Short Circuit: A Roundup of Recent Federal Court Decisions

An unvaccinated firefighter, HIV-positive airmen, and a racist lawyer.

|The Volokh Conspiracy |

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

New IJ cert petition: Is an officer who has consent to "get inside" a house but instead destroys it from the outside entitled to qualified immunity in the absence of precisely factually on-point case law? The Ninth Circuit said yes. We're asking the Supreme Court to reconsider. Click here to learn more.

New podcast: The U.S. Supreme Court will hear oral argument in an IJ school choice case, Espinoza v. Montana Dep't of Revenue, this coming Wednesday. So just for fun we put together a little episode on the history of school choice that explores, among other things, how the remnants of 19th-century anti-Catholicism still play an outsized role in educational policy today. (Click here for Apple Podcasts.)

  • Electronic service provider ABC Corp. (a pseudonym) received a grand jury subpoena for subscriber information, along with a court-ordered nondisclosure order prohibiting it from telling anyone about the subpoena for one year. An unconstitutional prior restraint on speech? The Supreme Court may have roundly rejected prior restraint, says the Third Circuit, but this is one of the rare cases where one will be upheld.
  • The Air Force's effective ban on deploying HIV-positive airmen is out of step with modern science, says the Fourth Circuit. So no discharging two airmen (who are asymptomatic and whose doctors and commanding officers support their retention) while this lawsuit proceeds.
  • Firefighter refuses Leander, Tex. city requirement that all personnel receive a Tdap vaccine, citing his Baptist faith. The dep't offers him two options: Take a code enforcement job with the same pay and benefits or wear a respirator while on duty. When the firefighter declines both options, he's fired for insubordination. Illegal religious discrimination? A free exercise violation? Neither, says the Fifth Circuit. The city offered reasonable accommodations that do not burden the firefighter's religious practice. Judge Ho (concurring/dissenting): I think we need more facts. Also, allow me to tell you at considerable length why both Employment Division v. Smith and qualified immunity are bad.
  • Federal inmate writes a letter to the district court explaining that, following a gender transition, they would like the court to change the name on the 6-year-old judgment to reflect their new legal name. District court: A subsequent name change is not a clerical error that a court can fix. Fifth Circuit: As no rule authorized this kind of motion, the district court lacked jurisdiction to entertain it. And we won't use the inmate's preferred pronouns because Congress hasn't told us we must. Dissent: We should not issue drive-by jurisdictional rulings or use non-preferred pronouns.
  • As undercover FBI agent reaches police barricade at Garland, Tex. event featuring drawings of the prophet Muhammed, two men with whom the undercover agent had been communicating jump out of the car behind him wearing body armor, carrying hundreds of rounds of ammunition and a photocopied ISIS flag. They shoot a security guard in the leg before being promptly killed themselves. Can the security guard sue the feds? The Fifth Circuit says no.
  • Sixth Circuit: I've got good news and bad news. The good news is that the Ninth Circuit has changed the way it calculates drug sentences, so if you were sentenced today, you would only get 10 years instead of the 20 you're serving. Habeas petitioner: That's great! What's the bad news? Sixth Circuit (over a dissent): You were not sentenced today.
  • Allegation: After Huron County, Mich. officer arrests extremely drunken woman for DUI, he takes her to jail and has her walk up stairs with her hands cuffed behind her back while he waits at the top of the stairs. Gravity + ethanol = head trauma. District court: This is just like another case, where a court held that police can't leave a drunk person cuffed in a holding cell where they might injure themselves. Sixth Circuit: That (out-of-circuit) case was about holding cells. This case is about stairs. Qualified immunity.
  • Bungled prosecution, O. Henry, and Mark 12:17—not to mention the modified categorical approach—are all on display in a bizarre story out of the Sixth Circuit. The upshot? Mosques aren't used in interstate commerce, even when former congressional candidates plot to blow them up.
  • 312-pound teenager with a heart condition runs from a store security guard after being caught shoplifting. Apprehended by Indianapolis police upon collapsing from the exertion, he complains of difficulty breathing after being handcuffed behind his back. Police call paramedics, who examine him, find him breathing normally, and say he's fine. While waiting for the jail wagon to arrive, he ceases to be fine—he's unresponsive and his pulse is weak. Police call another ambulance, but paramedics are unable to revive him. The medical examiner determines he had a heart attack exacerbated by (among other things) the handcuffs. Seventh Circuit: This is tragic, but the police didn't know the handcuffs were causing breathing trouble, and the suspect didn't complain about the tightness of the cuffs. Qualified immunity.
  • Man convicted of 1989 murder learns, years later, that his appointed counsel believed that his black clients were idiots who deserved to be convicted. New trial? Ninth Circuit (2018): No. You didn't show his racism adversely affected his performance. All three judges, concurring in their own judgment: Unfortunately, we're bound by Ninth Circuit precedent to reach this result. Ninth Circuit (2020, en banc): The state now concedes a new trial is warranted, so, without reconsidering our precedent, conviction vacated.
  • The feds fund teen pregnancy prevention through grant programs with two funding tiers. The first tier is for replicating programs that have been proven effective, and the second tier enables grantees to test new programs. According to Planned Parenthood, the grant programs illegally favored or required abstinence-only programs in 2018. Ninth Circuit: That is indeed the case for the first tier, which demands grantees use two never-before-implemented tools. Something that has never been implemented cannot have been proven effective. As for the second tier, the district court shall address it first.
  • Allegation: Healthy 27-year-old arrives at Hutchinson, Kan. prison, begins suffering a variety of increasingly alarming symptoms: numbness, decreased vision, his arms shake uncontrollably, his fingers bend in abnormal directions. He tells medical staff "it feels like something is eating my brain." The staff either fabricate or mistakenly document an MRI scan of his brain that turns up normal. Soon after, he begins talking incoherently, drinks his own urine, defecates on himself and doesn't clean up. A real MRI is taken, revealing a widespread infection in his brain. Instead of being taken to a hospital, he's put back in isolation. The next day his heart stops and he is rushed to the hospital where he dies. Tenth Circuit: The allegations against a particular doc aren't sufficiently specific, so qualified immunity. (The case is proceeding below against other medical staff, however.)
  • While in jail on misdemeanor charges, inmate asks guard if he can charge his cell phone, which was not taken from him during booking. Uh oh! He's charged with possessing contraband! Trial court: "[C]onsider yourself fortunate" that I'm only sentencing you to 12 years in jail, with parole eligibility after three, instead of a full 15-year sentence. Mississippi Supreme Court: "While obviously harsh, [a] twelve-year sentence for possessing a cell phone in a correctional facility is not grossly disproportionate." Concurrence: Our case law does, indeed, demand we uphold a 12-year sentence against this father of three for a victimless crime likely caused by a failure in booking procedure, but the prosecutor and trial judge deserve a mild finger-wagging for being so punitive. (H/t @jduffyrice)
  • And in cert grant news, the U.S. Supreme Court will review Barr v. American Association of Political Consultants, which we previously summarized thusly: American Association of Political Consultants: Federal law prohibits us from making robocalls to cell phones, but allows robocalls from people trying to collect federal loans. That violates the First Amendment! Fourth Circuit: We've got good news and bad news. The good news is that we agree with you. The bad news is that we're going to fix the problem by prohibiting the loan collectors from making robocalls, too.
  • And in en banc news, the Third Circuit will not reconsider its decision that an inmate cuffed to a bed in an uncomfortable position and forced to lie in his own filth for nine days can sue over the length of the confinement but not the conditions.

Last August, a DEA agent seized over $80k in cash from Rebecca Brown at the Pittsburgh International Airport. But even though it's perfectly legal to fly with that much cash and Rebecca hasn't been charged with a crime, the feds won't return the money. In fact, the cash belongs to Rebecca's dad, Terry, a retired railroad engineer. Terry spent years saving it up and hiding it in his home (following a practice he'd learned from his parents). After he downsized to a new apartment, Terry decided he was uncomfortable with that much cash in his apartment and asked Rebecca to deposit it in a joint bank account. This week, IJ launched a class action against the TSA and the DEA (and its agent), seeking the return of the money and permanent nationwide injunctions against the agencies' unconstitutional and unlawful cash seizure practices. Click here for more from The Washington Post.

NEXT: Avenue 5 Is Veep in Space—That Doesn’t Make It Great

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  1. I wonder what it would take to get Qualified Immunity re-labeled as “the Costanza rule?”

  2. And in cert grant news, the U.S. Supreme Court will review Barr v. American Association of Political Consultants, which we previously summarized thusly: American Association of Political Consultants: Federal law prohibits us from making robocalls to cell phones, but allows robocalls from people trying to collect federal loans. That violates the First Amendment! Fourth Circuit: We’ve got good news and bad news. The good news is that we agree with you. The bad news is that we’re going to fix the problem by prohibiting the loan collectors from making robocalls, too.

    Wait, so a bunch of lawyers accidentally got the Fourth Circuit to ban loan-collectors from calling cell phones?

    And the idiot lawyers appealed instead of taking the win!?

    1. I don’t understand why the case wasn’t dismissed for lack of standing. The plaintiffs get no relief from the 4th Circuit’s finding that what other people do is illegal. Why isn’t this an advisory opinion?

      1. Don’t look a gift horse in the mouth.

        It is, though.

  3. This is tragic, but the police didn’t know the handcuffs were causing breathing trouble, and the suspect didn’t complain about the tightness of the cuffs. Qualified immunity.

    This decision seems like one of the prototypical edge cases where something like Qualified Immunity would be reasonable (putting aside the question of its textual basis)

    1. I don’t see why it says anything about the reasonableness of QI. If those facts are true, then the police probably should win — but on the merits. They aren’t a reason why the police should be immune from suit.

      1. ” the police probably should win — but on the merits. They aren’t a reason why the police should be immune from suit.”

        If they’re going to win anyway, might as well do it as soon in the process as possible, and save both sides a bunch of money.

        1. It would have saved money had it been done on a motion for summary judgement, with no need for any immunity and the litigation about whether it applied or not in this case. Here, QI increased the costs of the case, not contained them.

          And if QI existed today as it’s analog did at the founding, few would object to it. Recall that the rationale of the judges who made up QI and applied it to S1983 et al was that at the founding there were certain common law defenses to criminal or tortuous acts by state actors – specifically that they were permitted by law. So when the sheriff arrested you, you in turn could prosecute the sheriff for kidnapping, and the sheriff could present an affirmative defense of having obtained a warrant for your arrest. The modern incarnation of qualified immunity turns that common law basis on its head, instead exempting the Kings Men from all laws unless a judge has told them that a specific law applies to them in a specific circumstance.

          1. “It would have saved money had it been done on a motion for summary judgment”

            True, if writing and submitting motions for summary judgment were free.
            Do lawyers in your state draft motions for summary judgment for free?

    2. Putting handcuffs on someone carries inherent risks. Most of the time they are small, but they are not zero. So if you are going to handcuff someone, I think you have a duty to be sure you are doing it safely. Granted, that’s more of a negligence argument than a constitutional one.

      And that’s part of the reason I object to qualified immunity. We give the police awesome powers. They can kill you. They can destroy your property. They can lock you up. With great power should come great accountability.

      1. Alternatively, why aren’t these simple Takings Clause cases?

        An agent if the state was authorized to take your property (your life) for the public good (else they’re acting ultra vires and don’t get QI) and haven’t compensated you for it yet.

        I know, the real answer is FYTW, it you’d think at least a few judges would be clever enough to try letting that one through.

  4. Judge Duncan expressed her opinion in this matter forcefully.

  5. Cops wanted to look for a guy in a woman’s house, she says sure, they blow it up, and the court says that’s okay? A young man is chased by cops for shoplifting, is caught, and dies in custody and the court says that is okay? A jail intake fails to take a guy’s phone and he get 12 years in jail for what is obviously and clearly the jail’s fault and the court says that is okay? Qualified immunity is a pox on the legal profession. If I worked in this field, I would be uncomfortable. These outrages are stirring up the natives.

    1. I agree with you on the 1st and 3rd cases, but what do you think the cops in the shoplifting case did wrong. When he had issues the called for medical help. Twice. This didn’t even really need qualified immunity even a normal citizen wouldn’t be liable here because there isn’t a breach in the duty of care to even make a negligence claim.

      1. He’s not right on the 3rd case, either. While it’s an outrage, it wasn’t a QI case. It was just an appeal from a criminal sentence.

        1. I was being generous in interpreting it. Those three are cases he disagreed with vehemently, and then another statement on QI that is moderately linked to the previous paragraph, not that he was saying they were all QI cases. I could be wrong about that though.

  6. Concurrence: Our case law does, indeed, demand we uphold a 12-year sentence against this father of three for a victimless crime likely caused by a failure in booking procedure, but the prosecutor and trial judge deserve a mild finger-wagging for being so punitive.

    A mild finger-wagging?? This is insanity.

    1. Unless the fingers are being wagged under their skin as they’re flayed in the public square, then yes.

      Moral: never do business in Mississippi as they are an actual outlaw state, and their Supreme Court is hostis humani generis.

  7. > And we won’t use the inmate’s preferred pronouns because Congress hasn’t told us we must.

    Hm. Congress has not told me I must not address the 5th Circuit as a fuckpuddle of constipated shit goblins, so I guess I will continue to do so.

  8. It seems to me that since juries tend to be pro-police anyway, abolishing qualified immunity would still mean that plaintiffs would lose many of these cases on the merits. But they should at least be given the opportunity to present their cases to a jury. Plus I think qualified immunity gets it exactly backward. If ignorance of the law is no defense for a citizen, why should it be a defense for those whose job is to enforce the law, and who therefore should especially be presumed to know what the law is?

    1. ” I think qualified immunity gets it exactly backward. If ignorance of the law is no defense for a citizen, why should it be a defense for those whose job is to enforce the law”

      An ordinary citizen who is unsure of where the EXACT line of legal behavior lies, can choose inaction and play it safe. We do not want the cops to do this.

      1. And yet we incentivize police to not act by immunizing them when they violate the law (QI), and immunizing them when they refuse to enforce the law.

        We may want some sort of pure respondeat superior liability only for the reason you argue, but what we have is the worst of both.

        1. Agreed. Our legal system is the worst in the world, except for all the others.

  9. In the Nash case, the officer who booked Nash did not testify in the trial. I do not understand why Nash’s lawyer did not aggressively challenge this, as the booking officer possessed information directly relevent to Nash’s level of intent, which is at least directly relevant to his sentence and quite possibly his guilt. If the booking officer let Nash keep the phone, as he may well have, it seems to me that Nash could argue that the cell phone was not contraband or that he was the victim of illegal conduct on the officer’s part. I would at least have wanted the jury to hear the officer take the 5th Amendment, hopefully repeatedly.

    1. Without digging through the filings (and this doesn’t seem to be in the appellate judgement) it may be that the judge ruled it immaterial in a pretrial motion as to the crime itself, if it’s an absolute liability crime as written then it doesn’t matter if the arresting officer explicitly told him to keep it or not, the mere possession regardless of other facts is sufficient. Since the judge (to his mind) only sentenced him to 3 years of a possible 15 those facts have already been baked into it.

      Of course, things like this will be on the sign above the wood chipper, but judges more than other state agents tend not to understand that they’re the ones causing the problems they cause.

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