Short Circuit: A Roundup of Recent Federal Court Decisions

Cookies and crème.

|The Volokh Conspiracy |

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

Civil forfeiture should be abolished and replaced with criminal forfeiture. So argues IJ's own Dick M. Carpenter. Thank you for coming to our TEDx Talk.

  • After the feds issue certificates allowing private companies to use eminent domain for pipeline construction, they also routinely grant petitions for rehearing for the sole purpose of "further consideration." This means those petitions are not "final" enough for property owners to file an appeal but are still plenty "final" for the company to use eminent domain. D.C. Circuit: Our precedent says this is A-OK. Judge Millett, concurring: And that precedent has enabled a "Kafkaesque regime" that we should really put a stop to.
  • The difference between "cream" and "crème" features prominently in this First Circuit opinion, in which a divided panel holds that a jury should decide whether labeling coffee "Hazelnut Crème" is misleading (under Massachusetts law) if there are no hazelnuts in the coffee.
  • Former vice presidential candidate sues newspaper for defamation, alleging it made knowingly or recklessly false statements. District court calls an evidentiary hearing, hears editorialist testify he was unaware of articles published in his own newspaper proving the statements false. District Court: Which I credit. Motion to dismiss on the pleadings granted. Second Circuit: Vacated.
  • To settle a class action alleging a Google cookie invaded users' privacy, Google agrees to stop using the cookie, pay $5.5 mil to the plaintiffs' attorneys and data privacy organizations. Not a penny goes to class members. Third Circuit: It might be OK for a class action to give money only to third parties and not to class members, but the district court's analysis in this case was half baked.
  • Adopted in 1944, Lehigh County Pennsylvania's official seal features images of everything from flags to books to a bison head (representing the community's protection of hooved mammals). Oh, and the county crammed a Latin cross in there, too. An Establishment Clause violation? The Third Circuit says no. (Ed.: The county's official flag, however, violates the fourth basic principle of vexillographic design.).
  • Pennsylvania Department of Corrections refuses to provide handicapped-accessible shower facilities to disabled prisoner for three months after he is transferred to restricted housing. An Americans with Disabilities Act violation? Third Circuit: Well, it might be, considering the department didn't let this disabled guy take a shower for three months.
  • Texas Mexican Mafia member swept up in FBI sting is charged, acquitted of smuggling heroin into the U.S. He then sues a slew of federal and state law enforcement, alleging they framed him in an effort to improve their arrest and conviction rates against drug traffickers. None of the claims can go forward, says the Fifth Circuit. Dissent: The man's Bivens claim that the feds fabricated evidence should proceed. Cops' lies that lead to prosecution are exactly the kind of law enforcement overreach that people should be able to sue about.
  • Allegation: Informant tells Monroe County, Miss. police that man has meth, $20k cash in his trailer. The man opens his door as SWAT approaches and then closes it in fear. SWAT fires 50 rounds into his trailer, six of which hit him. He dies. Fifth Circuit: Could be excessive force or that officers didn't have a good enough reason not to knock and announce themselves. No qualified immunity for the officer who organized the raid.
  • The state of Texas has long excluded people with felony convictions from many public jobs. This policy ran into an EEOC buzz saw when the agency issued guidance warning employers that if the criminal record screening in their hiring process disproportionately screens out minorities, the employer will need to prove the process is job related and necessary or face Title VII lawsuits from would-be employees. Fifth Circuit: The EEOC exceeded its statutory authority in creating the guidance, so it shall not bind anyone.
  • In the 1933 Claude Rains film, the invisible man is undone when police see his footprints in the snow. In 2016, Taylor, Mich. police followed the snowy footprints of a burglary suspect back to his home. And since there's a factual dispute about whether they then illegally entered the home and roughed him up, the man's civil rights case is going to trial, holds the Sixth Circuit.
  • In the Seventh Circuit, we find a former University of Illinois engineering professor who was fired because he waged a campaign of harassment against undergraduates who didn't give him an award. Judge Easterbrook responds to the professor's suit as you would expect.
  • When farmers destroy wetlands, they lose eligibility for USDA subsidies. Did a Hancock County, Ind. farmer convert wetlands into croplands when he cut down nine trees in the 1990s (to reduce cover for illegal dumping on his land)? The feds' insistence that he did is "incompatible … with common sense" and a 600-page administrative record, says the Seventh Circuit.
  • North Dakota legislators attempt to retroactively change the terms of contracts between manufacturers and dealers of farm equipment. Well, crack open your Con Law casebook because that violates the Contract Clause of Article I, Section 10. So holds the Eighth Circuit (over a dissent), treating the reader to a history of the clause from 1789 to the New Deal and beyond.
  • Facebook users from Illinois file a class action in California, alleging Facebook's collection of biometric data from photographs—which is how Facebook suggests whom to tag in the photos—violates Illinois' Biometric Information Privacy Act. Can the case proceed? Ninth Circuit: It can.
  • Denver police officer grabs pretrial detainee in courtroom, bashes his head into the wall for no reason. (Here's the video.) Detainee wins $50k in suit against the officer. Tenth Circuit: But the detainee hasn't pleaded viable claims against the city of Denver itself. Those claims are dismissed.
  • Two men are driving through rural Alabama from Atlanta to Dallas. One is carrying $52.5k in the truck. After issuing a warning for speeding, officers give him the business. No drugs, no guns. Can the state forfeit the money based on no evidence but a dog alert? Certainly not, says an Alabama court of appeals.
  • Man in passenger seat waves and then extends middle finger in cop's general direction. The cop pulls the vehicle over; the man declines to provide ID. He's handcuffed, cited, and pleads guilty to obstructing an officer during a stop. North Carolina Court of Appeals (over a dissent): Flipping off a cop gives the cop reasonable suspicion that crime is afoot. So the stop was justified, and conviction affirmed. (H/t: @greg_doucette)
  • Married male same-sex couple enters gestational surrogacy agreement with opposite-sex couple, but a Utah court declines to sign off on the agreement because state law requires at least one of the intended parents to be female. Utah Supreme Court: Which is unconstitutional. (H/t: @AnthonyMKreis)

Friends, it is essentially impossible to sustain a claim for damages against federal officers when they violate constitutional rights. That's because courts have shunned the only means available for obtaining relief: Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics. The decision is considered controversial; many believe it to be a product of the Warren Court's judicial activism. Instead of a radical doctrine, however, Bivens is a continuation of a storied tradition—dating back to the Founding—of holding federal officers personally liable when they infringe upon people's fundamental rights. It is also the only route to recovery remaining after Congress eliminated the ability to sue federal officers under state common law in 1988. Today, IJ filed an amicus brief making the case that Bivens is indeed grounded in history and urging the Supreme Court to direct courts to apply Bivens robustly.

NEXT: Trump's Social Media Executive Order Would Let Unelected Bureaucrats Police Online Speech

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  1. Re the fourth basic principle of vexillographic design: Sic semper tyrannis, you all.

  2. Flipping off a cop gives the cop reasonable suspicion that crime is afoot.

    Apparently the apprehended crime was that the SUV passenger waving his middle finger around might give rise to a breach of the peace. Well, an extended middle finger aimed at no-one in particular (as the state alleged) doesn’t qualify for any First Amendment exceptions. And even if it did, an act that one might speculate could lead to a future breach of the peace is not itself a breach, so there is no “crime afoot”. The Court of Appeals of North Carolina has not acquitted itself with distinction.

    1. ” The Court of Appeals of North Carolina has not acquitted itself with distinction.”

      Concurrence. I’d wave my middle finger at them, but apparently, that suggests that I am a criminal, and I wouldn’t want THAT.

  3. “Facebook users from Illinois file a class action in California”

    This case presents an interesting jurisdiction problem… can Illinois, as sovereign, limit what people (and corporations) can do in other states? What limits to their ability to long-arm exist? And the ever-popular does the fact that the interaction is Internet based make any difference?

    1. This actually isn’t a long arm statute case. Long arm statutes are about personal jurisdiction over an out of state defendant. Here Facebook being a CA corp (at least by HQ) means CA courts have general jurisdiction over it. This is diversity which gives Feds subject matter jurisdiction. So there isn’t really a jurisdictional issue here.

      The question is more basic to internet based claims. Where did the action take place. Does the fact that the internet goes everywhere mean that the action takes place everywhere? Or only where the action actually took place (with maybe the addition of HQ and/or state or incorporation if they are different places). I guess that can be framed as jurisdictional, but it isn’t the classic jurisdictional issue that usually arises.

      1. You spent the entire first paragraph missing the point, then come back and restate what I said, and then close by missing the point again.

        1. Perhaps, as is so often the case, the problem lies with you rather than with the people responding to you.

          1. Or maybe not.

            1. Since you seem to be the only one who understood what you were trying to say, I suggest that the problem may be with the sender rather than the multiple readers.

              1. Or you actually prefer a state of stupidity. Don’t forget that possibility.

                1. Or maybe not.

  4. ” a divided panel holds that a jury should decide whether labeling coffee ‘Hazelnut Crème’ is misleading (under Massachusetts law) if there are no hazelnuts in the coffee”

    What if there are filberts?

  5. Wait a minute.

    If a law prohibiting the state from hiring convicted felons disproportionately screens out minorities, does this not imply that the 2
    1968 Gun Control Act disproportionately screen out minorities?

    1. I like the way you think.

      1. Indeed.

        Has anyone thought of this, other than me?

  6. “It is also the only route to recovery remaining after Congress eliminated the ability to sue federal officers under state common law in 1988.”

    Sounds like a Catch-22. Bivins suits are available only for some, not all, abuses of power by federal agents. But then Congress says states can’t fill the gap.

    I mean, it would be one thing if there was a federal cause of action for all abuses by federal officers. Then Congress could tell the state courts to butt out and not duplicate the federal remedies.

    But how can they tell a state they can’t provide justice when the federal courts avow lack of jurisdiction to do so?

    This strikes me as a 9th Amendment issue. One of the rights recognized at the Founding – and, I’d argue, retained by the people – includes the right to sue for injuries to person, property and reputation. I’d think there would have to be *some* court with power to redress any given injury.

    How can the courts show so much activism when it comes to imagery on flags, but refuse to even hear cases where a federal official is accused of illegality?

    Would the constitution have even been ratified in the first place if the people had suspected that the officers of the government they were creating could be held immune for illegalities they committed?

    1. If only the Founders had thought to include a section or an amendment specifically ALLOWING citizens to sue the government and/or its officers for a redress of grievances.

      1. And this is the way you act when you’re fundamentally in agreement with my position. You can’t turn off the snark even when you’re bolstering my argument and criticizing the status quo.

        Though it seems your position would be considered, by the mainstream, at least as “controversial” as mine – at least the legal establishment doesn’t seem to agree with it – but that’s OK, the important thing is to insult people who more or less agree with you, not to work across political differences to find solutions.

        And I hardly think that the First Amendment “allows” (or “ALLOWS”) the people to petition for a redress of grievances, it says that pre-existing right cannot be violated.

        1. Jesus Christ, you like to whine.

          If this is how you feel when I agree with you, no WONDER I so rarely do.

          1. Well, I would never think you disagreed with me because of the merits of the underlying issues.

            1. In any case, if you were in one of your rare friendly moods, I’m really sorry I ruined the moment. Seriously.

              1. Christ, imagine if I’d actually insulted YOU.

                1. Oh, get off it, insults are your default setting so don’t get mad if anyone is suspicious of your comments.

                  1. You poor victim, you. Where should I send this boatload of pity you ordered?

                    1. Perhaps you should put it somewhere the sun doesn’t shine.

                      You were indulging in self-pity because your well-deserved reputation for insults and invective came and bit you in the ass the one time you were trying to say something constructive. Boo hoo.

                    2. “Perhaps you should put it somewhere the sun doesn’t shine.”

                      If that’s where you really want it. I imagine it’s pretty crowded in there, since it seems to be where most of your “arguments” come from.

                    3. Oh, come on, you can do better than that.

                      Let these guys instruct you in the art of the insult (start at 1:12):

                      https://www.youtube.com/watch?v=QSo0duY7-9s

                    4. Make up your damn mind.

                      If insults are my default setting, then I wouldn’t need any instructions on how to deliver them.

    2. It’s because of the “shut up and know your damned place, peasants” doctrine.

  7. “Flipping off a cop gives the cop reasonable suspicion that crime is afoot.”

    Just the opposite is true. Most people who have committed a crime would avoid drawing attention to themselves.

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