Short Circuit: A Roundup of Recent Federal Court Decisions

SWAT teams, filter teams, and the IRS' asset forfeiture database.

|The Volokh Conspiracy |

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

This week, the Indiana Supreme Court articulated a new test for determining when fines and forfeitures are unconstitutionally excessive—a test that we advocated for and that requires judges to evaluate (among other things) the real-world impact of a fine or forfeiture on the property owner. Huzzah! The decision follows on the heels of a U.S. Supreme Court decision earlier this year finding that the Eighth Amendment's prohibition on excessive fines does indeed apply to state and local governments. Click here for more.

  • IRS Manual: We have a "database" of civil forfeiture information called the "Asset Forfeiture Tracking and Retrieval System." Institute for Justice FOIA request: We'd like that database, please. IRS: Actually, it's not a database, so FOIA doesn't apply, but here are some incomplete and heavily redacted printouts. Trial court: Good enough. D.C. Circuit: Decidedly not good enough. "Absent further evidence to the contrary, it seems safe to say that if AFTRAK is a database, the Institute is entitled to more than has been delivered, very possibly much more." (This is an IJ case.)
  • Under Medicaid's free-choice-of-provider provision, "any individual" eligible for Medicaid has the right to obtain treatment from "any institution" willing and qualified to provide services, and state plans "must" comply with that directive. Can a patient who previously obtained birth control through Planned Parenthood sue in federal court to enforce this right after South Carolina terminates Planned Parenthood's Medicaid enrollment agreement? Fourth Circuit: Absolutely. Congress could have made an exception for providers of abortion services if it wanted to, but it didn't
  • In the course of executing a search warrant on the office of a man the Fourth Circuit identifies only as "Lawyer A"—but whom the Baltimore Sun identifies as a prominent Baltimore defense attorney—IRS agents seize thousands of documents covered by attorney-client privilege and the work-product doctrine. But don't worry! We've established a "filter team" of prosecutors from the same district who will pick out all of the privileged stuff and make sure none of it goes to their colleagues on the prosecution team. Fourth Circuit: That doesn't sound remotely fair.
  • Mother of a special needs student in Dallas public school files a Title IX complaint, alleging the school failed to protect her daughter from a fellow student who raped her in the class bathroom following a previous history of assault. District Court: Sorry, even though you sued under Title IX, you could have sued under a different law that requires you to exhaust your administrative remedies. Administrative hearing officer: Sorry, but now it's too late to exhaust your administrative remedies. District court: Well then, I guess you're just out of luck. Fifth Circuit: That is not how Title IX works. Case un-dismissed.
  • If a union has a problem with an employer and goes on strike, federal labor law prohibits it from encouraging "secondary boycotts," that is, strikes by employees at other businesses in an effort to increase the original union's leverage with the employer. Which sounds an awful lot like a restriction on speech with a particular content. A First Amendment violation? Ninth Circuit: Modern First Amendment precedent might suggest so, but we'll stick with the precedent from 1951.
  • Woman taxis home from a bar, incurring a $16.70 cab fare. Her credit card declined, cabbie calls the cops. Woman offers to go into her apartment to get cash, after which Newport Beach, Calif. cops barge in after her, handcuff her, and arrest her. Ninth Circuit: No qualified immunity for the arrest. The police lacked even arguable probable cause that the woman committed a crime.
  • The federal government gives out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from cities—like Los Angeles—that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Ninth Circuit (brushing off its dictionaries and canons of construction): Congress has never delegated the authority to the AG to place blanket conditions like this on the receipt of grants. (Third time is not a charm for the AG.)
  • Allegation: Woman gets a restraining order against her abusive husband. With police escort, he returns to their Cheyenne, Wyo. home to pick up some of his things. Afraid, the woman steps behind the officer, brushing the officer as she moves. The officer yanks her arm, hits her, arrests her, gets her charged with a felony he knows to be bogus, and gives false testimony against her. (She's acquitted after spending several months in jail.) Excessive force? Illegal detention? Malicious prosecution? The Tenth Circuit says no. Qualified immunity.
  • A criminal on the lam holes up in a Greenwood Village, Colo. family's home. What follows is a 19-hour standoff in which police fired tear gas grenades into the home, smashed down the door, set off explosives to open lines of sight, and ultimately smashed down the walls with an armored vehicle so that a SWAT team could apprehend the fugitive. Police take him alive, but the house is rendered completely uninhabitable. City: Sorry we destroyed your home; here's $5k for temporary living expenses. Tenth Circuit: And the city didn't even need to give you that much; this exercise of the police power is not a taking that requires just compensation.
  • Fugitive flees a Pensacola, Fla. motel with police in hot pursuit. When he gets away, they search his motel room (on the off chance he came back). Then, after checkout time, they search his room again. The first search reveals a gun, the second, drugs. Eleventh Circuit: No suppressing the evidence. The fugitive can challenge the first search, but he loses because it was reasonable. And no way to challenge the search after checkout time. It wasn't his room anymore. [An interesting concurrence features the Circuits' first use of "rope-a-dope."]
  • Did the Democratic National Committee tilt the 2016 primary in favor of Hillary Clinton over Bernie Sanders? Eleventh Circuit: We can't feel the Bern when the complaint's missing key facts. Dismissal affirmed.
  • Police officer goes door to door, questioning Glen Burnie, Md. residents about a spate of burglaries. Residents at one home don't immediately answer, but their dog—a rigorously trained Chesapeake Bay Retriever named Vern—nudges out the screen door. The officer shoots Vern twice, killing him. Jury awards owner $1.3 mil in tort damages, which the trial court reduces to $207k. Maryland appeals court: Actually, make that $200K. (via @MDAppeal)
  • Man pleads guilty to a bevy of charges brought by Clayton County, Ga. prosecutors arising from incident that began in Clayton County and ended in Fulton County. As part of the deal, more serious charges against him are abandoned. Can prosecutors in Fulton County subsequently re-indict him on the more serious charges? Georgia appeals court: No. (Via @ASFleischman)
  • And in en banc news, the Seventh Circuit will not reconsider its decision barring Indiana from enforcing a law that bars abortions based on race, gender, or diagnosis of a disability.

Lynn Schofield, an African-style hair braider, once owned multiple salons, but she's been forced to shut down all but one. Even though demand for braiding services is through the roof and there is no shortage of capable braiders seeking work, Schofield can't hire enough braiders because the Louisiana State Board of Cosmetology imposes irrational licensing requirements—requirements that the Louisiana State Legislature never authorized—like 500 hours of unnecessary and irrelevant training. This week, a judge in Baton Rouge allowed Schofield's lawsuit challenging the requirements on economic liberty and separation-of-powers grounds to proceed. Click here to learn more.

NEXT: California NIMBYs Sue To Stop In-N-Out Burger From Coming to Their Town

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  1. “The officer yanks her arm, hits her, arrests her, gets her charged with a felony he knows to be bogus, and gives false testimony against her. (She’s acquitted after spending several months in jail.) Excessive force? Illegal detention? Malicious prosecution? The Tenth Circuit says no. Qualified immunity.”

    To be fair, how could he possibly have been on notice that he wasn’t supposed to commit assault and battery, file false charges, or commit perjury? It’s not exactly intuitive. [/sarc]

    1. Self defense. If the brushing had been of a female officer by a male (real or imagined), it would have been rape.

    2. I can’t even really blame the 10th Circuit, because the Supreme Court created this idiotic test:

      “More specifically, the district court noted that Bailey failed to cite a case in which this court or the Supreme Court has held that the Fourth Amendment bars an officer from “grabbing [an individual’s] wrist and knocking [him or] her down after feeling [the individual] touch [the officer] from behind during the course of overseeing a
      tense domestic matter.” R. vol. 1, 188.”

      The problem is this:

      Likewise, because Twomey’s “underlying intent or motivation” is irrelevant to the Fourth Amendment inquiry, Graham, 490 U.S. at 397, we also decline to consider Bailey’s allegation that he later “made up the fact that the [Bailey] intentionally grabbed his gun in order to criminalize [her] conduct to protect [Twomey] against a
      potential excessive[-]force claim,” Aplt. Br. 25 n.5; cf. Graham, 490 U.S. at 397 (explaining that “officer’s evil intentions will not make a Fourth Amendment violation out of” his or her objectively reasonable conduct). Instead, like the district court, we set aside Twomey’s allegedly false allegation that Bailey attempted to disarm him and ask whether arguable probable cause nevertheless existed to arrest Bailey for “admittedly touch[ing]” Twomey “from behind during the ‘standby.’” App. vol. 1, 191 n.4. For the reasons discussed below, we conclude that it did”

      You can’t have it both ways. If the cop intentionally lied, he did so because he knew his original conduct was a violation of the plaintiff’s constitutional rights, and thus was on notice.

      1. The first quote stood out to me as well, but this one I feel is maybe worse:

        Thus, in determining whether the defendants were entitled to qualified immunity on Bailey’s malicious-prosecution claim, the district court (1) set aside Twomey’s allegedly false statement that “he felt [Bailey] grab his gun”; (2) asked whether Bailey demonstrated it was “clearly established” that the remaining facts in the affidavit were insufficient to create probable cause; and (3) stated that, as it previously concluded in dismissing Bailey’s illegal-detention claim, Bailey failed to make this showing. In other words, the district court appears to have ruled that the defendants were entitled to qualified immunity on Bailey’s malicious-prosecution claim because—even after removing Twomey’s allegedly false statement from the affidavit—the affidavit’s remaining contents were sufficient to create arguable probable cause.

        In other words, even though the entire prosecution was based on a lie, it was possible that there may have been a prosecution without the lie.

        Wow.

        1. It’s worse than that.

          It’s possible a judge might have issued an arrest warrant because there was arguably probably cause. But he didn’t seek a warrant, and no judge ever had a chance to determine if the arguable probable cause could grow into actual probably cause.

          So the 10th Circuit says that the standard is that it’s ok to falsely charge someone and lie during trial, if it’s at least theoretically possible that you might have been able to convince some judge somewhere to issue a warrant without your lies.

          Judge Nancy L. Moritz of the 10th Circuit should find a woodchipper, because this is the sort of ruling that winds up in a new Declaration of Independence, “and for the Judge Sanctioned Assaults on the People by Agents of the State.”

          1. Under Wyo. R. Crim. P. 5(a), when the police make a warrantless arrest, a judicial officer needs to make a probable cause finding based on sworn statements within 72 hours. So I don’t think it’s correct to say that “no judge ever had a chance to determine if the arguable probable cause could grow into actual probabl[e] cause.”

          2. Moritz was appointed by Obama. Enough said.

      2. RWH or anyone,
        Regarding your 1st quote, there’s something very basic I’m not getting: Above and beyond the apparently-idiotic level of specificity required of a precedent in order to overcome QI (which AFAICT created in one very fell swoop an injustice factory *and* the assurance that its productivity could be ramped down only very gradually), which level of court (if any) is not thus constrained? And if the answer is “none”, how does the injustice factory’s productivity *ever* decrease?

        1. By the Supreme Court overturning its precedent.

  2. It appears that the Tenth Circuit is made up entirely of ex police. How else to explain these rulings.

  3. “Fourth Circuit: Absolutely. Congress could have made an exception for providers of abortion services if it wanted to, but it didn’t”

    He who pays the piper calls the tune.

    Rightfully so despite the odious Planned “Parenthood” being involved.

  4. Destroy the house: No liability.

    Shoot the dog: $200K liability.

    What’s the liability for shooting up a doghouse?

    1. Obviously the sort of complex case that needs the attention of the Supremes. 🙂

    2. Given the logic behind these decisions, probably 5-10 years in prison for the owner.

    3. 200K/0 = $Infinity.

      1. You have that backwards because you’re missing a postulate. When dealing with the state $200/0 = $0 because FYTW.

      2. You suck at math. Of you added lim x->0 on bottom youd be use to competent. But you suck at math.

        1. You also suck at math. Division is the wrong operation, the problem as stated implies subtraction. The correct answer lies in the continuum between 0 and 200K. The unknown constant is how much to subtract from 200K to arrive at the correct answer.

  5. It continues to baffle me why there’s not more pushback against these egregiously awful qualified immunity decisions. “Oh, the officer bashed your skull in with a 9-iron, but our case law only establishes that cops can’t bash your head in with a sand wedge. Qualified immunity!”

    1. If officers can’t be expected to know they should refrain from such conduct, where’s the justice in holding the typical schmuck who’s a criminal defendant liable for roughing someone up?

    2. Because the mess was created by SCOTUS.

      SCOTUS precedent literally mandates that when considering if the law is established for QI purposes that given conduct violates someones rights, the right at issue must be defined as narrowly as practicable.

      1. While true, what I don’t understand is how they still get QI when the actions as alleged also themselves constitute crimes.

        How more clearly established can something be than to have the legislature make it a criminal act? If it were just a tort that’s be one thing, but when the acts could lead to criminal charges (and would if the perpetrator wasn’t an agent of the state) how can it not be clearly established?

        This is where the outgrowth of QI from the originally claimed purpose diverges drastically. At the founding a sheriff could be charged with the tort of kidnapping for arresting someone; but if they had a warrant they were protected from that. QI was originally established to extent this paradigm to cover 18 USC 1983 because the Court determined that Congress hadn’t explicitly thrown out that defense, but that defense never protected against criminal acts and only started to in the 20th century (prior to that, as today, prosecutors tended not to charge their own, but there were plenty of examples of US Marshall’s charged in the 1800s, Wyatt Earp in particular is known for that).

        1. ” what I don’t understand is how they still get QI when the actions as alleged also themselves constitute crimes. ”

          Criminal acts aren’t necessarily a violation of Constitutional rights.

        2. You fail to comprehend how narrow they can get when defining the right at issue.

          You were assaulted by a cop on a Wednesday. Sorry, we only have precedent for cops assaulting people on Thursdays, QI.

          1. That’s what bothers me. Qualified immunity was designed for gray areas, so police could act in novel and uncertain matters without being overly concerned about whether their actions were constitutional.

            However, the precedents are defined so narrowly that no police officer could possibly know of them. It could take hours of searching an organized list to know whether something was a violation of rights. It could take days to exhaustively determine that it was not. That defeats the entire point of Qualified Immunity.

            We need to restart the whole concept and base it around the “reasonable person” standard which has held in common law for centuries.

    3. You, sir, are an idiot!

      Everyone knows neither a 9-iron nor a sand wedge is proper for bashing in a skull–this is why Michael Skakel went to jail for using a 6-iron.

      A putter is the proper club.

  6. What’s even more striking to me about the Tenth Circuit officer touching decision is that arguably the biggest injustice, a months long pretrial incarceration, isn’t even remarked upon or the basis of some sort of legal challenge.

    1. The criminal charges were the basis of the malicious prosecution claim.

      1. With the 10th Circuit also preposterously claiming that since she wasn’t convicted there can be no harm from the prosecution itself. That they were merely upholding a prior preposterous case is no defense to that, unless they were themselves to call on the en bank circuit to address and overturn.

        1. That’s not actually how they resolved the malicious prosecution claim (indeed, since prevailing at trial is an element of a malicious prosecution claim, it really wouldn’t make much sense for them to have done so). Regardless, I was correcting the suggestion that “arguably the biggest injustice, a months long pretrial incarceration, isn’t even remarked upon or the basis of some sort of legal challenge.”

          1. Except the length of incarceration doesn’t affect the viability of a malicious prosecution claim. A defendant can be out on bond and still prevail. The length of incarceration may be a measure of damages at a later point on that claim.

            But really, the length of the incarceration would constitute an injustice regardless of whether the plaintiff in the case actually was properly charged or in fact guilty.

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