Short Circuit: A Roundup of Recent Federal Court Decisions

Horseshoeing school, tour guide licensing, and a lawsuit that will not go gentle into that good night.

|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: Special guest Scott Michelman of the ACLU of DC joins the panel to talk qualified immunity. Click here for Apple Podcasts.

  • Since 2005, the Postal Service has allowed people to design and purchase their own custom stamps as long as they are not "politically oriented." But many custom political stamps (for instance, bearing the names of political candidates) are in fact in circulation in 2015 when plaintiff's design (depicting Uncle Sam struggling against a snake labeled Citizens United) is rejected. A First Amendment violation? Postal Service: We are taking steps to end the custom stamp program. The case is moot. D.C. Circuit: Not so. Back to the district court to figure out if this is viewpoint discrimination, but to the extent the Postal Service bans designs containing depictions of "political content," that's such an amorphous standard as to violate the First Amendment.
  • After officials determine that CBP agents are failing to detect fraudulent documents at El Paso, Tex. border crossing, the agency issues new instructions to agents that will result in more travelers having to go through secondary inspection and thus more work for agents. CBP agents' union: Which is a change in a condition of employment that requires bargaining first. Arbitrator: That's so. Federal Labor Relations Authority: That is not so. D.C. Circuit: Seems like it is so, so the FLRA needs to reconsider. 
  • To promote tourism, the Welsh government helped develop a "Dylan Thomas Walking Tour of Greenwich Village, New York." But the tour materials contain a copyrighted photograph of the famous Welsh poet that the Welsh government allegedly hasn't licensed. Can the purported copyright owner defeat sovereign immunity and sue Wales itself? Second Circuit (seeing with blinding sight): Sure, tourism is a government purpose, but the means, a paid tour, was regular private commerce. Wales can be sued.
  • Charleston, S.C. bans guided tours of the city by people who have not first obtained a license. Which is a restriction on speech, says the Fourth Circuit, so the city needs to present some evidence that forcing people to, among other things, master a 500-page manual of city-approved facts before giving paid tours protects the public in some way. And because the city offered merely speculation about potential harms—which have not occurred in the many other cities that do not license guides—the law fails. (This is an IJ case.)
  • After incapacitating a homeless man, five Martinsburg, W. Va. police officers shoot him more than 20 times, killing him. No qualified immunity, holds the Fourth Circuit. "To award qualified immunity at the summary judgment stage in this case would signal absolute immunity for fear-based use of deadly force, which we cannot accept."
  • Allegation: While awaiting trial, detainee in Wake County, N.C. finds that prison officials are repeatedly opening, copying, and misdirecting his mail to and from his lawyer. When confronted, one official responds: "Sue me." Man sues. Fourth Circuit:  The man's First Amendment claim should not have been dismissed.
  • In 2018, the U.S. Supreme Court held that Proclamation 9645 (the "travel ban") could not be preliminarily enjoined. And on the strength of that holding, the challengers claims should now be dismissed outright, holds the Fourth Circuit.
  • Allegation: Two teenage Rio Grande City, Tex. sisters run away from home. Upon their return, the girls' parents ask police to scare them into believing they'd be arrested (even though neither was suspected of a crime) to teach them a lesson. An officer orders the older daughter to get out of the car, but she refuses and makes a run for it. Officers chase, one tases her, and she falls face first into the pavement, breaking her teeth and resulting in burns, bruises, and lacerations. She's arrested. Excessive force? District court: Claims dismissed. Fifth Circuit (2018): The claims against the officers shouldn't have been dismissed. District court: Fine. Qualified immunity. Fifth Circuit (2020): The law is clear that it was unreasonable to tase the girl if the situation is as she alleges, which a jury needs to determine.
  • Inmates at Navasota, Tex. geriatric prison allege that the prison has failed to reasonably protect them from COVID-19. The district court entered a preliminary injunction requiring the prison to limit transportation in and out of the prison, provide inmates with access to sanitization supplies, and take other steps to minimize the spread of the disease. And the Fifth Circuit, in a per curiam decision with all three members of the panel writing separately, will vacate the injunction, as the prison has substantially complied with the ordered measures.
  • Ohio inmates contend that the prison's lackadaisical approach to COVID-19 violates the Eighth Amendment. The district court entered a preliminary injunction requiring the prison to identify vulnerable inmates and determine which might be eligible for early release or transfer, which the Supreme Court ordered stayed after the Sixth Circuit declined to do so. Upon further review, the Sixth Circuit determines that the prison's "six-phase action plan" and evolving protocols were a reasonable response to the novel threat, so the district court should not have granted the preliminary injunction. Dissent: 837 medically vulnerable inmates were left in a perilous situation as the virus spread, and the prison should've done more. Meanwhile, similar litigation from Michigan inmates and pretrial detainees meets a similar fate at the Sixth Circuit. (We recently discussed the Ohio litigation on the podcast with one of the inmates' attorneys.)
  • Prosecutor drives the wrong way down a one-way street, crashes, injures man. Though he is "hammered," Grand Rapids, Mich. officers neglect to breathalyze the prosecutor and drive him home. They also discuss the situation with a superior on a non-public, unrecorded police line. Yikes! Apparently unbeknownst to every city employee, the line was in fact recorded, and the conversations are used in an internal investigation of the incident that results in the superior officer being fired. (The prosecutor resigns, is sentenced to a night in jail.) Did the city violate federal and state wiretapping laws? It did not, says the Sixth Circuit. [Ed.: In 2015, after a Grand Rapids officer beat and choked an innocent college student unconscious, the very same prosecutor tried the student for assaulting the officer; SCOTUS will consider the student's claims for damages next term. That is an IJ case.] 
  • Under a new federal rule, immigrants who accept or seem likely to need some form of public assistance for 12 months over the course of three years (counted in such a way that you could get to 12 months by accepting four different kinds of benefits for three months) will have difficulty obtaining citizenship or being admitted to the country. Other new factors counting against them include having a big family, failing to earn 250% of the federal poverty guidelines (near the U.S. median income for a family of four), not having private, unsubsidized insurance, and more. Seventh Circuit (over a dissent): No enforcing the rule while litigation proceeds.
  • While Rockdale, Ill. officer is in his squad car with the documents of a motorist (pulled over for having an insufficiently lit license plate), a Will County, Ill. officer arrives, approaches the motorist, and is rudely told to absent himself. The Will County officer smashes motorist's window, beats him. The motorist is convicted of battery on an officer, sentenced to six years in prison. Ill. appeals court (over a dissent): Dashcam video clearly contradicts the Will County officer's account. Conviction reversed. Seventh Circuit: But the motorist's suit against the officers, which was initially filed before he was exonerated, cannot go.
  • Allegation: In 2016, Maryland Heights, Mo. officer pulls woman over for speeding, searches her car, and finds no contraband. Then a female officer conducts a roadside strip search and body cavity search. Eighth Circuit: No need to treat the strip search and body cavity search as separate searches. To trial this must go. 
  • Missouri law requires women, before they can have an abortion, to certify that they have had a chance to see an ultrasound at least 24 hours in advance and received a booklet expressing the state legislature's view that life begins at conception. Woman: Which violates the First Amendment and my Satanist beliefs. Eighth Circuit: It doesn't violate the First Amendment.
  • California law bars trade schools from accepting students who do not have a high school diploma or its equivalent. Horseshoeing school owner: Not only does the law make no sense (you don't need to know algebra to learn to shoe a horse), restrictions on teaching and learning at my school are subject to the First Amendment, even if you call those restrictions "consumer protection laws."Ninth Circuit: The law burdens speech and is so "riddled with exceptions" that regulators can't know whether it applies to a given school without first examining who is speaking and the content of their speech. The case should not have been dismissed. (This is an IJ case.) 
  • After finishing his prison term, sex offender is held in Orange County, Calif. jail for five years while he waits for trial that will determine whether he's to be involuntarily committed at a state hospital. Ninth Circuit: He plausibly alleges conditions for civil detainees at the jail were similar to those for their criminal counterparts and certainly much worse than conditions at the hospital. His suit against the sheriff and the county should not have been dismissed.
  • Allegation: After armed passenger flees on foot from traffic stop, Warrior, Ala. police threaten to jail the driver (who had violated his parole). The man reluctantly phones the passenger, tells him the coast is clear, and picks him up. Police pull them over, and the passenger shoots at the officers, who shoot back and hit the driver five times. (He lives.) Did the officers violate, among other things, the driver's Thirteenth Amendment right against involuntary servitude? Eleventh Circuit: No. Qualified immunity.
  • And in en banc news, the Sixth Circuit (over a dissent) will not reconsider its decision granting qualified immunity to two Cleveland plainclothes officers who allegedly beat a man on his porch and then had him charged with assault after he didn't respond sufficiently respectfully to their questions.

Using explosives and a battering ram attached to an armored personnel carrier, Greenwood Village, Colo. police blew up Leo Lech's house in an effort to dislodge a fugitive who had broken in and was holed up inside. Afterward, the house was deemed uninhabitable and had to be torn down, but the police refused to compensate Lech for any of the damage. The Fifth Amendment normally requires the government to compensate property owners when it intentionally takes or destroys private property, but the Tenth Circuit has held that the Fifth Amendment doesn't apply to the police. IJ has filed a petition for certiorari, asking the Supreme Court to set the Tenth Circuit straight. Click here to read more.

NEXT: Mask Wearing Correlates Strongly with Declining COVID-19 Transmission, Says New Study

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  1. “copyrighted photograph of the famous Welsh poet”

    From 1937!!!

    By a photographer who died in 1967!

    Copyright held by a company which merely bought from the widow so its not starving orphans getting royalties.

    Pathetic that US law allows such a long copyright. It advances nothing creative.

    1. Agreed. But given that is the law, it is not surprising that the copyright owner did not go gentle into that good night.

    2. “Pathetic that US law allows such a long copyright. It advances nothing creative.”

      US copyright law (after the 1990s extension) is a mere 20 years longer than the Bern Convention* prior to that, it was the same. Prior to 1976 is was much shorter.

      Assuming your dates are correct, the copyright under the Bern Convention would only have expired in 2017.

      *The Bern Convention is an international treaty on copyright from 1886. The US didn’t become a signatory to the Bern Convention until the 1980s. The copyright term specified in the Bern Convention is life of the author + 50 years.

      1. The Berne Convention minimum for a photograph is different, only 25 years, and the clock starts when the photo is taken not when the photographer dies.

        1. And at any rate, the Berne Convention reflects the powerful interests that own copyrights. We could go back to being non-compliant with it.

          1. I don’t think the claim was “Berne made me do it”, it was that Berne represents a consensus lower bound among the 170 or so signatory countries and that the US term isn’t much above that lower bound so not exceptionally long.

            1. Berne is exceptionally long. Being above Berne is ridiculously long.

              Life of author + 20 years would be more than enough. Any minor children will be adults (and almost certainly out of college) at that point. Arguably it shouldn’t even be that long.

              Society has an interest in free use of this material, especially culturally relevant material. Being able to re-use, remix, and otherwise integrate copyrightable material into future works isn’t some inconsequential thing – it’s how cultures actually operate.

        2. I will agree that copyright terms are currently too long. Claiming that the US is somehow particularly bad on this front is Bull Shit!.

          1. Matthew, I understood your comment to say that the term of the US copyright on that photo is only a little longer than what Berne requires. That isn’t so, Berne would let the copyright expire in 1962 (actually earlier, there was no minimum for photographs until 1967 when the 25 year term was added), but thanks to Walt Disney and Sonny Bono it lives on to 2037. I will leave it up to you whether that means “the US is somehow particularly bad”, since I never said that, but if longer is worse then it is certainly much worse than WIPO mandates.

          2. Oops, that 2037 should probably be 2032. The rule for pre-1978 works, assuming the copyright was still alive then, is date of publication or registration plus 95. I’m guessing it was published the same year it was taken.

  2. Allegation: In 2016, Maryland Heights, Mo. officer pulls woman over for speeding, searches her car, and finds no contraband. Then a female officer conducts a roadside strip search and body cavity search. Eighth Circuit: No need to treat the strip search and body cavity search as separate searches. To trial this must go. 

    I’m trying to imagine a situation where a “roadside body cavity search” could be appropriate. I’m sorry. I can’t.

    1. To be fair, it appears that the police aren’t making that claim here.

      1. The police apparently did that here:

        “According to M.A.B., while she was still on the side of the road, Mason also subjected her to a more thorough search, including both a strip search and a body cavity search.”

        And lest you think the cops never do this, there’s a collection of youtube dashcam videos showing them doing exactly that:

        https://www.youtube.com/results?search_query=roadside+cavity+search

        1. Try reading to the next page:

          The parties dispute the extent of the upper-body strip search and whether the lower-body cavity search occurred at all.

          In other words, the police aren’t defending this case by saying the cavity search was justified: they’re saying it didn’t happen.

          (Obviously, I don’t have any idea who’s telling the truth about it—although since an affidavit from the plaintiff would have easily defeated summary judgment, its absence is perhaps suggestive.)

          1. Having reviewed the district court record, I would like to retract everything after the em dash.

            1. Were they already going to trial on the cavity search?

              1. Basically, yes.

                The plaintiff says that the officer digitally penetrated her vagina and anus u see her skirt, then had her raise her shirt and bra so she could feel her breasts (I think—the deposition testimony on this was a little hard to follow). The officer says that she did not penetrate the plaintiff at all, and that she patted down her breasts and shook her bra over her shirt. The officer argued that she would be entitled to qualified immunity on the bra part of the search even under the plaintiff’s version of events: both parties appeared to accept that there was a factual dispute about the cavity search that would preclude summary judgment either way.

                1. Why would you ever believe the cop on something like this?

                  1. Because the plaintiff has the burden of proof?

  3. While QI, as currently “interpreted” is an abomination, the summary of the 6th Circuit case is misleading.

    1. How is it misleading?

      And its’s not a summary of the panel decision on QI, but on the fully court rejecting an en banc re-hearing. The majority decision is only 1 paragraph.

      1. Because it implies that the beating was gratuitous.

        1. I read through the district court decision. I have to say, even crediting the police account as quoted in the decision the beating probably was gratuitous.

        2. Beating a man for being on his own porch because he won’t talk to you can possibly not be gratuitous? In what possible world? I can’t even imagine a situation where that isn’t gratuitous.

  4. I love how this roundup communicates quite clearly how awful a policy like qualified immunity is without telling you outright that this is a terrible policy. That’s how journalism should be done.

    1. Journalism should be done by giving tendentiously misleading summaries of a carefully chosen subset of stories to gin up support for your preferred policy outcomes?

      1. For someone without the time to read all the cases, which ones are misleading? (and to be clear this is a genuine request as I have found misleading ones myself previously so I don’t doubt it happens)

        1. You can start with the fourth circuit QI case, which omits the fact that the plaintiff stabbed one of the officers immediately before he was shot.

          1. Speaking of “tendentiously misleading summaries.” You realize the Fourth Circuit denied qualified immunity in that case because “[b]y shooting an incapacitated, injured person who was not moving, and who was laying on his knife, the police officers crossed a “bright line” and can be held liable,” right? As for the claim that he stabbed the officer, what the officer described was feeling a “scratch” and a “poke.” And I wonder how it was that, “[w]hen searching Jones’s lifeless body, officers found a small fixed blade knife tucked into his right sleeve” if he had it in his hand stabbing the officer? Plus, even if he did actually stab the officer, I don’t see how that would justify five police officers lining up in semi-circle around a man lying motionless on the ground and shooting him 22 times.

            1. It’s very clear that the panel did not believe that the officer had been stabbed. The problem is that they were legally required to believe it. Now, maybe you can still get yourself to the conclusion that qualified immunity is still unwarranted. But it’s still a pretty significant factor that would be included in a fair description of the facts.

              (For what it’s worth, I think that it’s a tragedy that this guy was killed, and the police bear the complete moral responsibility for unnecessarily escalating the situation: in the unlikely event they are capable of remorse, they should be haunted by their actions till the day they day, and they would never work in law enforcement again were in charge of maintaining the standards. But once the plaintiff used deadly for on them, I have trouble seeing how it was unconstitutional for them to use deadly force back.)

              1. “Now, maybe you can still get yourself to the conclusion that qualified immunity is still unwarranted.”

                Well, the Fourth Circuit and I.

                “But it’s still a pretty significant factor that would be included in a fair description of the facts.”

                I would agree with you if this is one of the cases where the court granted qualified immunity, but how does that fact make a difference when the court denied qualified immunity? Especially since, as you say, it’s clear that the panel does not believe that he actually stabbed the officer.

              2. They aren’t legally required to believe it. In fact it is the exact opposite. The cop is moving for summary judgement on QI grounds (really any grounds and it is the same). All disputed facts are held against the moving party, not for. So if there is a genuine dispute about whether he was stabbed they are legally required not to credit that.

                1. Can you elaborate on how that standard might change if the fact in question has been admitted by the adverse party under Fed. R. Civ. P. 36?

                  1. Didn’t read the case until now. If they admitted (or in this case if it’s deemed admitted) then you are correct the court must except it as true. Reading the opinion it is pretty clear they did consider it as true and determined that didn’t change anything as the relevant question is the state he was in at the time of the shooting, not what he did prior.

                    (and as an aside missing that deadline and therefore admitting that and seemingly failing to timely object waiving it’s right to appeal is about as clear a case of malpractice as you can find)

                    1. I should clarify that the facts that must be construed against a moving party are only those that are genuine issues of material fact. If it is admitted, even deemed admitted, there is no legally genuine issue.

              3. But once the plaintiff used deadly for on them, I have trouble seeing how it was unconstitutional for them to use deadly force back.

                Because there’s no retaliation provision of the Fourth Amendment. The issue is not whether he had used deadly force on them — something that was not “admitted,” by the way¹ — but whether he was a threat to them at the time they fired. If he had poked an officer with a knife earlier but was then lying motionless on the ground with the knife under him, they had no right to use deadly force against him. The 4A permits the use of deadly force in self-defense or defense of others, or to prevent a dangerous felon from escaping. Neither of those were at issue.

                ¹What was “admitted” was that he had stabbed them with some form of knife, which could’ve been anything from a recently-sharpened butcher’s knife (deadly force) to a penknife (not).

                 
                And by the way, what the hell is wrong with the district court judge? Is she married to a police officer? How desperate was she to cover for the cops? Admittedly, failing to timely respond to RFAs — and then failing to explicitly move to withdraw them — is a huge malpractice issue for the plaintiff’s lawyer, but the plaintiff was two whole days late. So first the court deems them admitted and grants summary judgment. Then the Fourth Circuit tells her to rethink that. She says, “F.U.” and denies withdrawal, and grants summary judgment again. Then the Fourth Circuit calls for her to actually apply the correct summary judgment standard. She says, “F.U. again,” and grants QI.

          2. Your summary is the misleading one. It’s factually incorrect and inconsistent with the facts that are known.

        2. So, they’re not necessarily misleading, but the summaries leave out a lot of context, and the oversimplification can make them misleading.

          The real issue is the selection bias. They authors highlight the interesting and borderline cases, which is appropriate. However, the vast majority of cases are clear cut examples of “denied QI” or “obviously the police should get it and not be sued, so approved QI”.

          It’s similar to the “murder” problem in the media. The media highlights the murders that occur. Every day you see “murder murder, murder”. And if that’s all you read, you think that the US is a murder hellhole. But because the stories are from across the nation, through such a vast population, that the truth is far different.

          1. Like I said, I don’t doubt some of these summaries leave something to be desired from a legal perspective (similar to the McDonald’s coffee case in the media). I just didn’t which ones in this article those were.

            As to your point about case cherry picking, it’s going to be cases at the margins that really test what a legal doctrine does. But I would say many of these cases shouldn’t even be considered the margin, that is what is wrong with QI.

            I also personally don’t think there should be any QI. All officers should always be allowed to be sued for constitutional violations. It isn’t about punishment it is about redress. A right isn’t a right if it can’t be redressed. It is about what the plaintiff deserves, not the LEO. I am open however to agreements with the government agency they work for to indemnify and pay for the legal defense when it isn’t clear. The fight should be who pays, not whether there is payment.

            1. In regards to QI:

              Some reform may be needed. But abolishing it goes too far, in my opinion, and opens up things for abuse of the legal system for harassment.

              Let’s give you an example:

              Joe wants a new job at a hospital, and tries to get a recommendation from his previous employer, a federal hospital, and the supervisor there, Jack. Jack sends a recommendation not to hire Joe, because he views Joe as untrustworthy. Joe sues Jack, in Jack’s personal capacity, alleging Jack has violated his Constitutional rights.

              Jack brings up QI as a defense to simply dismiss. Jack was performing a discretionary actions performed within his official capacity. But should this go to full trial, in front of a jury, instead?

              1. “But should this go to full trial, in front of a jury, instead?”

                Yes. Next question.

              2. If there is a genuine question of whether he violated the rights of the person. Remember general summary judgement still exists. Further questions of law can still be answered before trial. So if the judge says that even taking the facts in the light most favorable to the plaintiff there is no constitutional violation then it is dismissed as a matter of law.

                I don’t see how there is any more potential for abuse here than any other cause of action. And if it becomes a problem a fee shifting statute for cases totally without merit can address that.

                Why shouldn’t someone be compensated for a violation of his/her constitutional rights?

              3. “Joe wants a new job at a hospital, and tries to get a recommendation from his previous employer, a federal hospital, and the supervisor there, Jack. Jack sends a recommendation not to hire Joe, because he views Joe as untrustworthy. Joe sues Jack, in Jack’s personal capacity, alleging Jack has violated his Constitutional rights.”

                First, Joe is plain out of luck because Section 1983 doesn’t allow for lawsuits against federal agents and there’s no way the Supreme Court will extend Bivens far enough to cover adverse employment recommendations.

                Second, even assuming Joe used to work for a state hospital, rather than a federal one, exactly which right is he claiming Jack violated? I’m guessing Jack wins on a motion to dismiss.

                  1. Siegert failed to allege the violation of a clearly established constitutional right — indeed, of any constitutional right at all — since, under Paul v. Davis, 424 U. S. 693, 424 U. S. 708-709, injury to reputation, by itself, is not a protected “liberty” interest.

              4. Jack brings up QI as a defense to simply dismiss. Jack was performing a discretionary actions performed within his official capacity. But should this go to full trial, in front of a jury, instead?

                Not necessarily. Jack could well be entitled to summary judgment. But there’s no reason Jack’s entitlement to summary judgment should be evaluated by a different standard than any other defendant’s entitlement to summary judgment.

                If the undisputed facts show that Jack violated Joe’s constitutional rights, there’s no reason Jack should be able to escape trial — let alone liability — solely because no court has previously ruled that what Jack did was unconstitutional.

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