, let us explain why well established law requires these insurance companies to pay for the county's legal defense in the families' civil rights lawsuits.
  • Acting on a tip, DEA agents in wait for a black Toyota Camry, said to contain oodles of heroin. They spy the Camry and also notice a RAV4 that appears to be driving in tandem with it. So they pull over the RAV4 too. And find two kilograms of heroin. Jackpot! District court: There was no reasonable basis to stop the RAV4, so evidence of the heroin must be suppressed. Sixth Circuit: To the contrary, the DEA agents reasonably suspected that the two cars were working in concert, which was enough to justify stopping both of them.
  • "Where is the treasure? Where are the assets? Where's the loot?" Avast, ye readers, and attend the tale of Thomas Thompson, treasure hunter. After Thompson recovered gold coins from a sunken ship, he refused to pay his co-salvagers, absconded to Florida, and hid the coins (possibly in a trust in Belize). The district court locked him up for contempt. Can he get out now that he's been incarcerated for the last year and a half? Sixth Circuit: He stays in the brig!
  • Medically disoriented man is driving erratically at night. Police impound the car, but the man refuses treatment, so they drop him off at a Georgetown, Ky. restaurant to wait for a ride home. The man wanders away on a nearby road, where he is killed by a passing car. Sixth Circuit (over a dissent): Tragic facts but no legal remedy.
  • The Sixth Circuit rejects challenges to a suite of Kentucky campaign finance and ethics rules and, in so doing, teaches us all about "the infamous … Operation BOPTROT," which was a real thing involving actual grownups.
  • Undercover agent accepts a fully nude lap dance from a dancer at "Cheeks," a West Carrollton, Ohio strip club. With the agent's extraordinarily thorough investigation (see pages 5-6 of the gov't's brief) completed, the state revokes the club's liquor license, but gives it the option to pay a $25K fine instead. The club sues. Sixth Circuit: Most claims were correctly dismissed, but the district court erred in saying that the $25k fine is not subject to the Excessive Fines Clause. The Commission conceded that the fine is a penalty. So the district court must determine whether that penalty is an excessive one.
  • Man serves 19 years for Peoria, Ill. home invasion, sex assault. He's innocent. Can he sue the city and four officers for using coercive interrogation to elicit a false statement from an alleged accomplice and for suppressing impeachment evidence? The Seventh Circuit says no. The man failed to present evidence to show that the officers knowingly violated the law. "[A] vacated criminal conviction does not automatically establish an individual's constitutional rights were violated, or that police officers and prosecutors are necessarily liable under Section 1983."
  • If you file an ethics complaint against a public official in Montana, you're prohibited from disclosing the complaint until the Commission on Political Practices makes a decision on whether to pursue it. You can disclose the fact that you filed a complaint and all the facts in the complaint—just not the complaint itself. Ninth Circuit: Well, that sounds like the law accomplishes nothing, which is generally not a sufficient reason to ban speech.
  • After a 13-year-old reportedly danced at a Miami strip club, the city cracked down with new laws. The club then challenged the laws in a 16-count complaint. And according to the Eleventh Circuit, many of those counts are ripe for adjudication. Come for pleading "that might inspire a law-school professor writing a final exam," stay for the cutesy lede that has divided appellate Twitter.

Ouch. It's been a tough couple of weeks for food truck freedom. This week a Maryland appeals court reinstated Baltimore's ban on mobile vendors operating within 300 feet of stores selling similar food, which was passed at the request of the retail-business lobby. And last week, the Illinois Supreme Court rejected a challenge to Chicago's 200-foot ban and requirement that trucks install GPS tracking devices. Which is a darn shame, says IJ attorney Robert Frommer. These "rulings sharply break with decades of precedent that protects the right to earn an honest living. There is nothing reasonable about the government prohibiting you from operating near your competitors, or tracking you like a criminal out of fear you may sell delicious food to willing customers. By failing to stand up to the powerful on behalf of ordinary folks, these courts have done a profound disservice to the constitutional rights of everyone in their states."

NEXT: David French Is Right: Classical Liberalism Is the Best Framework for Protecting Religious Freedom

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  1. “Can he sue the city and four officers for using coercive interrogation to elicit a false statement from an alleged accomplice and for suppressing impeachment evidence? The Seventh Circuit says no. The man failed to present evidence to show that the officers knowingly violated the law. ”

    Seriously, the court wants people to believe that the police are unaware that it’s illegal to use coercion to obtain false statements, and to suppress evidence? Seriously?

    1. Amazing, isn’t it? Just amazing.

    2. Well, all the time that used to go into teaching cops the law now goes into teaching them intersectionality hierarchies.
      And the most effective way to pay union dues.

      1. Well, all the time that used to go into teaching cops the law now goes into teaching them intersectionality hierarchies.

        Yeah. This sort of thing never ever happened in the good old days.

    3. Get used to it – blind deference to police is pretty much an article of faith for Republican judicial appointees.

        1. You’re pointing to a case where 4 out of the 5 Republican appointees voted in favor of the police. Further proof that, as a general rule, Republican judges are extremely deferential to police.

      1. Yeah, like Illinois is a hotbed of Republican judicial nominees!

        Seriously, does it hurt being that ignorant Billy?
        Or just normal for a Progressive serf?

        1. The point being that R’s (one in particular) are picking federal judges right now. Yes, for Illinois districts, too.

        2. In the case we’re talking about, the three judges on the 7th Circuit panel were all Republican appointees.

      2. “blind deference to police is pretty much an article of faith for Republican judicial appointees”

        I disagree. “Blind deference to police” tends to run high throughout the entirety of the bench.

    4. If the city and the officers did not ‘knowingly’ violate the law:

      1) Ignorance of the law is not a valid defense for someone accused by the state. How can the state turn around and use it as a defense?

      2) Why is there no tort when law is violated out of negligence (i.e., failure to perform their job correctly)?

      The element of justice is missing from this decision.

      1. The element of justice is missing from our entire “Justice System”.

    5. Coersion covers a large territory. A witness (a young boy) was made to confess as a lookout and implicate his co-conspirators by threatening him (without an adult or lawyer present) with life in jail amongst other things. It wasnt the key evidence against the defendant (which was that an eyewitness identified him wrongly several times).

      It was sloppy police work, but probably standard at the time. The question the court had to decide on this point was, was was it malicious? The court said no, they did not fabricate evidence. It is permissable for the police to lie to defendents (coerce) to induce a true confession. If that confession later proves to be wrong, then that is the witnesses fault, not the police.

      1. “It is permissable for the police to lie to defendents (coerce) to induce a true confession.”

        The probability that a true confession will be obtained by such methods is ~0.000001%

        1. You have a source for that?

          I don’t like the practice, but the majority of the time the confession is still going to be true.

          1. That’s not the issue.

            The question is whether confessions obtained by coercion are more likely to be true than those that aren’t.

            1. No, that’s not the issue.

              The issue is whether the confession with other evidence is enough to establish guilt beyond a reasonable doubt. That is true regardless of how the confession is obtained. If the police lied to obtain it then it makes sense to say we would want more evidence outside the confession than for a completely voluntary confession, but that just goes to weight of evidence.

              If the post a responded to, however, was accurate a confession obtained by lying would for all intents and purposes prove innocence. At the least that itself, no matter how strong all the other evidence was, it would be enough to say the burden hasn’t been met. That is obviously BS

              1. It’s not possible to know the actual false confession rate, only a series of minimum rates.

                100 people confess.
                50 of them later claim it was a false confession.
                25 of those are believed, because the rest of the evidence otherwise makes no sense.

                But…. the other 50 who do not confess were told that their families would be killed horribly if they recant, and the 25 who weren’t believed was because there was no other evidence at all, they were simply picked off the street and charged with an offense that never occurred.

                Under this fact pattern, what would we say the “false confession” rate is? 25%, those whose recantation were believed? 50%, those who made a claim? 100%, those whose confessions were actually false?

                So when we see false confession statistics, we’re seeing a floor – the minimum number of false confessions, not the actual number of false confessions. While keeping in mind of course that because this is unknowable we can’t know that the actual rate isn’t right around the minimum rate either.

          2. Personal opinion. Absent other evidence sufficient to obtain a conviction without the confession, I see zero reason to believe/accept any confession obtained using even minimally coercive means.

            1. One of the things you can do once you have a confession is check to see if it’s true or not. By, say, taking details from the confession to see if they check out.
              Believe it or not, cops sometimes have problems with people who confess to things they didn’t do, so they have practice checking to see if confessions are true

        2. “The probability that a true confession will be obtained by such methods is ~0.000001%”

          You’re bad at math. The odds of gaining a true confession are quite good. The problem is that the odds of gaining a false confession are ALSO pretty good.

    6. ” the court wants people to believe that the police are unaware that it’s illegal to use coercion to obtain false statements”

      Be fair. The cops want to use techniques that are right up to the line, but not over it. They don’t get told they went over the line with THAT SPECIFIC TECHNIQUE until a court says so, and the cops’ training department has a chance to say “Nix. That’s out.” to everyone.

    7. Seriously, the court wants people to believe that the police are unaware that it’s illegal to use coercion to obtain false statements, and to suppress evidence? Seriously?

      No, not seriously. That’s not what the court said at all. In fact, it said the opposite: that just because a statement is coerced does not mean that it’s false. And it also found that no material evidence was suppressed.

      (Whether the court’s analysis is correct I leave for another day. I’m simply pointing out that you have misunderstood the holding of the court.)

      1. I don’t quite understand this issue.

        It seems to me that while a coerced confession is not necessarily false, neither does it have any value as evidence, and thus ought not be admitted at trial.

        Think of it this way:

        Some individuals will succumb to coercion and confess. Some won’t. Unless we can be sure that the guilty are more likely to succumb than the innocent the coerced confession is worthless.

        1. “It seems to me that while a coerced confession is not necessarily false, neither does it have any value as evidence, and thus ought not be admitted at trial. ”

          Depends on whether or not information gained in the confession is corroborated.
          If I get coerced into confessing that yeah, I shot the guy, and I ditched the gun in a specific place, and then the cops go to that place and find the gun, and it matches up to the gun that was used to shoot the guy… it’s probably a true confession.

          If I get coerced into confessing that yeah, I shot the guy, and it turns out the guy wasn’t shot, that’s probably not a true confession.

          So a key question is, did the cops work the case until they got somebody to confess to it, and then pass it off to the prosecutor, or did they work to check out the confession.

          Thing is, sometimes even NON-coerced confessions are false. Consider the case of the “Happy-Face Killer”, who turns out to NOT be the lady who confessed that she and her boyfriend did it.
          https://www.law.umich.edu/special/ exoneration/Pages/casedetail.aspx?caseid=3526
          Remove the space

  2. Looking at the governement brief in the Cheeks case I had to google what “pasties” were. Thank you Volokh for expanding my vocabulary

    1. You’ve led a much too sheltered life, I fear.

      1. Or not, if none of the women in that vicinity bothered with pasties.

  3. I’ve read about people released from incarceration for contempt because they’d proven so stubborn that the court could no longer find coercive value in keeping them locked up.
    Is that a standard thing? Does it apply to the jerk in the treasure case?

    1. The longest incarceration for contempt in the US is a fellow named Chadwick, who was held for 14 years. Basically, he’d hidden money overseas and was ordered to give 2.5m to his wife in their divorce but refused. He claimed he’d lost the money, but didn’t offer any evidence of how, or when, or doing what. Just basically kept saying, “Lost it, don’t have it.”

      Mildly interesting factoid – current Supreme Court Judge Alito heard one of his appeals, back in 2002 when he was a Circuit Court Judge.

      Chadwick was finally released when a judge decided that after 14 years, he’d been held so long that it was clear that incarceration was not going to compel him to hand over the money.

      As for the ‘jerk in the treasure case’, a quick perusal of the ruling seems to show that he’s still got a 2-year criminal-contempt sentence to do, which was suspended until he’d finished with the civil-contempt issue. I may have missed something, but it seems that if he was released from the civil-contempt, he’s still got time to do for his criminal activities.

      1. Thank you. That was a direct and complete answer.

  4. As sad as it is when mentally disturbed individuals die after they refuse help from the police, it really shouldn’t be a police officer’s job to decide that kind of thing or have the power to detail and transport someone because they’re acting erratically. That’s abuse waiting to happen and mentally disturbed people should still have the right to decline help.

    1. I suspect that most of the VC’s readership does not have a lot of sympathy for this man. (Well, for the claims that are based on his death.) I much prefer this sad outcome to where police take away the liberty interests of all people who (1) directly and unambiguously refuses help, and (2) are not so mentally impaired that their refusals should be ignored.

  5. Did those insurance policies not have an “intentional acts” exclusion? From the description, the police committed a number of crimes – and even if they weren’t convicted or even charged, that should be more than enough for a denial of coverage. Unless the policies back in the 1970s didn’t have that exclusion.

    And, nope, it appears they didn’t. If the court’s quote is right, the insurers specifically agreed to cover “wrongful act[s] committed while conducting law enforcement operations”.

  6. “Disorderly Conduct” for giving a topless lap dance? You must not lose faith in humanity for humanity is an ocean. If a few drops of the ocean are dirty, the ocean does not become dirty.

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