Short Circuit: A Roundup of Recent Federal Court Decisions

Crazy pills, a toy gun, and an anomalous elector.

|The Volokh Conspiracy |

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

New on the Bound By Oath podcast: Why oh why did the Supreme Court decline to incorporate the Fourteenth Amendment against the states? That and more from Professors Michael McConnell of Stanford Law and Gerard Magliocca of the Indiana University Robert H. McKinney School of Law.

  • "Because they share a progenitor, a reliable approach to understanding a James Baldwin novel is to compare it, according to a set of criteria, to another work in his oeuvre. Indeed, a thematic reading of Giovanni's Room is sure to inform such a reading of The Fire Next Time, and vice versa. Not so, however, with respect to the broad set of phenomena we categorize as agency action." So writes Judge Wilkins of the D.C. Circuit, ruminating on the difficulties of adjudicating admin law in a case where the court's jurisdiction hinges on the finality of a challenged agency action.
  • Sachse, Tex. officers fire on teen who was holding a gun to his head, which the teen then discharged, severely disabling himself. Fifth Circuit (2015): No qualified immunity. SCOTUS (2016): Vacated in light of a decision in a different case we just released. Fifth Circuit (2018): We had it right. Fifth Circuit, sitting en banc, over five separate dissents: Indeed, no qualified immunity.
  • Allegation: San Antonio police arrest man who is sleeping in his car that is parked on private property, file false report so that he is charged with DWI. He spends 16 months in pretrial detention before charges are dismissed for lack of probable cause. Fifth Circuit: He filed his false arrest claim too late; the deadline started running at the time of the arrest. But he can sue over the 16-month detention; that deadline started running when the charges were resolved in his favor.
  • To prevent the unwarranted removal of Indian children from their families and tribes, Congress passed a law in 1978 permitting a child's parents, a child's custodian, and tribal authorities to intervene in state adoption proceedings, in some cases up to two years after a final adoption decree has been entered. The law also establishes placement preferences for foster care and adoptive proceedings that prioritize Indian families over non-Indian families. Non-Indian families: It violates equal protection to impose special adoption rules based on the race of a child. District court: Race-based classifications get strict scrutiny, and the gov't hasn't shown the law is sufficiently narrowly tailored. Fifth Circuit: The law relies on a political classification, not a racial one, and thus gets rational basis review, which it satisfies.
  • Citing a "mountain of inculpatory evidence," the Fifth Circuit declined to stay the execution of Texas man for the murder of a college student. He was executed Wednesday.
  • Garland, Tex. vocational school is forced to shut down after the feds seize its funds. School: Which violated our constitutional rights; the feds didn't give adequate notice, among other things, and we are entitled to damages. Feds: Sovereign immunity bars constitutional claims for damages against us. Fifth Circuit: That's so. While the Federal Tort Claims Act generally waives immunity for tort claims against the federal government, constitutional tort claims are specifically exempted.
  • Louisiana prisoner has his skull bashed in with a combination lock, the third attack in two months in which one inmate attacked another with a lock. The inmate's mother sues but later substitutes the inmate's two children, whom she'd just learned of. Prison officials: Too late. The children were the proper parties to file suit under Louisiana law, but they were substituted after the statute of limitations had expired. District court: That's so. Fifth Circuit: Reversed. The case can proceed.
  • After her two brothers are convicted of dealing heroin, a Steubenville, Ohio woman takes to Facebook and shares pictures of and derogatory comments about the "bitch ass snitch" who testified against her kin. Which, the Sixth Circuit affirms, is a federal crime, since it's illegal to retaliate against government witnesses. (Prof. Volokh suspects the law violates the First Amendment, but the woman abandoned that claim.)
  • Allegation: While eating dinner, a frail septuagenarian gentleman learns that his girlfriend's store is ablaze. He rushes to the scene, sees firefighters struggling to open locked door, and approaches a Baxter, Tenn. police officer to give her the keys. The officer throws him to the ground, and a nearby paramedic beats him for good measure. Wait … what? Sixth Circuit: The paramedic is not entitled to qualified immunity.
  • Allegation: Teen driver crosses median, causes accident. As he exits the car, the other driver orders him and his two teen passengers to the ground at gunpoint. Yikes! The other driver is an off-duty reserve police officer with the city of Maryville, Tenn. And any reasonable officer would have known not to point guns at people's heads in these circumstances, holds the Sixth Circuit. No qualified immunity.
  • Can Minnesota force videographers to make wedding videos portraying same-sex marriages in a "positive" light despite the videographers' asserted beliefs to the contrary? Two-thirds of this Eighth Circuit panel think the First Amendment might stand in the way.
  • Mexican national is arrested on drug charges, testifies against two co-conspirators, both of whom are members of the notorious Knights Templar cartel. Fearing he will be tortured and killed if sent back to Mexico, he asks to be allowed to stay. Immigration judge: Request denied. Ninth Circuit: Not so fast—he should have been allowed to have his lawyer at the hearing with the immigration judge. Try again.
  • In July, the Trump administration announced a new rule, under which aliens who traveled to the United States from their home country are ineligible for asylum if, on the way here, they passed through a third country and failed to seek asylum there. District Court: The new rule violates administrative law; nationwide injunction. Ninth Circuit: It probably does violate administrative law, but we've gotta stop throwing these nationwide injunctions around.
  • In which the Ninth Circuit reminds us that land can be deemed Indian country regardless of who holds title to it. So, after digging through 166 years of history, we learn that a one-square-mile plot of land known as Section 36 is within the Chemehuevi Reservation and thus San Bernardino, Calif. police cannot enforce California's traffic laws against tribal members in it.
  • Man is arrested at the border with 30 lbs. of cocaine hidden in a spare tire. But did the feds need to get a warrant before searching his phone "forensically"—that is, using software to download call logs and messages from the phone? The Ninth Circuit says yes; they needed (and lacked) reasonable suspicion that the phone would contain digital contraband. Conviction vacated.
  • Allegation: Without announcing himself or giving high school student a chance to drop the gun in his hand, a plainclothes LAPD officer fires into a group of students who were making their way to school. He hits one who wasn't holding the gun. (He lives.) Turns out it was a toy gun with an orange tip. District Court: No qualified immunity. Ninth Circuit: A jury could find the shooting shocks the conscience, but the officer is entitled to qualified immunity because there's no case on point putting the officer on notice not to accidentally shoot a bystander. The students can sue the officer over being handcuffed and interrogated for five hours, however.
  • "MURDER in the second-degree is NOT a crime of violence??? … 'I feel like I am taking crazy pills.'" So writes Judge N.R. Smith of the Ninth Circuit, dissenting from his colleagues' interpretation of a federal law that authorizes heightened penalties for using, carrying, or possessing a firearm in connection with any federal "crime of violence."
  • Allegation: Despite a confession and a mountain of evidence linking man to rape/murder of a 14-year old-girl, Jefferson County, Kan. prosecutors convince him to implicate his younger brother, who is convicted and sentenced to life in prison. Fifteen years later, DNA evidence confirms the original confession, and the younger brother is exonerated. (The older brother, racked with guilt, commits suicide, leaving a note in which he again confesses.) Prosecutor: Even if I fabricated evidence, I have absolute immunity for anything I presented at trial. Tenth Circuit: Ah, but the fabrication did not happen at trial. The case proceeds.
  • In 2016, a Colorado presidential elector breaks faith and votes for John Kasich instead of the winner of the statewide popular vote (as required by state law). Colorado removes the elector and nullifies his vote. Did that violate the elector's constitutional rights? It did, says two-thirds of a Tenth Circuit panel. The Constitution provides presidential electors with the right to vote using their discretion, and states do not have the power to remove an elector or nullify an already-cast vote.
  • West Valley City, Utah undercover officer shoots, kills woman. The police dep't determines the shooting was unjustified and discovers that the officer took cash and a "white powdery substance" out of the evidence room and didn't return it. He's fired, appeals, is reinstated, and then voluntarily resigns in exchange for $120k payout. Manslaughter charges against him are dismissed for lack of probable cause. Former officer: I was retaliated against because, during the investigation into the shooting, I told internal affairs that misconduct in the undercover unit was endemic. I'm a whistleblower. Tenth Circuit: Not so.
  • Extending one's middle finger in the general direction of a police officer (at about the distance of a football field) gives the officer reasonable suspicion to conduct a traffic stop, says the Court of Appeals of North Carolina (over a dissent).

NEXT: Like the Best of Motown Songs, Hitsville Rises to the Top

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  1. “A jury could find the shooting shocks the conscience, but the officer is entitled to qualified immunity because there’s no case on point putting the officer on notice not to accidentally shoot a bystander. ”

    At some point, officers getting this sort of unqualified immunity are going to start getting killed since the courts won’t allow justice via the legal system.

    1. That’s what the pro-police advocates don’t seem to understand. The main reason for a justice system is to avoid the cycle of violence you get when individuals decide to take justice into their own hands.

      If you want to see more police randomly murdered in revenge killings, then continue advocating for zero accountability for police misconduct.

    2. Fuck all cops. They solve and/ or prevent ZERO crimes, they mostly ride around doing illegal things so they can show the rest of us how “tough” they are. Cops are, in reality, stinking little pussy non-men, who without guns and “friends” with guns would get their crooked asses kicked on a daily basis by decent citizens.

    3. The judges who rule this way in these cases would be a more effective target.

    4. It’s the Ninth Circus.
      IIUC LEOs are not allowed to fire at a suspect unless the individual with a “weapon” is a threat to others or the LEO. Otherwise officers could legally shoot someone lawfully carrying a firearm. IOW the Ninth Circus blew it again when a District Court finally got it right!

  2. It’s funny, on the main page of Reason, there is an article that says that the Texas man in the blurb where the 5th Circuit says there is a “mountain of inculpatory evidence,” is likely not guilty.

    I am ambivalent, but the mountain didn’t make its way into the Reason article, nor did the Reason article make a good case of the guy getting railroaded either.

    1. It’s really very simple. When someone claims that someone executed in the last twenty years was likely not guilty, they’re lying.

      True certainty, of course, is never available to humans in any endeavor, but between Federal funding of death penalty appeals and the work of anti-death-penalty activists, every death sentence that is carried out has been closely reviewed by the Federal bench on multiple occasions on multiple grounds. A Federal case has been quite literally made of every irregularity and doubt and has been exhaustively litigated before the execution is carried out.

      1. After seeing this in VC here yesterday, I read about it this morning in my local Austin American-Statesman. I’d send a link but it’s behind paywall. Anyway, it does sound like indeed a mountain of inculpatory circumstantial evidence such as phone records putting the accused near where the body was discovered, her brand of cigarettes being found in his home, some fragments of clothing connecting them. On the other hand there were a couple of inconclusive things from the autopsy: blood under her fingertips did not match his; the medical examiner’s estimate of how long she had been dead put her death a couple of days after the suspect was already in jail on a different charge. The final appeals were around those points, and so the opinion would have come down to them not being sufficiently clear to be EX culpatory

        1. The biggest issue is that he already had several previous habeas motions and the issue of blood flecks was not included previously although it was well contested during the trial. The letter basically said the testimony could have been better worded but was accurate. IOW it had already been contested and was not excuplatory.

          This was just another attempt of the dirtbag to delay his execution again based on twisting old evidence.

  3. ” Fifth Circuit: The law relies on a political classification, not a racial one, and thus gets rational basis review, which it satisfies.”

    When your political classification is based on your degree of racial purity… it’s a racial classification.

    1. Would the court have accepted the ridiculous “tribal affiliation” argument in a Title VII case? “I didn’t not hire him because he has Indian blood, but because he’s a tribal member! It’s a political classification!”

    2. But tribal membership is it based on racial purity, it’s based on the laws of a foreign country with which we have a treaty.

      It’s like the religious tests! Courts can’t enforce “Islamic Inheritance Law” but they can enforce a will that says “in accordance with Islamic inheritance law the firstborn daughter is to inherit everything” because the religious portion can be ignored as surplusage and when the son challenges the inheritance as violating Islamic law he’ll be told that US courts have no lawful method of determining what Islamic law requires, but can instead enforce clearly stated intentions in the will.

      So (assuming the treaty doesn’t prohibit it) a tribe could make each of us members by defining “adopted members” as “anyone who comments on Reason.com with their real name.” If they wanted to be really runny, they’d do that for Facebook and specify that adopted members don’t get voting rights and can claim immunity for a $100 fee.

    3. IIUC the issue is similar to how an adoption of a foreign child would be handled. So to the Native American tribes are considered “sovereign” which is the political classification regardless of the racial classification.

  4. The decision in State of NC vs. Shawn Patrick Ellis, the digitus impudicus case, i. e., the case of the man holding up his middle finger at a NC highway patrolman, has been withdrawn.

    The decision created such an uproar, that I am inferring the Court of Appeals is going to reverse itself. Or at least redraft the loopy opinion of Judge Chris Dillon.

    1. You’re too slow. This is the replacement decision. “This opinion replaces the opinion that was filed 6 August 2019 and withdrawn by order of this Court entered 13 August 2019.”

      1. Yep, I got in a hurry slinging fertilizer on bare banks with baby grass and didn’t read enough. Now since you’re quick-witted, how about telling us what revisions of the first case were made to its offspring to make it more palatable. Civil rights fans are still howling. REASON still howls, as it should.

  5. “Why oh why did the Supreme Court decline to incorporate the Fourteenth Amendment against the states?”

    Probably because the 14th already applies to the states. The main question is whether it incorporates the bill of rights to apply to the states.

    1. I should’ve put a smiley emoticon there.

    2. It’s incorporation all the way down.

  6. In the toy gun case, the 9th Circuit opinion points out that SC earlier said 1) “Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” and SC elsewhere said that 2) where “the result depends very much on the facts of each case . . . officers are entitled to qualified immunity unless existing precedent ‘squarely governs’ the specific facts at issue.”

    In order to believe that 2) comports with the principle stated in 1), one would have to somehow equate “reasonable” with “having complete and current knowledge of qualified immunity precedents relevant to police work, *and* being able to apply that knowledge to the facts of my current situation, in realtime.” Which is a pretty bizarre definition of “reasonable”.

    1. The thing is, you don’t have a right to not be in the way when a cop shoots at a suspect, whether the cop is rightfully shooting at the suspect or not. If you try to insert a right that cops will only hit their targets with every shot, you’re going to have a hard time finding an actual element of the Constitution that says that, but then also showing that it’s possible to train police officers to 100% accuracy.

      1. James, I don’t think your response addresses the point I raised, but I’ll respond anyway: I think that in a rational society one would have a right to expect that cops use deadly force with reasonable prudence. Which of course is different from expecting cops to never miss their target (reasonable prudence doesn’t require perfection).

        1. To me, it’s very simple. Cops should get the same leeway for missing their target and hitting innocents that civilians get. Not more, not less.

        2. ” I think that in a rational society one would have a right to expect that cops use deadly force with reasonable prudence.”

          Sure. Me too. But that isn’t the answer to the question. You’re thinking in terms of “the cop shouldn’t have fired at all, therefore the guy who got hit by the cop’s bullet can sue the cops”. But the person who can raise THAT claim is the person who was shot at, and if THAT person had been hit, they could sue. But that isn’t this case. The person who got hit by a bullet isn’t the one who was aimed at. That person has a different complaint, which is “the cop shot at that guy and hit me instead”, which isn’t dependent on “should the cop have shot at all”, so the fact that the answer is, or might have been “no, the cop shouldn’t have shot at anybody” doesn’t matter.

          1. Attempted manslaughter would be a good charge against the cop. After all, the cop had no reason to discharge his weapon at anyone based on the presumed firearm was not an immediate threat. That is basic training for any LEO. Unlike the man threatening himself with a firearm, holding it to his own head that cops shot.

  7. With regards to the Colorado elector case, does that mean any sort of law passed trying to subvert the EC is unenforceable?

    1. It will be interesting to see how they resolve that issue. The Constitution makes it clear that the States determine the “how” of federal elections within the requirements of the Constitution.

      1. All I know is that I hate this movement towards a national popular vote. The electoral college is a compromise between small and large states and this country could never work without it. Viewpoints and perspectives from throughout the country are necessary and CA/TX/NY/FL/PA/OH should not decide every election.

  8. I don’t get your argument James. The victim wouldn’t have been hit if the cop hadn’t shot. If this action went beyond reasonable prudence because of the danger to others, why doesn’t victim have a complaint?

    1. The victims Constitutional Rights were not violated however the victim does have several complaints available as the officer violated numerous other laws as well as numerous rules and regulations thereby making the government responsible for the officer’s action.

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