Short Circuit: A Roundup of Recent Federal Court Decisions

Prison brunch, gaslighting, and nonconsensual neonatal blood samples.

|The Volokh Conspiracy |

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

Last week, Texas put an end to one of the state's most bafflingly counterproductive policies: suspending residents' occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans' finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed. In 2017 alone, state agencies threatened the licenses of more than 4,200 professionals—including cosmetologists, nurses, and teachers—simply for unpaid student debt. Over at Forbes.com, IJ's Nick Sibilla has more.

  • In 2017, the feds adopt policy that essentially bans unaccompanied minors in immigration detention from obtaining abortions. D.C. Circuit: Can't do that. Dissent: The case is moot, and the class should not have been certified as is because, among other things, it almost certainly includes individuals who think abortion is murder.
  • Consignment business that sells kids' clothing relies on parents to help set up the sales. In exchange, they get first pick of the merchandise. Labor Department sends a letter informing business that the parent "volunteers," who work one or two days a year, are actually employees. So start paying them or else. D.C. Circuit: Indeed. The volunteers look enough like employees to us. Concurrence: Probably should've called 'em independent contractors.
  • According to legitimate locksmiths, "scam" locksmiths are tricking search engines into making the scammers appear more geographically available than they actually are. But that doesn't mean the legitimate locksmiths have a claim against the search engines, holds the D.C. Circuit. Congress has made clear that websites are free to publish all the information from third parties that they want.
  • Allegation: NYC building inspector has it out for Asians in the construction industry, so much so that he visits job sites and issues violations on his own time, while off duty. Second Circuit: Which may very well violate the Equal Protection Clause. It doesn't violate the Due Process Clause, though, because the official's harassment hasn't completely driven the plaintiff out of business.
  • Without warning or provocation, worker at Amazon shipping facility punches coworker in the face repeatedly. He tells Chesterfield County, Va. police that he "does not like homosexuals, so he punched" the victim. Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.
  • Allegation: Maryland corrections officer is falsely accused of sexually harassing female coworker. In the course of the investigation, the officer reveals that he is gay and HIV positive. The sexual harassment complaint is not sustained, but he's fired anyway. Sexual orientation discrimination? Fourth Circuit: The state hasn't waived sovereign immunity, so his state law claim can't go in federal court.
  • Uncounseled plaintiff sues the University of Texas for gaslighting him—that is, per dictionary.com, manipulating him by psychological means into questioning his own sanity. Skipping over whether gaslighting is indeed a tort, the Fifth Circuit affirms dismissal. The state hasn't waived sovereign immunity.
  • Timothy Ivory Carpenter—winner of last year's Supreme Court ruling on Fourth Amendment protections for cell phone location data—will remain in prison. So holds the Sixth Circuit, on remand from SCOTUS. Even though officers violated the Fourth Amendment with their warrantless search of Carpenter's cell phone location data, they acted in good faith. So Carpenter's conviction stands. (Memorious Court-watchers will recall that Justice Alito forecast this result in the closing moments of oral argument.)
  • Michigan Department of Health and Human Services allegedly collects blood samples from newborns without parents' consent, tests them, then transfers them to a nonprofit corporation, "where they are stored for future use by the state." Parents sue on behalf of themselves and their children. Sixth Circuit: Most of the claims are nonstarters, but Michigan's ongoing storage of the blood samples may violate the kids' Fourth Amendment rights and the parents' Fourteenth Amendment right to direct their offspring's medical care.
  • Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn't tell us apart. So we should get summary judgment because "she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc." Sixth Circuit: That is absolutely not how this works.
  • Illinois corrections officials institute a "brunch" program, a bougie euphemism for serving prisoners two meals a day instead of three. Prisoner sues, claiming that the program gave him too few calories. Which, says the Seventh Circuit, the undisputed record rebuts. The program's designer submitted an affidavit that the two-meal brunch menu supplied the same number of daily calories as the regular three-meal menu.
  • "If a federal law-enforcement officer lies, manipulates witnesses, and falsifies evidence, should the officer be liable for damages?" Despite the lede, the Eighth Circuit immediately answers "no." Specifically, a St. Paul, Minn. police officer who allegedly fabricated a sex trafficking conspiracy cannot be liable under Bivens. (No qualified immunity for the officer, though.)
  • If a police officer questioned you and then left to investigate a building, you might think you were free to drive away. If that police officer then followed you on the highway for 19 miles, you might turn on your hazards and pull over. And if you feared for your life because you're black and the officer knows you have a concealed weapons permit, you might put your hands outside the driver's side window. Eighth Circuit: While that behavior is entirely consistent with wanting to avoid being shot, it's also "unusual and may be indicative of guilty conduct." Qualified immunity for the officer, who ordered plaintiff out of his car at gunpoint. Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.
  • Acting on an anonymous tip, ICE agents obtain a warrant for employment-related documents at a California factory. In the course of executing this warrant, 100 armed agents descend on the factory, block all exits, prohibit workers from using their phones, and ultimately arrest 130 undocumented workers (which, in fact, was their plan all along). A Fourth Amendment violation? Ninth Circuit: You can't use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.
  • Absent-minded bank robber inadvertently places closed pocketknife on bank counter while providing teller with money bag. (The record is silent on whether the bag sported a dollar sign.) Gov't: That's "armed bank robbery"! Ninth Circuit: Hardly. Armed bank robbery requires "active employment" of a weapon, and there was no active employment here. The district court thus plainly erred in accepting the robber's guilty plea.
  • Saudi citizen sentenced by Colorado court to eight years to life (for imprisoning, sexually assaulting teenage housekeeper from Indonesia) seeks to serve the remainder of his sentence in Saudi Arabia. Colorado officials deny the request. Tenth Circuit: There is no constitutional right to a hearing before officials make such a decision.

Forfeiture doesn't help police fight crime, but police do use forfeiture to raise revenue—so finds a new IJ study. These findings may not surprise you, dear reader, but proponents frequently tout forfeiture as a key crime-fighting tool while denying critics' charge that forfeiture is used to police for profit. That's why IJ teamed up with Seattle University's Dr. Brian D. Kelly to test these opposing views of forfeiture. The resulting study, titled Fighting Crime or Raising Revenue?, combines local crime, drug use, and economic data with more than a decade's worth of data from the nation's largest forfeiture program. It finds that more forfeiture proceeds do not help police solve more crimes or reduce drug use, but police do ramp up forfeiture activity when local economies suffer. Read the report.

NEXT: City on a Hill Is Boston's Answer to The Wire

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.

  1. [m]emorious

    Thanks, that was a new one for me.

  2. Brunch at the Pinckneyville Correctional Center: you’ll come for the mimosas, but you’ll stay for the S.O.S.

  3. “The purpose of a system is what it does”.
    Including trapping people in poverty by preventing them from earning money.

  4. While I agree with the IJ taking on the counterproductive policy of taking away licences for unpaid student loan debt, I really think the write up in this blog post of it being done “simply for unpaid student debt” is very disingenuous. Absconding on your debts is a serious matter, and human capital, the kind you earn from student loan debt, is in your head. It can’t be seized like a car or a house if one doesn’t pay the tab.

    1. But you can garnish wages. There’s no point in destroying the capital.

      1. Repossess his brain, he can still serve in Congress.

        1. …or coach the (insert name of unpopular sports team here).

          1. Or write comments on the Internet.

            1. Stop talking about yourself like that.

              1. Sounds like the shoe fit, and you don’t wanna wear it?

                1. Sounds like you need more joy in your life. Here, open wide and experience the joy:

                  https://www.youtube.com/watch?v=YYOKMUTTDdA

                  1. Sounds like yours is the joyless life, friend.

                    1. Paraphrased Pollock: “Nuh-uh, *you’re* a humorless dolt!”

                    2. I guess if that’s all you got, that’s all you got.

                      You’re still the one who got all pissy about a joke. Maybe we justlet THAT fact decide who’s the humorless dolt, and walk away.

                    3. “You’re still the one who got all pissy about a joke.”

                      Glass houses.

                    4. No need to continue being a humorless dolt. I already picked up on that.

                    5. How many James Pollocks does it take to change a light bulb?

                      “That’s not funny!”

                      (Plus your condescending explanation of how a light bulb doesn’t need to be changed because it doesn’t even need diapers)

                    6. OK, I guess you don’t have any settings other than humorless dolt.

                  2. Anyway, what’s “pissy” about the link I posted?

                    Everyone around, love them, love them
                    Put it in your hands, take it, take it
                    There’s no time to cry, happy, happy
                    Put it in your heart where tomorrow shines
                    Gold and silver shine
                    Shiny happy people holding hands
                    Shiny happy people holding hands
                    Shiny happy people laughing

    2. human capital, the kind you earn from student loan debt, is in your head. It can’t be seized like a car or a house if one doesn’t pay the tab.

      No, but your car or a house can be.

      1. If one HAS a car or a house to seize.

        1. Blood. Turnip/stone.

  5. Can anyone enlighten me – if federal law doesn’t allow a Bivins suit for some federal official’s misconduct, then can state law fill the resulting gap? Or is the misbehaving official immune from both state-law and federal-law suits?

    1. I haven’t read the case yet, but here is my general understanding.
      1. Bivens is for federal law enforcement (so on the summary I don’t even know why it was brought up).
      2. Section 1983 is for state law enforcement
      3. The Court only allows a Bivens claim if there is no adequate state remedy; if there is then they must go to state court (It also hasn’t been recognized for all constitutional violations)
      4. Qualified immunity is generally available in both types of actions
      5. A state can waive the immunity of it’s officers
      6. I don’t believe qualified immunity applies to state law (that is that SCOTUS doesn’t decide that and there is no constitutional requirement. A state, I presume, can create a qualified immunity defense to its laws if it wishes)

      1. OK, so my more specific question is – are state-law suits against federal officials *always* precluded based on federal supremacy?

        Or could state law step in if there’s no federal cause of action?

        1. Just to be clear, I’m not trying to sue any federal agents, I’m just interested in federalism.

  6. “Allegation: Drunk driver is taken to Oakland County, Mich. jail, where male guards subject her to a vicious strip search. Guards: But the hood we put on her to stop her from spitting meant she couldn’t tell us apart. So we should get summary judgment because “she cannot prove . . . who was the one to twist her arm behind her back, rip her pants off, touch her genitals, etc.” Sixth Circuit: That is absolutely not how this works.”

    1. I’ve been active in prison reform work and have researched more than one or two procedure manuals.
      For one thing, strip searches are strictly no-touch. Cavity searches have to be authorized at a high level and conducted only by medical personnel.
      For another, cross-gender searches are forbidden except for “exigent circumstances”. It’s hard to imagine what that would consist of, in an environment where there is zero cost to making an inmate wait.

      1. Yeah, it’s well-established that groping the prisoners is bad form. But can you prove that all of them did it? If you can prove that one of them did it, can you prove which one it was? Or is this one of those crimes that everybody present is guilty of, whether they had a hand in the commission of the crime or not?

        I think it has to be some variation of that last one… just like the lookout and the getaway driver are guilty of bank robbery, even if they didn’t carry a gun into the bank.

  7. “Last week, Texas put an end to one of the state’s most bafflingly counterproductive policies: suspending residents’ occupational licenses if they defaulted on their student loans. Not only did these suspensions wreak havoc on Texans’ finances and livelihoods, but they also made it fiendishly difficult for people to actually repay what they owed.”

    Making people believe that they will lose occupational licenses provides some motivation to repay, for those that could be paying, and does nothing at all for people who cannot pay, because motivation isn’t a factor if people cannot rather than will not pay up.
    So actually pulling occupational licenses isn’t bafflingly counterproductive. It’s working on the people who can pay, but refuse to do so even as it isn’t working on the people who can’t pay.

    1. I think a lot of us on this site would argue that, on balance, the harms from this policy greatly outweigh the benefits. But you are making a real point, and you’re right…it definitely does work some of the time. I really had not thought about that before, so thanks for posting.

      1. I am not arguing that the approach isn’t counterproductive. I think it probably is. But it sure as hell isn’t baffling to anyone of at least normal intelligence.

        1. Yeah, it’s kind of like saying it’s counterproductive to throw somebody in prison and also demand they pay restitution to a victim. True, yeah, but deterrence (both general AND specific) is a real thing that can’t just be hand-waved away.

  8. a bougie euphemism

    This is “How do you do, fellow kids” stuff. Do not ever say that again.

    worker at Amazon shipping facility punches coworker in the face repeatedly… Fourth Circuit (over a dissent): Interstate commerce is implicated, so the feds can prosecute him.

    This is an excellent example of overreach of the Commerce Clause. The justification given by the court is that because the action between two private individuals that involved no interstate anything took place at a facility where interstate commerce took place, it impacted interstate commerce, and thus the Federal Government can get involved – even though the Court itself admitted expert testimony that there was no impact to the performance of the facility that day. The Court also admits no other court has concluded that an assault like this at a workplace is interstate commerce before, but blows off all of that in their conclusion.

    The entire ruling reads like the judges simply wanted to say “Virginia couldn’t prosecute him for a Hate Crime, so we found someone that could, law be damned”.

    1. Toranth,
      Yup. I just don’t get the logic of this. Does shoplifting a candy bar from a highway-adjacent gas station implicate interstate commerce? Heck, does shoplifting a tyre from your local Pep Boys implicate interstate commerce? (After all, it’s certainly reasonable to assume that this tyre will, at some point, move from state to state.) The exception is really swallowing the rule here.

      1. The answer to both of your examples is pretty clearly yes under current doctrine. See, e.g., US v. Baker, 517 F.3d 899 (6th Cir. 2008) (robbery of pizza restaurant affected interstate commerce because three ingredients were manufactured in other states).

        1. The first casualty of actually scaling back commerce-clause authority is the Controlled Substances Act, which limits the drug trade in substances that have no lawful commerce in any of the states because interstate commerce.

          1. Bonus!

            1. YOU may like this, but it scares the hell out of mainline politicians.

  9. There should be a constitutional amendment that every time a judge uses interstate commerce for a crime that is only secondarily or less connected to interstate commerce (Rube Golberg-style) they have to humanely sacrifice a finger or toe.

    Make sure they truly believe it.

    Also, can this asterisking web site please turn off the fumble finger “go to next story because you touched two different fingers to the screen simultaneously” feature? When 99.9% of the time that’s what the user didn’t want to do, there’s a design flaw.

    1. Just one of many annoying things. Except for the slightly nicer formatting of the main page and indenting comments, pretty much everything related to the new web design is worse than the old one. Yet whoever is in charge of it seems impervious to the universal “your new website sucks” from users.

  10. “Concurrence: Sounds like a Fourth Amendment violation but not a clearly established one. So, yeah, qualified immunity.”

    Sigh. Sometimes I think our entire judicial system is broken.

    Today, 146 years after the Slaughterhouse Cases, the courts still have not finished incorporation of privilieges and immunities into the 14th amendment.

    Now with the need for courts to “clearly establish” each and every form of outrageous official conduct before it is removed from qualified immunity protection, we face a few more centuries of waiting.

    IMO, our judicial system is more than 100x too slow to protect rights to my satisfaction. Congress is no better; it prefers to leave all the tough stuff for courts to handle. The executive just loves overreaching. Our principle of separation of powers to protect us from abuse, has been turned into a system where no branch has accountability. But if I express sympathy for overthrow of our government so that we can start over from scratch, it is I who am the crazy person.

    1. The reason QI litigation is such a morass is because it’s an attempt to pin liability on an individual, and our default position is that individuals can do anything unless it’s clearly established that they can’t. It’s the same default rule we like (for individuals who don’t work for the government), because it provides the best freedom.

      1. Show some examples where any non-government entity gets a free pass because a court hasn’t clearly established that objectively heinous behavior is wrong. There are many QI examples of that. If you search, you’ll even find examples where the LEOs get a free pass for some bad behavior while any non-governmental people involved see legal liability (start by looking for cops dragging people to hospitals for invasive drug searches).

        1. If you’re unaware of any cases where a non-government entity got a free pass because what they did isn’t clearly covered by the statute that the prosecutors tried to apply, it’s because you never looked. Try googling “got off on a technicality”.

          How about the case where a defendant was cleared of taking indecent photographs of a minor because the court interpreted the case to only apply in places that were private, and the guy did it in the aisles of a store. Cleared because although he rather clearly exceeded societal bounds by putting his camera up her dress, he “only” got photos of her panties, and the statute didn’t apply to people with clothing on.

  11. Ninth Circuit: You can’t use a search warrant for documents as a pretense to detain, interrogate, and arrest literal busloads of people.

    This is simply a misstatement of federal law. The current state of the law absolutely allows this sort of “pretense.” The only reason the 9th decided against this was because it involved illegal immigration.

    Suppose instead of illegal immigration this was a seizure of illegal (or given the circuit’s politics, legal) weapons manufacture. I doubt the 9th would so casually dismiss this case.

  12. […] Short Circuit: A Roundup of Recent Federal Court Decisions Prison brunch, gaslighting, and nonconsensual neonatal blood samples. […]

  13. “The reason QI litigation is such a morass is because it’s an attempt to pin liability on an individual, and our default position is that individuals can do anything unless it’s clearly established that they can’t. It’s the same default rule we like (for individuals who don’t work for the government), because it provides the best freedom.”

    For example, there was a recent post here on Volokh a week or two ago saying that it had not yet been clearly established that police can not steal money from citizens. It has the effect that we take the entire body of criminal laws and say that each one doesn’t apply to government unless it is clearly established. Rape? Pillage? Burn? Sorry but those have not been clearly established that government employees may not do that.

    The default should be that all laws apply to government employees except for enumerated exceptions. But as this blog post and others point out, when it comes to QI, that has been inverted. The default is that no criminal laws apply to government employees until each law is individually determined by a court to be “clearly established.”

    1. You’ve misunderstood that case – although to be fair, it seems extremely likely that Mr. Ross wrote the summary in a way that was deliberately designed to engender this misunderstanding.

      The court did not hold that it was unclear that the officers’ alleged conduct was illegal: indeed, they held that it almost certainly could be redressed by California state law. And to the extent that the California authorities believed the officers had stolen the money, there’s no question that they could be prosecuted for theft – as, of course, would be the case for the other crimes you mention.

      The issue in the case was not whether the conduct alleged was illegal, but whether it was clearly established that it violated the US constitution.

      5

  14. The 4th Amendment, by its terms, addresses a right of the people. Non-members of the people have no more interest in whether a search or seizure was done properly than a fetus does in whether a doctor committed malpractice in performing an abortion. It’s simply none of their business.

Please to post comments

Comments are closed.