Short Circuit: A Roundup of Recent Federal Court Decisions

TSA screeners, background checks, and mandatory bar dues.

|The Volokh Conspiracy |

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

An honest living is one of the best ways to prevent re-offending. But across the country, people with criminal records face more than 10,000 regulations that block them from obtaining a license to work. As an in-depth Washington Post article reveals, these regulations are "often arbitrary and ambiguous," like denying a license based on one's "good moral character." Fortunately, over two dozen states have enacted reforms to pare back these restrictions in recent years. Click here to read the full Post article.

  • Suffolk County, N.Y. officials retain nonprofit organization to visit the homes of registered sex offenders and verify their addresses. Registered sex offender: That's an unconstitutional seizure. District court: Even if the home visits amounted to "seizures," they were justified under the Fourth Amendment's special needs doctrine. Second Circuit: Just so. Even though the nonprofit refers noncompliant sex offenders to the police—which sounds a lot like crime control—the main goal of the program is to improve the accuracy of the sex offender registry. Which is a special non-law enforcement need, so the program is A-OK.
  • Under federal law, children born outside the U.S. to unmarried noncitizens can automatically gain citizenship if their mother becomes a citizen, but fathers can only pass on citizenship to their out-of-wedlock children if they first legitimate them. But what if the mother is deceased and the only way to legitimate the child is through marriage of the parents? Third Circuit: Creating a system where fathers—but not mothers—are forever precluded from passing on citizenship to their children violates equal protection.
  • Allegation: TSA screeners falsely accuse traveler of assault. She spends 18 hours in jail and is charged with 10 crimes, all of which are resolved in her favor after TSA declines to turn over video and the screeners either don't show up to court or give contradictory testimony. Can she sue? Third Circuit (2017): One can sue when federal law enforcement officers commit intentional torts, like fabricating criminal charges. But screeners aren't law enforcement, and Congress hasn't waived sovereign immunity for mere employees. Third Circuit (en banc, over a dissent): Screeners search people. They are law enforcement, and the suit can proceed.
  • Man is barred from purchasing a gun but, because of a lapse in the FBI's background check system, buys one anyway from a federally licensed firearms dealer. Two months later, the man uses the gun to murder nine people in a Charleston, S.C. church. Can the survivors and families of the deceased sue the feds? The Fourth Circuit says yes.
  • Did Mississippi officials dilute African Americans' voting strength in District 22, which includes the Mississippi Delta, when they redrew its legislative boundaries in 2012? (The majority of the district's voters are African American, but African American-preferred candidates consistently lose there.) Indeed so, says the Fifth Circuit, which violates the Voting Rights Act. The boundaries cannot be used in the November 2019 election. Dissent: "Districting is the politics of politics." And the district court's order to redraw the lines to increase black voters by 11% violates the Equal Protection Clause.
  • As a Detroit woman is stirring a pot of macaroni on Thanksgiving eve, masked police officers break down her door, handcuff her tightly, and respond thusly when she complains of pain: "[S]hut up, bitch, you shouldn't be so fat." In the excessive force lawsuit that ensues, officers invoke qualified immunity. Officers: "Handcuffing that results in bruising does not violate any clearly established constitutional right." Sixth Circuit: Point of fact, it can. So to trial the case must go.
  • Allegation: Detroit woman legally purchases firearm after her home is robbed. Seeking to familiarize herself with it, she fires several rounds from her front porch into the abandoned house next door. Police are called and quickly home in on the woman's fiancé (despite her loud protestations that she shot the gun), whom they beat and arrest. One cop informs the man he's "going down for attempted murder of a cop" and writes a report alleging the man fired shots at the cops, though no other officers or evidence corroborate the report. On the morning trial was to begin, the prosecutor learns—for the first time—that an evidence tech's report contradicts the cop's report. Case dismissed. Sixth Circuit: No qualified immunity for the cops.
  • Chicago man, on Facebook: "Keep pushing me and it won't end well." "I've given plenty of warnings." "I swear to Allah and everything I hold dear that I will resort to murder in the next 30 days." Chicago man, on trial: These "emulations of rap songs" are protected by the First Amendment. Seventh Circuit: They are not.
  • Allegation: After car does U-turn to avoid roadblock and woman admits to possessing marijuana, St. Louis police conduct strip and body cavity search on the woman—out of public view but in view of a male officer. (No additional contraband is found, it seems, and the woman is not charged.) Eighth Circuit (with a pair of partial dissents): Her unreasonable search claim can proceed. But she can't sue for excessive force because there's no precedent saying officers can't slam handcuffed and unresisting (if distraught) suspects into hard surfaces. Nor can she sue over the (concededly) inaccurate incident report that police filed.
  • Following the Supreme Court's decision in Janus v. AFSCME, are mandatory state bar association dues now unconstitutional? Eighth Circuit: Not at all! You see, Janus was about unions; it didn't say anything about guilds.
  • Thirty-seven-year-old man and 16-year-old girl have sex, which is legal in Nebraska. He records it and shares the video only with her. Eighth Circuit: Which is child porn. Conviction and eight-year sentence upheld. Concurrence: This result is "unseemly and quite possibly unfair" but compelled by Supreme Court precedent.
  • Allegation: Fresno, Calif. police carry out a search warrant, report they seized $50k cash. But according to the targets of the search, they actually seized $150k cash and $125k worth of rare coins. Can the property owners sue? Ninth Circuit (March 2019): No. There's no precedent saying cops can't steal things they seize while executing a search warrant. Ninth Circuit (this week, a revised opinion with a new concurrence from Judge M. Smith): Yeah, we got this right. (Head over to California Appellate Report for more.)
  • Man becomes convinced that, as a result of mistreatment by a Veterans Affairs medical center, he is entitled to millions of dollars and is the legal owner of the center itself. He is, alas, mistaken, but he makes multiple phone calls in a single day in which he asserts his position to a staffer in terms both vulgar and personal. Does it violate the First Amendment to charge him with violations of Washington state's telephonic harassment law? Two-thirds of this Ninth Circuit panel says no.
  • People who suspect their names have been added to the Terrorist Screening Database can find travel to be a nightmare, but they're always permitted to seek review by the Department of Homeland Security. Constitutionally sufficient process? Eastern District of Virginia: Well, DHS doesn't ever actually tell you if you are or were in the database, so no, no it's not.
  • "Honey, you've got to read this! The New Mexico Supreme Court just abolished the spousal privil … oh crap."
  • Instead of the will of the people, elections in North Carolina reflect "the carefully crafted will of the map drawer," says a state trial court, ruling that legislative boundaries drawn by Republican lawmakers violate the state's constitution. (There will be no appeal.)

In July, Mississippi outlawed veggie burgers—or at least calling them veggie burgers. Which violates the First Amendment! The label—and other banned labels like "meatless meatballs" and "vegan hot dogs"—is not confusing to consumers. Rather, the ban served to protect the meat industry from competition from vegan and vegetarian food companies. But this week, and in response to an IJ lawsuit, officials reversed course, proposing new rules that replace criminal penalties with common sense. Click here for more.

NEXT: Antonin Scalia's Surprising Role in the Latest Supreme Court Fight Over Legal Protections for Gays

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  1. The one about the Fresno officers stealing thousands of dollars during a search really has me scratching my head. From the opinion:

    The panel held that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers were entitled to qualified immunity.

    Can someone explain what this means in English?

    1. Means that, even though it was wrong, and even though everyone knows it was wrong, they aren’t liable for doing it:

      Footnote 1: “Importantly, we observe that the technical legal question of whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment is a different question from whether theft is morally wrong. We recognize that theft is morally wrong, and acknowledge that virtually every human society teaches that theft generally is morally wrong. That principle does not, however, answer the legal question presented in this case.

      1. So they get to keep the money? Are they immune from the government prosecuting them for theft?

        1. Assuming that they did steal the money, they will be able to keep it until a court order them to give it back. As the original opinion noted, there are likely a number of other avenues to pursue such a claim besides a § 1983 suit.

          The qualified immunity doctrine at issue here is a protection against civil liability. It does not apply in criminal cases.

          1. How is government taking your stuff (via theft is irrelevant) without compensation not an immediate and long-recognized constitutional rights violation?

            1. Seized with a warrant. Then you get due process, and then (if you win) you get your stuff back, or (if you lose) it isn’t your stuff.

      2. How about a state criminal theft complaint? That might pressure the cops to make restitution.

      3. Qualified Immunity should be treated like a vampire: Sever the head, fill the mouth with communion wafers and bury it at a crossroads, while the body is buried elsewhere with a stake through the heart.

    2. I’ll try. So under federal law, you can sue police officers when they violate your constitutional rights, which sounds easy enough. But for various reasons the Supreme Court has established a doctrine called qualified immunity which means that sometimes the officers cannot be sued and you’ll lose your case even if your rights were in fact violated.

      The officers get qualified immunity in cases where a court determines that a right was “not clearly established” at the time of the alleged violation. Here, “clearly established” means that the Supreme Court or circuit court have said that this particular conduct violates the Fourth Amendment. Once that happens, an officer has “fair warning” that their bad conduct would be unconstitutional. It notably does not flow directly from a common sense reading of the words of the Amendment. In the ideal world, this would only apply to really close and difficult cases where there there is not a consensus on what constitutes a Fourth Amendment violation and judges disagree and issue conflicting opinions on the issue all the time. Issues involving the scope of a vehicle search or how the amendment applies to new technologies is a good example of this.

      In practice though, it can shield officers from suit for doing blatantly unconstitutional things, as here, simply because a court never considered the issue before. Extreme conduct might not be clearly prohibited under case law because most officers understand that the conduct at issue would violate someone’s rights so they don’t do it and no one ever has to sue them over it, and it never gets to a circuit court.

      1. So, are the cops not liable for simple theft?

        1. The cops are still liable for simple theft.

          BUT, it isn’t a violation of your Constitutional rights. It’s a violation of your property rights. So, if you sue to recover your property by asserting a claim that your property rights were violated, you get a different outcome than if you sue to recover your property by asserting a claim that your Constitutional rights were violated.

          1. It’s a violation of your property rights.

            Do those include the right not to be deprived of property without due process?

            1. “Do those include the right not to be deprived of property without due process?”

              If they’re denied due process, it would.

        2. It falls under the “Fuck You, That’s Why” rule.

      2. Why the hell would you need a specific precedent that cops can’t commit crimes? Isn’t there adequate precedent that people can’t commit crimes, and cops are people?

        I mean, I can sorta see genuinely qualified immunity for acts that are legal, but if something is a crime if anybody does it, granting cops immunity anyway is insane.

        1. It’s not enough to show that the public officials did something they couldn’t do. Under § 1983, you have to show that they did something the United States constitution says they couldn’t do.

          Obviously, the California Penal Code says that police officers can’t steal things. But that doesn’t mean that violating those provisions of state law also violate the constitution.

          1. Seems like it’s the very definition of an unlawful seizure under the color of law, though, so I’m not particularly convinced.

            1. The part that’s tripping you up is that the cops showed up with a valid warrant to seize the money, and then seized the money. You don’t have a Constitutional right to not have your money seized by cops with valid warrants. You DO have a right to have all of your money that was seized by the cop with a valid warrant returned to you by the law enforcement agency at the end of the due process related to whatever it was that caused the warrant to issue, unless the due process shows that you aren’t entitled to the money.

              1. The problem with that reasoning is that, if the cops show up with a valid warrant, take $150K, and record it as having taken $50K, what’s actually happened is that $50K was seized under the warrant, and $100K was stolen by the cops on the side.

                Agreed, they didn’t have a constitutional right to not have the $50K taken. But an unlawful seizure in the amount of $100K still took place.

                But, as is almost always the case, the courts take the path that negates the liability of the cops, even if they’re clearly acting in a criminal manner.

                1. They’re taking the position that the agency is responsible for the actions of its employees/agents.

                  Those bastards.

                  1. So can they sue the agency?

                    1. They ARE suing the agency. Well, the City of Fresno, not the PD specifically.

        2. IIUC the owners filed the wrong charges. Their Constitutional Rights were not violated by the officers because the officers had a valid warrant to remove property. There will never be a precedent that officers cannot remove property under a valid warrant. Instead of claiming a violation of their Constitutional Rights; they should have filed theft/fraud or other specific charges against the officers and police department.

          1. “Their Constitutional Rights were not violated by the officers because the officers had a valid warrant to remove property.”

            I disagree. I think their constitutional rights were violated because (assuming the facts alleged are true) the officers did not seize the disputed property pursuant to a valid warrant. A warrant cannot give an officer the right to seize property for his personal use.

            1. You’re confusing what the court says is legal (seizing property pursuant to a valid warrant) and what happened after wards (converting the seized property to personal use) which the court isn’t saying is legal, they’re just saying it isn’t a Constitutional violation..

                1. OK. You’re just wrong, then.

                    1. Whatever. You’re totally NOT wrong, you’re just not in accord with the current legal rulings. Whatever you want to call that.

                    2. Had you actually read the decision, you would know that the only other Circuit Court to decide the issue held that the police stealing property pursuant to a warrant was a Fourth Amendment violation.

                      “We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.1 The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does. See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004).”

                      So try again, skippy. Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important.

                    3. “So try again, skippy”

                      OK.
                      You’re totally NOT wrong, you’re just not in accord with the current legal ruling. Whatever you want to call that.

                    4. Had you actually read the decision, you would know that the only other Circuit Court to decide the issue held that the police stealing property pursuant to a warrant was a Fourth Amendment violation.

                      “We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.1 The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does. See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004).”

                      So try again, skippy. Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important.

                    5. “So try again, skippy.”

                      again? OK.

                      You’re totally NOT wrong, you’re just not in accord with the current legal ruling. Whatever you want to call that.

                      Here’s a few more, since I’m fairly sure you’ll keep asking:

                      You’re totally NOT wrong, you’re just not in accord with the current legal ruling. Whatever you want to call that.
                      You’re totally NOT wrong, you’re just not in accord with the current legal ruling. Whatever you want to call that.
                      You’re totally NOT wrong, you’re just not in accord with the current legal ruling. Whatever you want to call that.
                      You’re totally NOT wrong, you’re just not in accord with the current legal ruling. Whatever you want to call that.

                    6. Try again, skippy. Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important.

                    7. “Try again, skippy.”

                      How many more times?

                    8. Until you get it right. How many times that will be is entirely up to you.

                    9. “Until you get it right.”

                      Oh, you mean already? And all along? OK. Agreed.

                    10. Try again, skippy. Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important. Somehow you’ve completely managed to avoid posting anything from the actually decision supporting your claims.

              1. it isn’t a Constitutional violation.

                Let’s see. They seize $150K and $125K of rare coins, claiming they only seized $50K.

                I’m just a layman here, but that certainly sounds like an “unreasonable seizure” to me.

                1. They had a warrant which authorized them to seize all the money and things of value.

                  When they have a warrant to seize, seizing isn’t unreasonable.

      3. IIUC the officers had a legal search warrant that authorized them to take the property therefore they did not violate anyone’s Constitutional Rights.

        What they should have done was file a criminal complaint against the officers and police department; if they had evidence that the $100K and $125K of coins were there before the search and not there after the search and confiscation.

        1. Yes. File the suit with the correct legal claim, and you get more favorable results.

      4. “The officers get qualified immunity in cases where a court determines that a right was “not clearly established” at the time of the alleged violation. Here, “clearly established” means that the Supreme Court or circuit court have said that this particular conduct violates the Fourth Amendment.”

        So that means the entire criminal code does not apply to police until courts say that it does — one offense at a time. Let’s see, that should take about 300 years for the courts to catch up, right?

        Is there a magic phrase that can be inserted in new criminal laws that makes them applicable to police from day 1 without waiting for a court case?

        1. And in practice, courts declare QI without ever deciding that the tort at issue was in fact a violation of Constitutional rights. The leaves the cops free to continue to pull this shit, and I believe this is by design.

    3. “Can someone explain what this means in English?”

      It means that judges are stupid. The due process clause of the fourteenth amendment explicitly addresses what the cops did.

      1. According to the opinion, the only court of appeals case to address the issue held that analogous conduct did not violate the due process clause of the fourteenth amendment. Are there additional authorities that the panel missed?

        1. “According to the opinion, the only court of appeals case to address the issue held that analogous conduct did not violate the due process clause of the fourteenth amendment.”

          1. Who, pray tell, wrote the court of appeals case?
          2. The op talks about substantive due process. The cops violated the victims’ procedural due process rights. This is beyond debate, and if judges choose to question it, they simply make people lose confidence in the courts, by proving the statement in my original comment: Judges are stupid.

          1. If a cop shows up with a (valid) warrant to seize your money, and then proceeds to seize your money, which right was violated when the cop seized your money?

            1. The cop showed up with a valid warrant to seize your money, seized part of it, and stole most of it. As demonstrated by the fact that most of the money didn’t end up in an evidence locker.

              You’re engaging in a bit of the fallacy of equivocation here; Some of the money was legally “seized”, but most of it was just “seized” in the different sense of having been taken.

              1. Prof. Kerr talks about how double seizure like this is indeed a tricky legal area.

              2. “The cop showed up with a valid warrant to seize your money, seized part of it, and stole most of it. As demonstrated by the fact that most of the money didn’t end up in an evidence locker.”

                The cop showed up, seized all of your money, and then proceeded to steal some of that money from evidence locker. It’s a crime to steal from the evidence locker, and it probably creates causes of action for both the agency and the original owner to sue for conversion. But not a Constitutional claim.

                “You’re engaging in a bit of the fallacy of equivocation here”

                No, you are. The money was seized pursuant to a warrant. All of it. Then, later, the cop made off with some of it.

                Turn it around. If the property-owner sues to recover the seized money, should the agency be legally able to return only part of it, and say “this is all we seized” and “if you want more, go find the cop who took it and sue him”? Or should they have to return all of it, even if they have to make up for what their employee stole?

                1. ” and then proceeded to steal some of that money from evidence locker. ”

                  As I read it, most of the money never made it to the evidence locker, so, no.

                  1. Right. The receipt indicated that only $50K was taken.

                  2. “As I read it, most of the money never made it to the evidence locker, so, no.”

                    Oh, the money wasn’t seized. What’s the complaint, then?

      2. It means that judges are evil, not stupid. You think they don’t understand that?

        1. porque no los dos?

    4. The plaintiffs in this case filed a claim for damages under 43 U.S.C. § 1983, a federal statute that allows lawsuits against state officials in some circumstances. In order to obtain damages under that statute, it’s not enough to show that the state actor harmed you: you have to show that the state actor violated your rights under the U.S. constitution. In addition, you have to show that at the time you were harmed, it was clearly established that the harmful act was in fact unconstitutional. (A lot of people don’t like that part, but the Supreme Court says it’s the law, and they’ve made it very clear that they mean it.)

      Here, the plaintiffs argued that the alleged theft violated the fourth amendment. The court held that there was nothing clearly establishing that the fourth amendment would protect against what the plaintiffs were claiming had happened, and thus that the § 1983 claim was not viable.

      (The panel did not, of course, say that it would be legal or acceptable for police officers to steal property seized during a warrant — just that it might not violate the fourth amendment.)

    5. From what I can tell, the police can still be arrested and charged for the theft, just not the constitutional violations.

      1. But won’t be, because the police and the prosecutor are on the same side. The very problem the civil cause of action was supposed to get past.

        1. When the prosecutor/police refuse to investigate then your Constitutional Rights have been violated especially if you have evidence that the police took more property than they reported and checked in to the evidence locker.

    6. “Can someone explain what this means in English?”

      The complicating factor is that if the cops have a valid warrant that allows them to seize what they seized, your civil rights haven’t been violated when the seize what they seized.

      Now, there are several other wrongs in play that can still create liability. Technically, the cops haven’t stolen from the plaintiffs, they’ve stolen from the law-enforcement agency. (The agency seized the money pursuant to a warrant, meaning the agency is in lawful possession of the money until further lawful process is carried out that authorizes a change in ownership as well as possession.) In theory, IF the plainfiff prevails in that proceeding, they can demand the return of all the money, including the money that was taken by officers and not accounted for, and the agency can then demand an accounting from the officers. If the plaintiff loses the case, and the agency is allowed to seize and retain the money, they can demand an accounting from the officers for where the missing money has gone.

      Plus, of course, the prosecutor can pursue criminal charges against the officers in addition to any civil penalties that might apply.

      The problem is one of proof. Unless you get one of the cops to confess, it’s hard to prove how much money was really one the scene when the officers showed up with the warrant.

      1. Now, there are several other wrongs in play that can still create liability. Technically, the cops haven’t stolen from the plaintiffs, they’ve stolen from the law-enforcement agency. (The agency seized the money pursuant to a warrant, meaning the agency is in lawful possession of the money until further lawful process is carried out that authorizes a change in ownership as well as possession.)

        You got this wrong the last time this case was discussed, and you have apparently not learned any law in the interim. Theft depends on ownership, not possession. That the agency may have been in lawful possession of the money (actually, it was never in any possession of the money) does not mean that the agency owned it; the plaintiffs still did. Therefore “technically” the cops stole from the plaintiffs.

        1. Theft depends on ownership? Why didn’t anyone tell me that? I would have referred specifically to the difference between ownership and possession in the comment you’re referring to! Oh, wait… you couldn’t be bothered to read that.

          “(actually, it was never in any possession of the money”

          Unless, of course, it takes possession when it’s agents, acting in the course of their duty, physically takes the property listed in the warrant that describes, with particularity, what the agency intends to seize, or to use other words, to take into its possession.

          Quick question: If a bank robber robs a bank, can the bank say “sorry customers, it was your money in our vault, not ours, so we’re going to deduct the money the robbers got away with from your account balances.” and then proceed to do so? This seems in accord with your definition of theft… the bank only has possession of depositor’s funds, not ownership… therefore it is impossible to steal money from a bank.

        2. PS:
          Your assertion that “I haven’t learned any law” seems weak considering I’m accurately describing the actual outcome of the appellate court seems to show that you are the one who doesn’t understand how the law works. I don’t think that’s actually true, which suggests that something else is severely clouding your judgment.
          You should work on that.

          1. But you are not accurately describing the actual outcome. I doubt you’ve actually even looked at the actual case.

            1. You blew your credibility upthread, Mr. Not-Wrong.

              1. Had you actually read the decision, you would know that the only other Circuit Court to decide the issue held that the police stealing property pursuant to a warrant was a Fourth Amendment violation.

                “We have never addressed whether the theft of property covered by the terms of a search warrant, and seized pursuant to that warrant, violates the Fourth Amendment.1 The only circuit that has addressed that question—the Fourth Circuit—concluded in an unpublished decision that it does. See Mom’s Inc. v. Willman, 109 F. App’x 629, 636–37 (4th Cir. 2004).”

                So try again, skippy. Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important.

                1. What does “unpublished” mean, Mr. Not-Wrong?

                2. ” Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important.”

                  You got me. They obviously NEVER said anything even approaching “Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant”

                  1. Try again, skippy. Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important.

                    1. Doesn’t seem to work.

                    2. Try again, skippy. Show me where, in the decision, the Ninth Circuit discusses the issues you think are so important.

                    3. “Try again, skippy.”

                      After I did, you just kept saying “try again, skippy”.

                      Obviously, your power of denial is more powerful than my run-of-the-mill actual reality.

                    4. You haven’t. You haven’t posted anything discussing who owned the money and coins. You haven’t even posted anything saying it wasn’t a Fourth or Fourteenth Amendment violation.

          2. Your assertion that “I haven’t learned any law” seems weak considering I’m accurately describing the actual outcome of the appellate court

            Well, no, you’re not accurately describing it at all. The 9th Circuit’s decision did not turn on the false assertion that you have repeatedly proffered that the cops “technically” stole the money from the government rather than from the property owner.

            1. ” The 9th Circuit’s decision did not turn on the false assertion that you have repeatedly proffered”

              No, it turned on their determination that neither the fourth nor the 14th amendments were violated.

              You know, the reason I’ve stated, repeatedly, is the reason why there’s no Constitutional violation to correct with a section 1983 lawsuit.

              1. “No, it turned on their determination that neither the fourth nor the 14th amendments were violated.”

                Had you bothered to read the summary, just the summary, not even the full decision, before gracing us all with your wisdom you would know that this is incorrect. The panel did not, and did not need to, determine whether the Fourth or Fourteenth Amendments were violated. Instead, the panel merely “held that at the time of the incident, there was no clearly established law holding that officers violate the Fourth or Fourteenth Amendment when they steal property seized pursuant to a warrant. For that reason, the City Officers were entitled to qualified immunity.” The summary goes on to explain that “[t]he panel held that although the City Officers ought to have recognized that the alleged theft was morally wrong, they did not have clear notice that it violated the Fourth Amendment.”

                1. ” The panel did not, and did not need to, determine whether the Fourth or Fourteenth Amendments were violated.”

                  That must be why they concluded

                  “Appellants did not have a clearly established Fourth or Fourteenth Amendment right to be free from the theft of property seized pursuant to a warrant”

                  Reading fail on your part. Not that I expect you to admit it.

                  1. Do you really not understand the distinction between whether a constitutional right was violated and whether that right was clearly established in qualified immunity cases? Courts don’t have to, and (as in this case) frequently do not, bother deciding whether the right was actually violated when they hold that the right wasn’t clearly established. Again, had you actually read the opinion you are attempting to explain, they laid it out pretty clearly.

                    “For that reason, we need not decide whether the City Officers violated the Fourth Amendment. The lack of “any cases of controlling authority” or a “consensus of cases of persuasive authority” on the constitutional question compels the conclusion that the law was not clearly established at the time of the incident. Wilson v. Layne, 526 U.S. 603, 617 (1999). Although the City Officers ought to have recognized that the alleged theft of Appellants’ money and rare coins was morally wrong, they did not have clear notice that it violated the Fourth Amendment—which, as noted, is a different question.”

    7. I’m with John Rohan.

      I still need an explanation in English, not a bunch of legal argle-bargle.

      Seized with a warrant. Then you get due process, and then (if you win) you get your stuff back, or (if you lose) it isn’t your stuff.

      But apparently actually stolen by the police, and not in the possession of the government. Good luck getting it back.

      Why aren’t these cops being prosecuted?

      1. “apparently actually stolen by the police, and not in the possession of the government. Good luck getting it back.”

        1) According to the plaintiffs, stolen by the police officers.

        2) Any dollar is as good as any other dollar. So, if plaintiffs win both cases (proving that the money isn’t the product of an illegal scheme, and that it was stolen by the officers) they’ll get a check for the full amount that was taken from them.

        “Why aren’t these cops being prosecuted?”

        Who told you they aren’t/haven’t been?

        1. Any dollar is as good as any other dollar. So, if plaintiffs win both cases (proving that the money isn’t the product of an illegal scheme, and that it was stolen by the officers) they’ll get a check for the full amount that was taken from them.

          1. The check is no good unless the officers can cover it.
          2. Do they get legal fees, interest, whatnot?
          3. Rare coins, unlike dollars, may not be fungible. Once they are sold the plaintiffs are left arguing about their value.

          This is all a very nice theoretical discussion about the 4th Amendment and the tricky nature of double seizure, and so on. Meanwhile, the plaintiffs got robbed and, under the best of circumstances, might get part of their money back.

          1. Let’s note, in the midst of all this fin legal analysis, and instructions to file a suit making some different claim, that the seizure took place in 2013. Checking my calendar, I see that it is now 2019, so the plaintiffs have been out the money for six years.

            So do they get to spend another six years waiting for the newly refiled suit to be decided?

            1. You’re assuming they had a right to the money in the first place. If they didn’t, then approximately none of this matters.

              The instructions to file suit making a different (correct) claim are in fact retrospective… file the suit making the correct claim the first time. Seems that if they’d filed the proper suit, in the proper court, with sufficient proof to support their claims, they’d already have their money in hand.

          2. “1. The check is no good unless the officers can cover it.”

            The agency has enough money to write the check.

            “2. Do they get legal fees, interest, whatnot?”

            Depends on whether or not the state’s little tort claims act has a fee-shifting provision in it.

            “3. Rare coins, unlike dollars, may not be fungible.”

            But, they have a valuation, which is measured in dollars, which are.

        2. Who told you they aren’t/haven’t been?

          The Ninth Circuit judges, by negative implication.

          1. The issues of those charges wouldn’t have been new or novel, and therefore wouldn’t have reached the ninth circuit.

            1. I didn’t say that it would have “reached” the Ninth Circuit. But they would’ve almost certainly mentioned it in the opinion.

    8. This is probably a dumb question, since the defendant doesn’t seem to have raised it, but why does the federal government have jurisdiction over non-commercial child pron, as in the Rouse case?

      If Rouse and B.A. made video recordings and shared it only with each other, what’s the federal hook? Were they transmitted across state lines, or is there an incidental effect on the larger marker for videos?

      1. D’oh – I do not like the comment system. I could have sworn I was making a top-level comment …

      2. “why does the federal government have jurisdiction over non-commercial child pron, as in the Rouse case? ”

        Goes like this: People who like child porn can’t buy it legally, but they can, and do, barter with each other. Because of this, any production potentially enters interstate commerce.
        (this logic is a lot like the farmer who grew grain on his own farm to feed his own livestock… meaning he didn’t have to buy grain, and grain is traded interstate. The s-t-r-e-t-c-h definition of interstate commerce.)
        There might also be a hook for transmission by phone network or Internet, since these are both federally regulated.

        If I’m reading between the lines of your inquiry correctly… then you are correct. The jurisdiction is flimsy, but not likely to be overturned.

  2. “But she can’t sue for excessive force because there’s no precedent saying officers can’t slam handcuffed and unresisting (if distraught) suspects into hard surfaces. Nor can she sue over the (concededly) inaccurate incident report that police filed….

    “There’s no precedent saying cops can’t steal things they seize while executing a search warrant.”

    OK, now they’re just playing with us. Tell me these opinions are just practical jokes.

    1. “Police have to make split-second decisions and they shouldn’t be second-guessed. Do they throw a nonresisting handcuffed suspect to the ground? Do they file inaccurate reports? Can they steal? They have only moments to decide, and then some lawyer will make those poor peace officers spend years defending themselves. Thin blue line!”

      /sarc

    2. “Tell me these opinions are just practical jokes.”

      Sorry, I can’t do that, Dave

    3. Yes, they are playing with us. This is their way of rubbing our noses in the fact that we have no recourse.

      And will have no recourse until people get sick enough of it to respond extra-judicially to these sorts of outrages.

      1. I don’t agree with the way the court’s have interpreted qualified immunity.

        But the fact of the matter is, qualified immunity arises from a statute. Statutes are acts of Congress. Congress can amend its statutes any time it wants. It can clarify the use of qualified immunity, narrow it, abolish it completely if it wants. It’s not powerless if it wants to act. And if it won’t act, people have power to elect representatives who will, if they would only use that power.

        Yes, it would be extrajudicial action. But it would be the kind of extrajudicial action the framers intended.

        1. No, actually, the fact of the matter is that (un)qualified immunity was invented by the Supreme court back in 1967, in a case called Harlow v. Fitzgerald. No statute was involved.

          1. But even Harlow v. Fitzgerald identified a form of qualified immunity “as recognized common law.” Legislatures, including Congress, have power to modify the common law by statute. The fact of the matter is, if Congress passed a law tomorrow narrowing or abolishing qualified immunity, or articulating new standards under which it should apply, the courts would enforce it.

            I completely agree qualified immunity was never intended to, for example, permit lawyers to come up with ways to insulate government officials from liability by prospectively researching past cases and identifying areas not specifically covered by pass cases in which officials could then be considered free to act without legal consequence.

      2. As the original panel explained, it’s very likely that these plaintiffs do have a recourse (assuming they can prove their allegations, of course). That recourse just isn’t 43 U.S.C. § 1983.

        1. I’d suggest that 43 U.S.C. § 1983 allows the victims of constitutional violations, committed under color of law, to sue their victimizers.

          The cops have advance notice, thanks to the Constitution itself, that they can’t deprive anyone of life, liberty or property without due process of law.

          Due process indicates that the purpose of seizing a suspect is not to administer “street justice” but to bring the suspect into court for any charges to be adjudicated. Any force beyond what’s needed for that purpose (or to stop a suspect from fleeing justice) is a violation of due process.

          Taking a suspect’s property without legal authority or legal recourse is such an obvious violation that I don’t see why they have to wait for a precedent.

          And filing a false report – if that doesn’t deny due process to the person against whom the false report is filed, I don’t know what a denial would look like.

          1. “I’d suggest that 43 U.S.C. § 1983 allows the victims of constitutional violations, committed under color of law, to sue their victimizers.”

            It isn’t a Constitutional violation if police officers obtain a valid warrant to seize your property, and then seize your property.

            It violates a number of statutes if they don’t account for it properly, and convert it for personal use. But those claims don’t ripen until the due process around the seizure runs its course, and the court orders the property returned, and the police agency fails to return it.

            1. And from the link provided, here are the thoughts of law professor Shaun Martin:

              “I’m also not persuaded by the concurrence’s argument that since the warrant authorized the officers to take all the money, and that’s what they did, no right was violated since the Fourth Amendment only protects the initial seizure, not what happens thereafter. I think that slices the meat far too thinly. It’s one thing to take your property and put it in a court, where you can potentially get it back. But to flat out steal that property is another. The rights deprivation resulting from the latter is far more serious than the former. Moreover, even if this out-of-circuit precedent is right, and the Fourth Amendment doesn’t stop the police from stealing your stuff, then I feel fairly confident that other portions of the Constitution — the Fourteenth Amendment comes to mind — do.

              “Maybe the Framers thought: “We want to make sure that the government doesn’t store an army horse in someone’s house, and that it doesn’t take someone’s property without paying for it, but if the state comes into your house and steals all your money, we’re fairly cool with that.””

              1. It may be seized, but it is still owned until courts decide it is criminal product and is no longer therefore their property. So it is stolen from them even if not legally in their control at the moment.

                1. Under this reasoning, the agency is not liable for making the plaintiff whole. The agency only needs to return what the criminal cop turned over to them, and can then wash their hands of the matter.

                  Do you not understand why that is an undesirable result?

                  1. Shaun Martin again:

                    “The facts are totally straightforward. The police officers at issue execute a search warrant and seize some property pursuant to the warrant, and fill out an inventory form that says that they only took $50,000. But the owners of the property say that the officers actually took over $150,000 in cash — plus another $125,000 in rare coins — and simply pocketed the difference.

                    “To me, there’s no way that government officials can do that consistent with the Constitution. What’s the point of the Fourteenth Amendment — its just compensation clause, its protection of property, etc. — if the government is permitted to simply take your property from you with utterly no remedy under our foundational principles?! It just doesn’t make any sense.

                    “But Judge Milan Smith — joined by Judges Nguyen and Rastani (sitting by designation from the Court of International Trade — holds that there’s no federal remedy. Because, to them, it’s “unclear” whether the Constitution permits police officers to straight up steal your property, and hence there’s qualified immunity.

                    “No way.

                    “To me, this is one of those cases “in which the constitutional right at issue is defined by a standard that is so ‘obvious’ that we must conclude . . . that qualified immunity is inapplicable, even without a case directly on point.” A.D. v. Cal. Highway Patrol, 712 F.3d 446, 455 (9th Cir. 2013).” For example, I’m sure there’s no case on point that says that police officers can’t turn you into a flea, or for you to parade naked during the Rose Bowl parade, or a whole plethora of other things that they obviously can’t do. Outright stealing from you is another one of those things that, to me, is so totally obvious that there doesn’t need to be a case. And I’m sure even the police would agree with that principle. You can’t steal. That’s obvious. Full stop.”

                    1. Amen, Eddy.

          2. I think there is a place for qualified immunity, to protect officials from the retrospective consequences of new rulings in gray areas.

            But the idea that officers of the law cannot steal from the public is neither new nor gray. Nor is the idea that the 4th Amendment prohibits it. There are things so obvious there doesn’t have to be a case on them. And I completely agree that finding qualified immunity in such a case serves only to invite government officials to engage in lawlessness.

            Perhaps the Supreme Court will take this case. This might be another case for a Gorsuch liberal ruling.

            1. “Nor is the idea that the 4th Amendment prohibits it.”

              The court disagreed with you on this point.

              ” I completely agree that finding qualified immunity in such a case serves only to invite government officials to engage in lawlessness.”

              they aren’t liable to the plaintiffs, but they are liable to the city (in civil court) and the state (in criminal court). Guess we’ll have to rely on those restraining factors.

      3. Pretty much. It’s much like the leftists who say that their ascent is “inevitable.” It’s not an argument, but a taunt.

  3. The Mississippi redistricting case shows what a joke redistricting challenges are. Mississippi draws a majority-black district but doesn’t pack it with blacks, submits it to the Obama DOJ for preclearance, gets it approved, and yet somehow it’s still improper.

    1. You don’t understand! They didn’t elect a black person! It MUST be racism. All those black-hating blacks in that district must be to blame. The only solution is to add exactly 5% more blacks!

      Seriously, though. Their justification is that the blacks are poorer, less educated, and have higher crime rates. Therefore, they choose not to vote as much. This cannot be allowed, so they’re using the voting rates as a modifier to produce a district that is not only major-minority resident, it is majority-minority voter.
      Go forbid voter participation rates change… the state may find itself back in court next year for packing the district with too many blacks, if the 2020 elections prompt a lot of enthusiasm.

      And that’s just idiocy.

    2. It’s a lengthy opinion but at least take the time to read it before condemning it. The argument was that it was the barest- of-majority black districts (50.8%) but due to white bloc voting and black turnout issues (found at trial to involve transportation issues) the scales, pretty much balanced before, were tipped.

      1. I did. Nothing you pointed out has anything to do with what I said. Did the Obama DOJ, the Obama DOJ, not the Trump DOJ, approve the district boundaries? Why yes, yes they did.

        1. So, if Obama did it it must be good?

          Interesting point-of-view, and not what I’d’ve expected of you.

          1. I think the position taken is that is the Obama DOJ passed on the district and the District is somehow racist, then either the Obama DOJ is racist (which seems likely, but should have affected things the other way) or idiotic (which also seems likely). Still, the district was proposed under a Progressive Left Black President, and his administration said it was fine.

            Just how many bites at the apple do the decriers of racism get, anyway?

            1. ” the district was proposed under a Progressive Left Black President, and his administration said it was fine.”

              That would be more relevant if Presidents, Progressive Left Black ones or otherwise, proposed Congressional districts. Neither do they approve proposed Congressional districts. There’s at least a couple of layers of bureaucracy in between.

              It was a mistake to approve the district (saith the court). Unless you take the position that Obama, or progressives, or black presidents never make mistakes, the fact that the Obama administration approved it by mistake establishes… nothing beyond the fact that they made a mistake.

              1. Stop using logic and reasoning!

                1. He’d have to start first.

              2. “That would be more relevant if Presidents, Progressive Left Black ones or otherwise, proposed Congressional districts.”

                C. S. P. Schofield very clearly did not say that presidents proposed congressional districts.

                “Neither do they approve proposed Congressional districts. There’s at least a couple of layers of bureaucracy in between.”

                C. S. P. Schofield very clearly did say that Obama’s administration, not Obama personally, approved the district.

                But I guess this means that all those liberals need to stop whining about all of the things that Trump is doing, right?

                “It was a mistake to approve the district (saith the court). Unless you take the position that Obama, or progressives, or black presidents never make mistakes, the fact that the Obama administration approved it by mistake establishes… nothing beyond the fact that they made a mistake.”

                What’s more likely, that the experienced civil rights attorneys in the Obama DOJ who reviewed districts as part of their professional responsibilities made a mistake or that two judges did? Where’s the deference to administrative expertise?

                1. “But I guess this means that all those liberals need to stop whining about all of the things that Trump is doing, right?”

                  Pretty much. I mean, if Trump were actually doing anything other than weather forecasts.

      2. So what? The argument still assumes that a black can only rationally elect a black and a white can only rationally elect a white. That in itself is bogus.

        1. You’re the one assuming that. If it’s bogus, stop doing it.

          1. No, the court is, and you liberals are.

            1. Excellent demonstration of 3rd-grade arguing.

  4. How, precisely, do you determine who are the “African American-preferred candidates” other than by looking at who they voted for? If the majority of the district’s voters are African American, isn’t it pretty much true by definition that the people losing those election weren’t the preferred candidates?

    1. And now I see Toranth’s answer above. Yes, it is idiocy. But I suppose I’m slightly heartened to hear that they at least took the trouble to come with a pretextual justification for their idiocy.

      1. No, on further reflection I’m not even going to give them that much cover.

        The decision to not vote is still a decision. Assuming that those people’s choices must be “adjusted” away is to deny their agency.

        I can see a reasonable argument between districting based on residents vs eligible voters. There is no reasonable argument to base it on expected voter participation.

    2. “How, precisely, do you determine who are the “African American-preferred candidates” other than by looking at who they voted for?”

      You’re assuming that the sets “African-American citizens” and “African-American voters” are identical. They’re not. Since some African-Americans can’t vote (recently moved, underage, insufficient ID for whatever reason) you can’t just look at who they voted for to detect their preference.

      1. While true in theory, none of those factors are relevant to this particular case since none of them would even theoretically be redressed by the plaintiff’s desired changes.

        Note, by the way, that a fraction of non-African American’s will be unable to vote for exactly the same reasons. Being underage is not a function of race.

        1. “While true in theory, none of those factors are relevant to this particular case since none of them would even theoretically be redressed by the plaintiff’s desired changes.”

          Nice brush-off. “Sure, it’s true, but I don’t care.”

          “a fraction of non-African American’s will be unable to vote for exactly the same reasons. Being underage is not a function of race.”

          Duh. But… uh… how is that relevant to determining what the African-American community wants?

          I mean, if you wanted to attack me for not offering a better objective measurement, that would have been fair, and, honestly, is what I expected. But pointing out that other things aren’t measured by your proposed measurement system is, well, arguing my side of the argument.
          Since we’re now both arguing the same side, I guess that point is settled.

          1. Whether I care is irrelevant. The Court doesn’t care. And based on their briefs, neither do the plaintiffs. So the only thing I’m brushing off is your attempt to divert the discussion from the relevant legal issues to your own personal tangent.

            The article above talked about “African-American preferred candidates” as somehow distinct from those who actually got voted for. The only relevant argument was over the participation rates of eligible voters, not over the opinions of non-voters.

            My challenge, which you seem to be carefully avoiding, is that neither party nor the Court presented good arguments for the basis of their claims to know what eligible African Americans in that district want better than the results of the actual votes.

            1. “Whether I care is irrelevant”

              Agreed. Another point settled!

              “My challenge, which you seem to be carefully avoiding, is that neither party nor the Court presented good arguments for the basis of their claims to know what eligible African Americans in that district want better than the results of the actual votes”

              I didn’t claim to have a better option. I just pointed out why yours doesn’t work.

  5. Doesn’t the court’s abortion jurisprudence create the same sort of discrimination between fathers and mothers as the one the 3rd Circuit complains of? There too, only mothers have a choice about whether to pass on citizenship to their children. Fathers get no choice.

    1. ” Fathers get no choice.”

      Perhaps they should exert more choice in who they leave their reproductive materials inside.

      1. “Perhaps they should exert more choice in who they leave their reproductive materials inside.”

        So you’re for equal choice for both sexes?

        The father can choose not to inject his material, the mother can choose not to allow people to inject their material into here, everybody chooses?

        1. “So you’re for equal choice for both sexes? ”

          Equal choice in getting to know the person before you decide to combine DNA with them, yeah.

    2. Considering the fact that these non-citizens having babies overseas have no legal claim on Citizenship for them at all; 96% of all births world-wide fit in this category.

    3. Abortion “rights” are not about anything other than bringing women up and bringing men down. It’s that simple.

      1. That’s not true. There’s a substantial eugenics argument as well.

        Why do you think the pro-abortion crowd always brings up poverty and environment when discussing abortion? They don’t want more poor babies (particularly poor black babies).

        1. Notorious RBG concurs.

  6. I had no idea that the New Mexico Supreme Court doesn’t have to recognize statutory evidence privileges.

    “This Court determines whether and to what extent an evidentiary privilege should be permitted to “interfere with the orderly and effective administration of justice.” See Ammerman v. Hubbard Broad., Inc., 1976-NMSC-031, ¶¶ 7, 17, 89 N.M. 307, 551 P.2d 1354 (internal quotation marks and citation omitted). For this reason, the existence of NMSA 1978, Section 38-6-6 (1973) has little bearing upon whether New Mexico courts should continue to recognize the spousal communication privilege.”

    Are any other states like this?

  7. The flap over pseudo-meat products reminds me of the similar flap over non-dairy ‘milk’ products; specifically Almond Milk. When that first came to my attention, I looked up ‘Almond Milk’ (admittedly on Wikipedia, but still…) and was informed that Almond Milk, named as such, has a history going back to the middle ages.

    I have to hope that the judges asked to rule on that nonsense tell the Dairy industry shills that they are several hundred years too late.

    1. Using “burgers” to describe a product made with 0% beef should be evaluated along the same lines as nominative fair use in trademark. (That is, if they’re claiming it’s a substitute for ground beef, and not claiming that it IS ground beef, that’s helping the consumer to know what the product’s intended use is, not attempting to deceive them.)

  8. “Man is barred from purchasing a gun but, because of a lapse in the FBI’s background check system, buys one anyway from a federally licensed firearms dealer. Two months later, the man uses the gun to murder nine people in a Charleston, S.C. church.”

    At first glance one says: “What? Suing the USG for failure to execute a NICS check instead of suing the FFL Gun Shop or Gun Manufacturer? Hooray!” But then, see the Brady Center supporting the case, a Red Flag goes up. Their goals are likely two-fold: drive use of a database for NICS that contains arrest, booking reports, pre-trail investigation and other information in NICS reviews, and drive extension of the 3-day default release on a Delay for gun purchases to Indefinite. The former goal adds a NICS database with information of the sort used in states that allow discretionary denial of gun permits above and beyond federal prohibitions. The latter goal would allow an initial delay to flounder and become de facto Denials. Given that NICS has a huge false positive error rate, millions might be wrongly denied. Making Universal such a broken, error-prone system is a really bad option.

    1. “What? Suing the USG for failure to execute a NICS check instead of suing the FFL Gun Shop or Gun Manufacturer? Hooray!”

      The retailer and manufacturer have statutory immunity. The government has sovereign immunity. So, there is no recourse for victim/plaintiff(‘s estate).

      1. Well, they could always sue the person that actually was responsible for the criminal shooting…

        1. They could sue that person, if they didn’t consistently turn out to be judgment-proof, anyway.

          1. Are you suggesting that the responsible party for an act depends on how much money each has?

            If the shooter were rich, then suing him would have been a remedy… but if he’s poor, then someone else suddenly becomes responsible?

            1. “Are you suggesting that the responsible party for an act depends on how much money each has?”

              Um, no. Were you?

      2. Right, that’s what life insurance is for.

        1. Life insurance is for covering health-care expenses related to being shot? How long have you worked in the insurance industry?

  9. Did NM S.Ct. actually abolish the spousal exception? IIUC the government couldn’t force a spouse to testify however the spouse could choose to testify which is what appears to have happened in this case. The ex-wife initially lied but then later after divorce told the truth. The estranged 2nd wife partially learned about it thru 3rd parties, i.e. his parents that would threaten to put him away for life.

    1. There are traditionally two spousal privileges, communications and testimonial. The testimonial privilege allows a current spouse to refuse to testify against their spouse. The communications privilege allows a spouse to prohibit the other spouse from revealing marital communications even after the marriage is over. They explicitly did away with the communications privilege.

  10. obtaining a license to work

    Land of the free.

    1. In ye olden days, you had to serve a years-long apprenticeship to practice a trade. Medical doctors still do, but most other work licensure is considerably shorter.

      1. Yes, guilds were rent-seekers. They still are.

  11. Because Khan set his Facebook privacy settings to “public,” anyone with access to Facebook (including the FBI) could view his comments and photos.

    I love it when people denounce & provide evidence against themselves.

  12. To be (a lot) more accurate on the bar membership/Janus case… the 8th circuit agreed *with the plaintiffs* that it was bound by prior precedent (Knox) and accepted the plaintiffs’ *concession* that the 8th circuit had to grant judgment to the defendants on that claim. The plaintiffs are intentionally losing that claim in order to get to the supreme court as quickly as possible. (Although the 8th circuit points out that the concession may have robbed the courts of the evidentiary record necessary to even consider the claim.)

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