Short Circuit: A Roundup of Recent Federal Court Decisions

Bad water, bad debt, and man, the police shoot a lot of people.

|The Volokh Conspiracy |

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

After seven years, a trip to the U.S. Supreme Court, two trips to the Indiana Supreme Court, and two trials, Tyson Timbs finally got his Land Rover back from the state of Indiana this week on the heels of a trial court decision last month that its forfeiture violated the Excessive Fines Clause of the U.S. Constitution. The case isn't over yet, though, as the state is once again appealing to the Indiana Supreme Court. Click here to read more.

  • In 2016, Washington, D.C. officials crafted new regulations requiring child care providers to obtain college credentials in early childhood education. Day care providers and parents: Which will throw a lot of us out of work and raise the cost of child care (that is already the highest in the nation) while providing no actual benefits to children. D.C. Circuit: The fact that officials gave providers until 2023 to comply and has offered to consider waiving the regulations for some providers (but not others) is "cold comfort indeed." The case is not moot or unripe and should not have been dismissed. (This is an IJ case.) 
  • Despite COVID-19 order prohibiting in-person religious services, Holly Springs, Miss. church holds Easter services and a Bible study. Police cite the pastor, and the church sues. District court: "[T]his entire lawsuit is nothing more than a deeply misguided attempt on [the church's] part to gain permission to endanger their own lives and those of their fellow community members." The court won't rule on the motion for preliminary injunction on an expedited basis. Fifth Circuit: Temporary deferral of a decision may result in a permanent denial, so the city is enjoined pending the district court's decision. (While the appeal was pending, arsonists burned the church down. Judge Willett has sharp words in concurrence for the city's "shameful" suggestion that the arson moots the requested injunction.)
  • In further pandemicrelated news, the Sixth Circuit stays a district court order directing Ohio to (among other things) dispense with the ink-signature and witness requirements for ballot initiative petitions.
  • Here's a fun game: See how far into this Sixth Circuit opinion you have to read before you can guess whether the Michigan officials responsible for the Flint Water Crisis are immune from suit.
  • Allegation: After quadruple murder, Detroit police officers interrogate 14-year-old who lived nearby, feed him details of the crime. They falsely tell him his shoes tested positive for blood. The teen eventually confesses after the officers assure him he can go to school the next day. The real murderer confesses two weeks later, but no one follows up. The teen spends nine years in prison before being exonerated. Sixth Circuit: No qualified immunity for the detectives. (Click here for more from the National Registry of Exonerations.)
  • Fraudster lies to bank while allegedly trying to inflate the value of the Chicago condos he's developing. After the FBI finds him in Saudi Arabia, he's thrown in debtor's prison there for not paying $26k in hotel charges and other debts. Will his time spent in Saudi detention offset his U.S. prison sentence for fraud? Seventh Circuit: No. No it will not.
  • Allegation: Man drunkenly argues, fights with his uncle. The man gets a gun from his car, heads back to the uncle's porch. The uncle goes inside the house and locks the door, and the man turns away from the porch, the whole time pointing the gun (turns out it was a pellet gun) at either the ground or the sky. At that moment, and without announcing his presence, a Little Rock, Ark. officer shoots at the man five times, hitting him once in the head and killing him. Eighth Circuit: No qualified immunity.
  • Mentally ill man in driver's seat of parked car rocks back and forth frantically while slashing the air with a knife. He doesn't respond to police, who break the passenger side window and tase him. He stumbles out of his door with the knife, and within seconds officers shoot 23 times, hitting him 15 times in the side and back, killing him. Eighth Circuit (over a dissent): Qualified immunity. 
  • Officers suspect Lancaster, Calif. man illegally possesses firearms in his home. (Neighbors say he fires into the air occasionally.) But rather than obtaining a search warrant, officers piggyback onto a separate investigation by code inspectors into violations at the home. (The man has put up tarps blocking view of the property from the street, put up floodlights that shine into neighbors' properties, and (maybe) electrified his fence.) Code inspectors get a warrant that allows police to assist and forcibly enter. They discoverguns and drugs. Ninth Circuit: Suppress the evidence. The nine officers (instead of the usual one) were doing a criminal investigation under the guise of code enforcement. Dissent: The officers might have done a more thorough sweep than the warrant allowed for (going through drawers and taking 40 minutes), and that's what matters. Not their subjective intent upon entering the property. 
  • Can a California church get a preliminary injunction against the state's and county of San Diego's stay-at-home orders as applied to religious services? Ninth Circuit: "We're dealing here with a highly contagious and often fatal disease for which there presently is no known cure." So, no. Dissent: The order specifically singles out religious services for worse treatment than other types of mass gatherings, which is super unconstitutional. The church should get the injunction.
  • In September 2017, the cities of Oakland and San Francisco sued fossil fuel producers, alleging that their production of greenhouse-gas-emitting fuels was a public nuisance under California law. The fossil fuel producers removed the case to federal court, which the district court granted on the grounds that the claim turned on federal common law. Ninth Circuit: No, it doesn't, but the fossil fuel producers identified six other bases for federal jurisdiction, so the district court should look at those before it decides whether remand to state court is appropriate.
  • During a routine traffic stop, Clovis, N.M. police officer orders backseat passenger to produce his ID. Man demurs; officer arrests. Tenth Circuit: The man's false arrest claim may proceed. The police can demand identification only if they suspect the person of an underlying crime. And as for the officer's claim that the passenger's underlying crime here was refusing to produce his ID? Well, that's the sort of "circular reasoning" up with which we will not put.
  • After chase, suspected car thief is wrestled to the ground by officers and fatally shot in the back by an officer. Harvey County, Kan. sheriff: Can't sue me for damages because I am a state official and protected by Eleventh Amendment immunity. Tenth Circuit: You're a county official. The suit can proceed.
  • Motorist swerves all over snowy, icy highway, refuses to stop for police, flashes the peace sign. Eventually, they hit heavy traffic, and the motorist momentarily gets boxed in. A Clear Creek County, Colo. officer exits his car and shoots the motorist in the neck, rendering him a quadriplegic. Jury: Which was not excessive force. Tenth Circuit: And there is no cause to reconsider the jury's verdict.
  • Police get call about "a skinny black man" who might be casing Madison, Ala. neighborhood, approach 115-lb, 57-year-old Indian man who repeats "no English" several times. An officer frisks him, takes him to the ground, kneels on him while his head lolls and nose bleeds. The (unarmed) man, who was out for a morning stroll in his new neighborhood, is permanently paralyzed. Eleventh Circuit: Could be excessive force. No qualified immunity. (The cop was fired and charged with assault—and then acquitted and rehired.)

For years, a judge in New Orleans ordered defendants to wear ankle monitors provided by a specific company to which the judge has personal, financial, and political ties. The company charged defendants hundreds of dollars a month in fees under threat of jailing, and the judge regularly refused to release defendants from ankle monitoring until they paid all their fees. And though the judge claims to have stopped the practice, the company is still trying to collect outstanding fees. This week, IJ filed a class action seeking cancelation and return of the fees as well as a ruling that protects the right to a neutral adjudicator. Click here for more.

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  1. After quadruple murder, Detroit police officers interrogate 14-year-old who lived nearby, feed him details of the crime. They falsely tell him his shoes tested positive for blood. The teen eventually confesses after the officers assure him he can go to school the next day. The real murderer confesses two weeks later, but no one follows up. The teen spends nine years in prison before being exonerated. 

    JFC

    1. Don’t talk to cops without a lawyer present.

    2. I could understand the police framing someone they thought did it but didn’t have enough evidence to convict. (NOTE: Understanding something is not the same as approving of it.)

      But I do not understand letting someone sit in prison whom they know to be innocent. That makes no sense to me. Wouldn’t they want to get the right person? How does anyone, including the police, benefit from sending the wrong man to prison?

      1. Officers of the law, being better people than you or me, have an instinctual ability to detect who is and who is not a criminal.

      2. You really should read the referenced description – more twists and turns than you can shake a stick at. And it wasn’t just police chief, detectives and prosecutors who were happy with an innocent person rotting in prison; five years after the murders, in their infinite wisdom,

        “The [Michigan Supreme Court] held that actual innocence was not a legal basis to withdraw a guilty plea…”

        Talk about losing the meaning.

        1. On 2nd thought, I shouldn’t have taken the “infinite wisdom” poke at the SC without knowing whether they were just doing their job. But my comment about “losing the meaning” stands; if they *were* doing their job, the system was clearly broken.

          1. I don’t care if they were “just doing their job.”

            Let the kid go and let whoever can fire you. You shouldn’t want to keep a job that requires you to make the kid stay in jail.

            Conscience, anyone?

            1. “Conscience, anyone?”

              We are talking about government officials here. Conscience, of course not.

              1. Well, lack of conscience is hardly restricted to government officials, though, given the behavior of Trumpists in government, there is a case that it has recently been quite common there.

                1. Lack of conscience in government officials has been common going back to at least WWII.

      3. “But I do not understand letting someone sit in prison whom they know to be innocent.”

        In other news, the FBI recently said, (summarized) “upon review, it appears that General Flynn did not commit a crime, the statements he made were not material to an investigation, and we would like to drop all charges. There is no crime, he is innocent.”

        Meanwhile, Judge Sullivan….

        1. I don’t think that claims of innocence by the defendant’s allies – which is what Barr is here – are evidence.

          1. Does that perhaps make you think there might be a good reason to not allow a defendant to withdraw a guilty plea simply by asserting that they are actually innocent after all?

          2. And what is the difference between that, and the case with the 14 year old kid?

            1. The claim that Flynn is innocent lacks a good faith basis.

              1. But it does have actual facts on its side. What it lacks is original and non modified 302s.

              2. Of course there is good faith. The statements Flynn made were not material to the investigation, if there even was a properly predicated investigation.

                1. I meant that a claim that he’s innocent made by someone who actually knows the law — which means you and Jesse are out — couldn’t be in good faith. (Though one could argue that making such assertions when one is ignorant of the fact and law is inherently bad faith.)

                  1. Another erroneous statement by Mr Neiporent.

        2. Flynn swore under Oath to the contrary – more than once.

          1. So did the 14 year old kid… If that’s your standard, then the kid should stay in prison, because he confessed, signed the confession, and pled guilty…

            (For the record, I believe charges against both should be dropped, and they should be let go).

      4. Don’t you think that the relevant actors believed that the plaintiff here was, in fact, the right person?

      5. How does anyone, including the police, benefit from sending the wrong man to prison?

        The police benefit because they’ve made an arrest and closed a case, which is what they’re judged on.

  2. “. . . up with which we will not put”? Gosh, that’s a long way to go to avoid ending a sentence with a preposition.

    1. That was the point when this construction was initially used as a satirical putdown of overly pedantic grammarians (one version of which is often, and I gather from Language Log perhaps incorrectly, attributed to Churchill).

  3. Here’s a fun game: See how far into this Sixth Circuit opinion you have to read before you can guess whether the Michigan officials responsible for the Flint Water Crisis are immune from suit.

    The first sentence.

    1. Well that, and its pretty solid at 25 words, but by 31 words there can be no mistake. The judge is clearly not happy with the defendants.

  4. Corruption in New Orleans?

    Who could have imagined?

  5. “Mentally ill man in driver’s seat of parked car rocks back and forth frantically while slashing the air with a knife. He doesn’t respond to police, who break the passenger side window and tase him. He stumbles out of his door with the knife, and within seconds officers shoot 23 times, hitting him 15 times in the side and back, killing him. Eighth Circuit (over a dissent): Qualified immunity. ”

    Is that what we’re calling manslaughter now? The root of all current police brutality and displays of racism is “Qualified Immunity.” This person posed no threat to anyone in a PARKED CAR other than himself. Box him in, get a mental health professional out there, and de-escalate the situation.

    Instead, the pigs decided to force him out of the car, with a backup plan of “just kill him.”

    Qualified immunity killed this man, because the police aren’t required under that doctrine to come up with reasonable responses. All they’re required to do is come up with something that hasn’t been ruled obviously illegal, no matter whom they murder in the process.

    1. This is a much tougher case that you seem to think it is. If you read the entire story, the police were very worried and relatively patient.

      They saw a guy, who they had just tased…twice….get up and start running towards a bunch of people 30 feet away with a knife, and acting irrationally.

      1. I read it. Glad to see your track record continues unabated-

        They were not patient (despite the fact that he posed no threat to anyone, they waited about 5 minutes – it was only 7 minutes between the time they got there and the time they killed him, and part of that time was spent tasing him) and invented a fake reason to be worried. (There was no hint of a gun, and they couldn’t claim he was reaching for one, so they just said, “Well, what if he has one?”)

        There was no “bunch of people” 30’ away and he wasn’t running towards them. And there’s nothing to indicate he got close to anyone before they started shooting.

        1. Note that if you hadn’t made up the “bunch of people” part, then their actions would have been even worse; firing 23 shots at a group of people would have been criminally reckless on their part.

        2. Glad to see once again, you didn’t read the case. You really are quite bad at this. Here’s the relevant sections

          “In contrast to Ludwig, Kong ran toward bystanders, including a woman driving only 30 feet away. Other cars were parked in the
          McDonald’s lot, with at least one pedestrian visible among them on the body-camera footage.”

          Moreover…

          “While pointing their handguns at Kong’s car, the officers continually warned each other about “crossfire” hitting an officer or citizen, in or out of a vehicle, by firing at the wrong angle. If the officers waited, a car might block their line of fire or bystanders get too close for them to fire. In fact, a bullet that missed Kong lodged in the bumper of a vehicle pulling out of the parking lot 30 feet away. Id. When Kong began running through the occupied parking lot, toward the frontage road and highway, the officers “were forced to make a split-second judgment in circumstances that were tense, uncertain, and rapidly evolving.” Id. at *18. Although Kong may not have threatened an officer with his knife, he posed a threat to citizens.”

          When you fail to read the case, you’re really not a good lawyer

          1. Try again:

            As the officers fired their guns, a customer’s vehicle exited the parking lot about 30 feet away. Id. at *7. Kong ran in the general direction of the vehicle, although not at it in particular.Id.

            He ran “in the general direction of,” but “not at” one woman who was in a car 30′ away, and you turned that into “start running towards a bunch of people 30 feet away with a knife.” Nothing in the part you quoted said that there was anyone else 30′ away except this woman in a car, and he wasn’t even running at her. He was running away from the police,

            Kong ran toward the frontage road and highway. Id.

            Not towards a bunch of people.

            1. You a bad lawyer. I said and I quote “get up and start running towards a bunch of people 30 feet away”

              And the LITERAL QUOTE FROM THE COURT CASE IS….

              “Kong ran toward bystanders, including a woman driving only 30 feet away”

              You are wrong. You can’t go around changing my words to “at”

      2. “They saw a guy, who they had just tased…twice….get up and start running towards a bunch of people 30 feet away with a knife, and acting irrationally.”

        Which wouldn’t have happened if they hadn’t forced the guy out of his car.

        1. They didn’t force him out. He stumbled out of the door on his own.

          “Right after the second tasing, Kong stumbled out the driver-side door, falling to the pavement. Id. He quickly stood up, knife in hand, and began running across the parking lot toward the frontage road and highway, away from the officers and McDonald’s.”

          Now, perhaps you think they shouldn’t have questioned or tased him at all. Then, you have someone acting erratically, not listening to anyone, in a car, waving a knife around should be left alone. Perhaps the cops just shouldn’t check if there is anyone else is in the car, or a gun. If someone dies, or some bystander gets killed, the cops should have just said “not our problem…we asked, he didn’t respond, so we left”.

          Is that right?

  6. > Dissent: The officers might have done a more thorough sweep than the warrant allowed for (going through drawers and taking 40 minutes), and that’s what matters.

    My first thought is “so why is this a dissent instead of a concurrence?”. Thankfully the dissent straightforwardly answers:
    > Because the districcourt did not address the scope of the search, I would vacate … and remand for further proceedings.

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