Short Circuit: A Roundup of Recent Federal Court Decisions

Unfit grandparents, hours at the DMV, a Cheerleading Constitution.

|The Volokh Conspiracy |

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

New on the Short Circuit podcast: SWAT team destroys an innocent family's house, surveillance cameras on private property, and adverse possession. Click here for Apple Podcasts.

  • Does the president have absolute immunity from being investigated for crimes not committed while in office? The Second Circuit says no; President Trump cannot block a subpoena requiring an accounting firm to turn over his tax returns as part of a New York grand jury investigation into potential hush money payments to former paramours.
  • Seeking to raise revenue while curtailing smoking, New York imposes hefty taxes on cigarettes, leading to a thriving black market. So how much is UPS on the hook for after it transported untaxed cigarettes from Native American reservations to customers in New York, in violation of an earlier settlement agreement? District Court: $246 million. Second Circuit: Too high by about $150 million.
  • Pennsylvania school officials investigate a licensed teacher, close the case without imposing any discipline—but sternly warn the teacher that both the investigation and its outcome are a secret and that he would commit a misdemeanor by telling anybody about them. Can he get a preliminary injunction under the First Amendment? The Third Circuit says maybe, remanding the case back to the district court for a closer look.
  • Man sells $100 of pot to informant; police raid his Myrtle Beach, S.C. home, shoot at him 29 times, leaving him paralyzed. Police say—falsely—that they knocked and announced before battering down his door (as their warrant required them to do) and that he shot first. Fourth Circuit: A jury will decide if officers used excessive force. This isn't one of those "bad guesses in gray areas" types of situations where qualified immunity is appropriate. (More from Radley Balko.)
  • For years, a group of Baltimore police officers rob and extort the city's residents, pocketing cash, drugs (which they then resold), and jewelry. While most of the officers plead guilty to racketeering, two go to trial and are convicted and sentenced to 18 years. (Sentences for all the officers range from seven to 25 years.) Fourth Circuit: The convictions and sentences are "just and necessary." (Click here for some high quality investigative journalism.)
  • Head varsity cheerleader at San Benito, Tex. high school is dismissed from the team after the school discovers she used profanity and sexual innuendo on social media, a violation of the school's "Cheerleading Constitution." Fifth Circuit: Dismissing her from an extracurricular activity for off-campus speech does not violate the U.S. Constitution. (Come for the First Amendment analysis, stay for judicial explanation of, among other things, what "lmao" stands for.)
  • Garland, Tex. vocational school is forced to shut down after the feds seize all its operating funds and initiate civil forfeiture action (without charging anyone with a crime). The school files counterclaims alleging the seizure violates the Fourth and Fifth Amendments. District court: The forfeiture is proceeding against the property not the school, and property cannot file counterclaims. Fifth Circuit (August 2019): No need to rule on that; the feds are immune from suits seeking damages. Fifth Circuit (this week): Contrary to the district court (and the First and Sixth Circuits), one can indeed file counterclaims in forfeiture proceedings. But the feds are still from immune suits for damages. (Other remedies may be fair game.)
  • Charter School Pro-Tip: If you have appeared on TV show America's Supernanny expressing support for corporal punishment, you may have your application to build a charter school in Louisiana denied, and the Fifth Circuit will hold that the school superintendent who recommended the denial has qualified immunity.
  • "Have you ever waited hours in line at the DMV, only to be told once you got to the front that you didn't have the right paperwork?" So writes Judge Thapar of the Sixth Circuit, finding that a federal inmate in Ohio did indeed have the right paperwork to sue over a surgery that allegedly left him permanently disabled. (That is, a state rule that requires an affidavit from a medical professional at the outset of a medical negligence suit doesn't apply to federal cases.)
  • Concerned that their daughter is an unfit parent and seeking to persuade her not to move an hour away from them, couple threaten to publish nude photos of her. This does not work. So they conspire with Lawrence County, Ill. law enforcement to have daughter arrested on manufactured charges and take custody of their granddaughter, a toddler, while the daughter is in jail. Seventh Circuit: No need to disturb jury award of $970k that the couple must pay the daughter. (Law enforcement settled with her for $75k.)
  • In 2018, the Supreme Court reversed decades-old precedent permitting labor unions to deduct fees from non-union members' paychecks. Can non-members who paid the fees under protest recoup the fees? The Seventh Circuit says no; the union relied in good faith on precedent when it collected the fees.
  • Arkansas bans begging in a harassing manner. Does that give the state too much leeway to harass non-harassing panhandlers? District Court: The law almost certainly violates the First Amendment; no enforcing it while the case proceeds. Arkansas: The preliminary injunction should only apply to the two plaintiffs. Eighth Circuit: Nope. It would be ridiculous to allow enforcement of an unconstitutional law. Dissent: The law is probably unconstitutional, but everyone else who wants protection should still have to come to court to get it.
  • After an altercation with two off-duty cops (moonlighting as security) in the lobby of a Minneapolis nightclub, NFL player is again accosted by the cops outside. The lawmen break his phone—which he's using to film the encounter—tase him twice and arrest him for trespass and disorderly conduct. He's acquitted after a week-long trial, and promptly sues. Eighth Circuit: The officers get qualified immunity for the footballer's false arrest claim, but not for the claim that they unreasonably tased him. Partial dissent: The false arrest claim should proceed too.
  • Missouri's lobbyist registration laws cannot constitutionally apply to someone who talks about political issues with lawmakers but who neither spends money nor receives money as part of that endeavor. So says a majority of the Eighth Circuit, sitting en banc.
  • FBI agent uses computer magic to determine that someone in Apartment 243 was using Apartment 242's wireless router to distribute child pornography. And that wizardry raises no Fourth Amendment concerns, says the Ninth Circuit. "[S]ociety is not prepared to recognize as reasonable an expectation of privacy predicated on unauthorized use of a third-party's internet access."
  • State horseracing officials strip $1 mil prize from winner of 2008 Ruidoso Downs, N.M. race after positive test for caffeine. But the prize is reinstated after a disciplinary panel concludes that the amount was negligible and likely attributable to "caffeine contamination of the equine environment." Did the owners of the second-place horse have a procedural due process right to participate in the panel's proceedings? The Tenth Circuit says no.
  • High school football players in Charleston, S.C. have an "innocent ritual" in which they make monkey noises while smashing a watermelon that they have named after a formerly segregated African-American school in the community. Upon learning of this ritual, a local paper describes the players as "racist douchebags." Actionable defamation? S.C. Court of Appeals: Nope, protected opinion. (Ed.: Alternatively, truth is an absolute defense to defamation.) (via @adamsteinbaugh.)
  • Man sentenced to life without parole dies, is resuscitated (allegedly in violation of his do-not-resuscitate order). Man: So now I should be released immediately. I completed my sentence. Iowa appeals court: No.
  • An in en banc news, the Fifth Circuit will reconsider its decision holding that the Indian Child Welfare Act, which prioritizes Indian families over non-Indian families in adoption proceedings for Indian children, does not violate equal protection.

Friends, Colorado law allows private developers to form "special districts" where they can exercise eminent domain to seize private property from unwilling sellers without oversight from any bona fide elected official. And earlier this year, the Colorado Supreme Court upheld such a taking outside the town of Parker so the parcel in question can be used as a public road through the developer's development. This week, IJ asked the U.S. Supreme Court to weigh in and resolve the growing split among state supreme courts on the question of whether any incidental public benefit from a private development project qualifies as a "public use." Click here to read more.

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  1. “Appellants opposed Jones Street Publishers’ motion for summary judgment, arguing Jones Street Publishers acted with actual malice by “labeling” the students and coach “as racist douchebags without any investigation, without any evidence, without anything to come to that conclusion . . . .””

    So brave.

    It might be worth noting that the case apparently involved only the one team and only for the one season. It doesn’t seem to have been a long term thing, and the school district came down pretty hard (they fired the coach) after they learned about it.

    1. Even if poorly investigated, it’s clearly protected opinion.

  2. Head varsity cheerleader at San Benito, Tex. high school is dismissed from the team after the school discovers she used profanity and sexual innuendo on social media, a violation of the school’s “Cheerleading Constitution.” Fifth Circuit: Dismissing her from an extracurricular activity for off-campus speech does not violate the U.S. Constitution. (Come for the First Amendment analysis, stay for judicial explanation of, among other things, what “lmao” stands for.)

    Whatever you say about the First Amendment analysis, the school officials here massively overreacted. I read this case expecting to find some ridiculously over the top vulgar or threatening statements. What I found instead was ordinary teenage girl speak. No way should they have kicked her off for this.

    1. The closest she got to sexual innuendo is an affirmative reply to someone (allegedly) asking if she had had sex with a specific person.

      The profanity is just garden-variety swearing.

    2. ‘she used profanity and sexual innuendo on social media, a violation of the school’s “Cheerleading Constitution.”’

      Sigh. It almost makes one long for the good old days when popular kids like cheerleaders could make their own rules at school.

  3. After an altercation with two off-duty cops (moonlighting as security) in the lobby of a Minneapolis nightclub, NFL player is again accosted by the cops outside. The lawmen break his phone—which he’s using to film the encounter—tase him twice and arrest him for trespass and disorderly conduct. He’s acquitted after a week-long trial, and promptly sues. Eighth Circuit: The officers get qualified immunity for the footballer’s false arrest claim, but not for the claim that they unreasonably tased him. Partial dissent: The false arrest claim should proceed too.

    On this one, there should be a (perhaps rebuttable) legal presumption of misconduct any time a police officer takes or damages a recording device during an encounter with a civilian.

    1. And an element of the rebuttal should be proof that there actually was a good and constitutional reason to take or damage the device. Not just proof that it recorded no misconduct.

      The taking and/or damage is itself misconduct unless there’s some justification for it, which under most circumstances is hard to imagine.

      1. Misconduct?

        Why not theft, or destruction of property?

        1. Because the cops are shielded from those charges when it occurs in the course of their duties, and they’ve got pretty broad leeway when it comes to what counts.

      2. I think this would be a fantastic idea. If we ever manage to get some civil libertarians into the relevant offices, perhaps you could attach this condition (and others) to the federal forfeiture participation programs. The local cops will jump through any hoops to be allowed to steal with impunity.

    2. Anyway, this shows why if you have any expectation at all of needing to record police misconduct, you need one of those apps that uploads straight to a remote server, instead of storing the video locally.

  4. Resuscitated against what the prisoner wanted? Why? I’d think that would be a win-win-win.

    I like that prisoner’s moxie though…..

    1. Who knows since the link is dead, but it’s possible a doctor on duty was informed who didn’t know and felt obligated to do something.

      But I also appreciate the argument. I really wish I could see the court’s response.

      1. Link worked for me. They quote the trial court:

        Petitioner asserts that he “died” on March 30, 2015 and as a result of such “death” he has now served the life sentence and should be released from custody. The court finds this assertion unpersuasive and without merit. Nothing in the record supports petitioner’s claims. The petitioner’s filing of these proceedings in itself confirms the petitioner’s current status as living.

        They discuss and dismiss some procedural stuff. Then:

        In essence, Schreiber claims that he “died” and was resuscitated by medical staff in 2015 against his wishes, thereby completing his sentence. He asserts he was sentenced to life without parole, “but not to Life plus one day.” Therefore, he is being held in violation of his rights under the Due Process Clause and the Fifth and Fourteenth Amendments to the United States Constitution. We do not find his argument persuasive. He cites no case law that supports his position, and Iowa Code section 902.1 directs the district court to commit defendants guilty of class “A” felonies—like Schreiber—“into the custody of the director of the Iowa department of corrections for the rest of the defendant’s life.” Iowa Code § 902.1(1) (emphasis added). Because chapter 902 does not define “life,” we give that term its plain meaning. State v. Hearn, 797 N.W.2d 577, 583 (Iowa 2011). “[O]ur primary goal is to give effect to the intent of the legislature.” State v. Anderson, 782 N.W.2d 155, 158 (Iowa 2010).

        The plain reading of the statute is that a defendant convicted of a class “A” felony must spend the rest of their natural life in prison, regardless of how long that period of time ends up being or any events occurring before the defendant’s6 life ends. We do not believe the legislature intended this provision, which defines the sentences for the most serious class of felonies under Iowa law 2 and imposes its “harshest penalty,” State v. Oliver, 812 N.W.2d 636, 645 (Iowa 2012), to set criminal defendants free whenever medical procedures during their incarceration lead to their resuscitation by medical professionals. See State v. Louisell, 865 N.W.2d 590, 598 & n.6 (Iowa 2015) (noting “life in prison is the intended punishment for” class “A” felonies and “[l]esser offenses are notably punished less severely”). We conclude the correct reading of section 902.1(1) requires Schreiber to stay in prison for the rest of his natural life, regardless of whether he was resuscitated against his wishes in 2015.

        No interesting remarks. Quite disappointing.

        1. spend the rest of their natural life in prison

          If he died and was resuscitated then he is alive, but is he naturally alive?

          1. Mostly!

            1. He was only ever mostly dead. 🙂

          2. He’d have a stronger case if the revival had been accomplished using lightning on the roof of a castle.

          3. He didn’t actually die. We have a habit of calling people “dead” just because their hearts have stopped beating. Makes about as much sense as calling somebody dead because they aren’t breathing; Sure, it eventually leads to you dying, but only if you don’t resume breathing/pumping blood fairly promptly.

            Actually dying dying can take anywhere up to a couple of hours, depending on ambient conditions.

          4. By resurrecting him against his wishes, they forced him to remain alive, and thus in jail, and thus continuing to experience punishment.

            It’s clear the government wronged him. How to make him whole? Make him the ultimate un-whole?

        2. The link works now that I’m not at work. Strange.

          1. Your company firewall blocks legal decision sites? Hmmmm. Seems suspicious, friend.

            1. I was recently employed at one such company. They were engaged in widespread healthcare fraud. There’s a pattern there.

    2. I think they should let him out just for coming up with that argument.

    3. “Schreiber is either alive, in which case he must remain in prison, or he is dead, in which case this appeal is moot.” So the judge seem to have ignored quantum effects. Quantum non meruit, I suppose.

  5. Man sentenced to life without parole dies, is resuscitated (allegedly in violation of his do-not-resuscitate order). Man: So now I should be released immediately. I completed my sentence. Iowa appeals court: No.

    A bit of creative jailhouse lawyering. Nice try but no cigar.

    1. Reminds me of a Willie ‘n Ethyl cartoon. Willie is sitting on an examination table. The doctor says, “The chance of the operation being a success is low, but if it works, you’ll have a 60 foot wingspan!”

      1. Yet another version is the old vaudeville routine:

        Patient: Doctor, after the operation, will I be able to play the piano?

        Surgeon: Sure. I don’t see why not.

        Patient: That’s odd. I can’t play the piano now.

  6. Did the FBI have a warrant to tap into Apt 242’s router? That would end the 4A analysis. You have no reasonable expectation of privacy—or property right—in using a third party’s internet without permission

    1. They searched 242 with a warrant and learned it wasn’t them, then got the residents’ cooperation in busting the neighbor.

      The court felt as you do.

  7. “President Trump cannot block a subpoena requiring an accounting firm to turn over his tax returns as part of a New York grand jury investigation into potential hush money payments to former paramours.”

    I suspect that this whole investigation is just a pretext to get Trump’s tax returns. As soon as they have them, they will be leaked to the press and the investigation forgotten.

    Time will tell.

    1. That’s the feeling I get too. I suspect a lot of people figure if he paid Stormy Daniels a small fortune, it probably wasn’t the first time. But I doubt they have any smoking gun, it’s just a fishing expedition, and his tax returns will either unfortunately leak or lead to further investigations.

    2. I actually don’t have a problem with the tax returns being obtained for legal purposes. It’s the leaking of them I have a problem with.

      1. You mean the leaking that you think will happen.

        1. Want to bet that it will? I’m 90% certain of it.

          1. Possibly. Note that the state of New York has had Trump’s state taxes since forever and has never leaked them. And if his state taxes have ever been actually audited in-depth, then it’s likely that the state also has lots of his federal tax returns. But nary a leak, even though the state is run by Democrats. I admire the integrity of those people (even though I admit that I am really curious about what is in his taxes…what is so awful that he had to lie to voters during the 2016 primaries and general that he’d release them???).

            1. It’s either integrity, or that there wasn’t anything in them that would have made him look particularly bad.

              He didn’t actually lie about releasing them: He said he was under audit, and would release his taxes as soon as the audit was over.

              Has it ended? The Democrats are fond of subjecting their enemies to perpetual audits.

              1. You’re ridiculous, Brett.

                First, there is no reason an audit prevents him from releasing the returns.

                Second, his initial promises to release them said nothing about any audit.

                Third, he changed his excuse later.

                Fourth, some years have surely been closed.

                Fifth, the DNC doesn’t run the IRS, your paranoia notwithstanding. And, to follow up on santamonica811’s comment, if they could extend the audit indefinitely they could leak the returns.

                But hey. You’re a devout worshipper at the Church of Trump, so in your mind He Can Do No Wrong, no matter what.

                1. “Fifth, the DNC doesn’t run the IRS, your paranoia notwithstanding.”

                  The DNC has run the IRS my entire life. Remember the IRS targeting scandal? Numerous right-wing groups and individuals spending the entire Clinton administration under audit?

                  But Trump would be under perpetual audit for a relatively innocent reason: He’s wealthy enough that catching him in some sort of tax error would be very rewarding, so it’s just worth it to the IRS to assign some people to do nothing but constantly scrutinize him.

                  1. Oh stop the bullshit, Brett. The real “scandal” was the tea party groups violating the tax code. And no, I don’t remember “numerous right-wing groups and individuals spending the entire Clinton administration under audit.”

                    It is likely that Trump is frequently audited, because very high income individuals are often audited, and the President and VP always are.

                    And you might address 1-4.

                    1. There’s an easier explanation that doesn’t require addressing 1-4.

                      Trump saw how much people freaked out about Obama’s birth certificate, and how helpful it was when he eventually released it.

                      So he’s planning on doing the same – slowly drag out the expectation so those who care can wail about it, and then release when the timing is convenient to show there’s nothing interesting and puncture the hopes of his detractors. After all, he was in the receiving side of that strategy last time.

                      Or he’s had a not very profitable last few years about would rather that not be clear. You can never rule this one out.

                    2. Yes, Bernard, that’s why the IRS officially apologized for their misdeeds, because they didn’t actually do anything wrong.

                      And why should I care if you have difficulty remembering Democratic offenses?

                    3. Stop the bullshit, Bernie-boy.

                      The IRS admitted to wrongdoing in court. This is a settled matter, with the criminal confessing, admitting that they knew what they were doing was wrong, and agreeing to be punished for that wrongdoing.

                    4. Toranth, this is an example of, “Who controls the past controls the future: who controls the present controls the past.”

                      The left think they control the present well enough to rewrite the past, and end up controlling the future.

                      And they’re not entirely wrong, they dominate the media and academia to a sufficient degree that, if they can’t fully erase the past, they can do a good enough job of writing over it that if you don’t know to be suspicious, you’ll end up swallowing their false history.

                    5. Did they apologize for things that happened under Clinton when, per your allegations, the DNC was running the agency?

                      And you still haven’t addressed 1-4.

                      Or do you buy Beckman’s nonsense that Trump is playing some sort of deep game?

                    6. That’s not a particularly deep game.

                      Postulate: Donald Trump, President or not, is a troll.

                      If you accept this postulate you can predict a comedically large percentage of the Presidents actions, including this one.

                      It doesn’t take any kind of 4-d chess to be a troll, or to predict trollish actions, though it’s interesting that you think me predicting President Trump acting like a 4chan President means that he’s running a deep game. There’s a distinct lack of empathy in that perspective.

                2. Yes the reason is that If they’re released, you’ll have teams of leftists doing the IRS’ work for them, looking for any questionable deduction.

        2. You mean the leaking that will happen.

    3. It could be a pretext. More likely it is precipitated by prosecutorial duty to consider evidence suggesting a lifetime of tax evasion, charity fraud, false statements to authorities, and varied additional misconduct.

      1. You mean all the “tax evasion, charity fraud, false statements to authorities, and varied additional misconduct” that was somehow inexplicably missed during the tax audits conducted by fed and state agencies?

        No, the prosecutor intends to leak them.

        1. Well hey.

          If there’s nothing wrong, or they don’t reveal anything embarrassing about his finances, then what’s the problem?

          1. Really? If he hasn’t committed a crime then what’s the problem with releasing all of his financial information that’s statutorily protected in violation of the law?

            Where did you post your unredacted tax returns again? You may not be President, but you exercise the sovereign franchise with which you can compel violence (even if as only a tiny fraction), so the only difference is one of scale, not kind.

            Oh, you didn’t post your tax returns publicly? You must have something criminal shown in them, after all, “if there’s nothing wrong, or they don’t reveal anything embarrassing about your finances, what’s the problem?”

            Caveat: you could instead be a radical like me and advocate an amendment such that all elected officials have all of their assets seized on election, to be returned to them after their term of service is complete in proportion to the excess budgetary expenditures – if they stayed under budget their fortunes grew, and if they spent more their fortunes shrank. Maybe then we’d had structural encouragement for less graft.

  8. That Seventh Circuit case involves some of the worst parents I’ve ever read about.

    And I really would like to know how/why the parents have nude photos of their daughter (and, it should be clarified, that by “daughter,” I mean the father’s step-daughter, which seems even worse).

    1. I would guess they have a phone plan that sends texts to the account owner or they share a cloud service.

      I don’t know, I didn’t bother reading that one. It’s just sleazy as hell.

      1. I read it now. What absolute assholes.

    2. “I mean the father’s step-daughter, which seems even worse”

      The “daughter” in this case is an adult and married. We aren’t talking about child pornography here.

      “And I really would like to know how/why the parents have nude photos of their daughter”

      I wouldn’t bet that they do.

      This whole mess starts with a dispute between the parents and daughter over the man she married.

      There were two blackmail threats against the daughter (trying to get her to leave her fiance), the nude photos and firing her from her job at a newspaper owned by the parents.

      The Parents followed through with the threat to fire their daughter, but not on the threat to publish the nude photos, possibly because they don’t exist.

      1. “The “daughter” in this case is an adult and married. We aren’t talking about child pornography here.”

        One, nobody claimed it was. Two, you don’t actually know that. If she was a minor on their phone plan and she sexted anybody, they had access to that. There’s nothing that says when the images were created, and the way the court phrased it makes me believe that there were photos, or at least that they and Jade believed so.

        I doubt that the reason they didn’t go through with it is because there wasn’t anything, but because publishing her nude photographs in their newspaper without her consent would be a very bad look for them, if not illegal down the line (Illinois passed a revenge porn law one month after this affair that would go into effect the next year). Even if it weren’t illegal, numerous courts have found privacy law violations. For a newspaper, it would also be a clear-cut copyright violation (I hope to God they didn’t take the pictures of her). It also clearly wasn’t effective blackmail – if Jade didn’t care they wouldn’t gain anything publishing them while it could be potentially very costly.

    3. It’s actually pretty common to have nude photos of your children. I’ve got one of my son when he was only 2 minutes old! Not a stitch on him, either.

      1. Child pornographer!

        Funny enough I had my wife’s absurdly expensive camera (I think the body was $2000 and lenses were ~$500 each, but that’s her hobby) in the delivery room and never used it. Pushing out our daughter was long and exhausting, and then I had my little Tyrant while she worked on our son, so the camera never got picked up.

        Sadly, I was to learn over the following weeks and months that I’d named Tyrant correctly….

        1. Yeah, I brought a good camera, too, and forgot it in the waiting room when they finally decided to give up and do the C-section. Ended up taking all the photos with my phone, and only did that because a nurse reminded me.

          You get kind of caught up in the moment. Well, the moment and the sleep deprivation.

      2. Sure, as most parents do. But if they were threatening with posting them to embarrass her, then I would expect that it would be when she was much older. And for the threat to have any effectiveness, then she needed to believe they actually had photos of her.

  9. In response to the Podcast, I think IJ did a disservice to it’s listeners by failing to mention in discussing Lech v Greenwood Village that the suspect who barricaded himself in the plaintiff’s house was armed and had fired his gun at responding officers before the standoff began, instead suggesting the entire standoff and eventual raid/destruction of property was only done to apprehend a suspected shoplifter.

    1. Fair enough, but still – the cops, representing the public, took the house in order to benefit the public (i. e., by taking out a criminal). If the public benefits from the taking of private property, surely the public should pay for the benefit it received,.

      The public would have to pay for tearing down a house to build a road – why shouldn’t the public pay for tearing down a house to catch a criminal?

      1. Well, as I read it, they offered rent while the owner was arranging new housing, and to pay the deductible on their homeowner’s insurance. Which, in theory would have made the owner whole.

        Theory ignores a lot of things, of course: Psychic costs, transaction costs, your homeowners insurance becoming useless for a couple of years. But it’s still the same basis on which you’d be compensated if they tore your house down for a new road, and maybe a little more generous due to the lack of advance notice.

        The real problem for the owner was that they’d lowballed the value of the house to save on their insurance, a really stupid move, so the insurance wouldn’t actually pay to replace the house they’d been living in. And they wanted the city to compensate them for that, too.

        1. I don’t see the relevance of the insurance situation.

          There is no more reason to force the insurance company to bear the cost than there is to make the homeowner bear it.

          1. As it happens, I agree. But the way this would normally be handled, I believe, is for the insurance company to cover the damage, and then go after the local government for compensation.

            The homeowner’s problem in this case was that they undervalued their house to save money on insurance, and maybe property taxes, too. And only ended up compensated for the value they’d claimed the house had, not the actual cost of replacing it.

            1. I understand your point but I think you’re explaining it poorly.

              The homeowners problem is that the city screwed them, and in the usual case they’d be able to rely on their insurance to pick up the difference and let them sort it out with the city, but they didn’t have enough homeowners insurance and so weren’t able to pass the screwing over to the insurer.

              That’s better, isn’t it?

              Of course that should have worked out eventually, until the Court decided that 100% confiscatory taxes implemented by the lowest of the Executive branch without legislative approval are perfectly constitutional, as the Takings Clause doesn’t apply to actions of lower level minions (or something like that – they never actually get to the why part in any meaningful way).

            2. Again, it doesn’t matter.

              What if they had valued the house properly for insurance purposes? Would it then be OK to stick the insurance company for the loss?

              Here what should happen is that the insurer should go after the government for whatever they had to pay, and the homeowner should do the same for the difference between that and actual value.

              Think of it as the homeowner self-insuring for the difference. If the homeowner had not had insurance coverage the government should, I think, pay actual value. So they should pay that here, some to the insurer, some to the homeowner.

              1. They don’t do it in that order because it leaves the homeowner hanging for too long. The insurance company pays and then sorts it out with whoever caused the damage.

                1. Right, you two aren’t disagreeing on this.

                  The only reason to go to the insurer is because they’ll pay out quickly, and while we’d all like the government to do the right thing in a timely fashion I think none think that’s realistically plausible.

                  It’s the same reason you call your car insurance company when someone else hits you – so they’ll pay to get your car running again immediately, and then they’ll credit you on the backend when they collect from the other insurer.

                  1. ” while we’d all like the government to do the right thing in a timely fashion I think none think that’s realistically plausible. ”

                    The government, like all deep-pockets, has to be extremely careful about fraudulent claims. That works against speedy payouts.

                2. “They don’t do it in that order because it leaves the homeowner hanging for too long. The insurance company pays and then sorts it out with whoever caused the damage.”

                  The insurance company pays to the limit of their liability, and may try to limit their exposure, even at their customer’s expense. People often find out the hard way that they aren’t as insured as they thought they were.

            3. “The homeowner’s problem in this case was that they undervalued their house to save money on insurance, and maybe property taxes, too. And only ended up compensated for the value they’d claimed the house had, not the actual cost of replacing it.”

              You’re framing this as an intentional act, and I don’t agree that this is at all likely. They insured the house at value X because when they insured it, it was worth value X. Over time, the value rose from X to Y at the time the damage occurred. People who aren’t planning on selling their property don’t pay much attention to current valuation. On the other hand, they know full well what THEY paid for it.

      2. I agree, and I think the hosts made a compelling argument that the costs of these incidents should not fall on random citizens unfortunate enough to be caught in the crossfire. I’m not familiar enough with the existing law to say whether that is something the court should have determined in this case, or if it is something that needs to be addressed by new legislation.

        1. Why would we even need new legislation? The property was seized (and destroyed) by the government for the public benefit of capturing a criminal. That’s pretty squarely in the original Constitution.

      3. Any deaths would have been laid on the crook as murder, even if the result of reasonable police action. Isn’t this the same? The crook is responsible just as if he had destroyed the house himself.

        1. That would be fair if it was the crook’s house – the crook would not be entitled to compensation because the crook was responsible for the damage.

          But the homeowner isn’t responsible for the damage caused by others who didn’t have his approval – the only approval he gave was in his capacity as a member of the public, in which case we can presume that, in common with other members of the public, he authorized the police to capture dangerous criminals.

          OK, then, the public authorized this, they benefited from it – the homeowner wasn’t the sole beneficiary of the crook being taken down – so the public in general should pay for the costs.

        2. I have to disagree because in this case, the police’s actions were excessively destructive for no good reason. They seemed like they intended to maximize the damage to the house and acted with reckless disregard of safety or property of others.

          Besides, the crook has no money and almost no income

          1. But they acted with reckless disregard because they know they’re immune to damages they cause – although the beat cop probably thinks the municipality pays and he’s indemnified, the net result is the same – a complete disregard for external costs born by the public.

            And that’s largely because of qualified immunity extending far beyond the original rationale. Initially the court said that they were just enforcing the old common law defenses – such as charges against the sheriff of kidnapping could be affirmatively defended against by showing that a warrant for the arrest had been issued, or charges for theft with a warrant for seizures. But that then got extended far beyond the common law defenses to become widespread immunities for what were often racist actions – the suppression of the freemen in the former confederacy with the stripping of protections granted by 18 USC 19xx.

            The history of affirmative action is varied, but inextricably entwined with Jim Crow.

  10. Has the time arrived where federal courts might be willing to entertain a motion for sanctions Against police for filing a frivolous qualified immunity claim, perhaps also for abuse of process?

    The fact that the police here lied so blatantly – the Balko report says their stories were nearly identical and then changed identically when the original story was flatly contradicted by both the video and the neighbor eyewitness – ought, at some point, to start having consequences.

    1. This is regarding the South Carolina police raid.

    2. Magistrates? Definitely, we’ve already seen it starting.
      District judges? Maybe.
      Circuit Courts? Based on every ruling, no way in hell. Lucky rolls of the dice on panel members notwithstanding.
      Supreme Court? Maybe. I think there’s two strong votes in either corner, and a bunch of maybes. Gorsuch + Thomas for overturning qualified immunity, and likely Sotomayor and Ginsberg (though for very different reasons, so it may not be the same case that gets all of them). Kagan is middle of the road, and Kavanaugh is unknown. Alito, Roberts, and Breyer would be against it in descending order of certainty.

      With the right case I think there’s at least 6 votes to curtail it, something like Pottawatamie County v McGhee from a few years ago, which settled after an oral argument that was funnier that Brown v Entertainment Merchants Association, in which the facts were that local police fabricated all of the evidence against two visiting black men they falsely accused of murdering a white police chief in an all white town.

      Then again Connick v Thompson went the wrong way too, but that was about prosecutors, not police. Even though it has the best Kagan quote ever at oral argument (not as good as Scalia in Entertainment Merchants Association, but damn good).

  11. Does the president have absolute immunity from being investigated for crimes not committed while in office? The Second Circuit says no; President Trump cannot block a subpoena requiring an accounting firm to turn over his tax returns as part of a New York grand jury investigation into potential hush money payments to former paramours.

    “Don’t worry, hoi polloi prosecutors all over the place haven’t tried to tie up the presidrent. It’s just a theoretical problem. If it happens, we can cross that bridge.”

    It happens.

    “Full steam ahead!”

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