Short Circuit: A roundup of recent federal court decisions

Bathtime photos, forfeiture shenanigans, and a wine caper.

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

This week, Alabama legislators introduced a bill that would eliminate civil forfeiture, meaning the state would no longer be able to take property from people acquitted of—or never charged with—a crime. Over at Forbes.com, IJ Legislative Analyst Nick Sibilla has the story.

• Among many other indignities that Providence, R.I. firemen heap on female colleague, station cook gives her meals that make her sick. (When she switches plates with another colleague, he gets sick.) She files 40 different written statements complaining of harassment, discrimination, and retaliation to higher-ups. First Circuit: No need to reconsider the jury verdict in her favor or her $700k award.
• Despite plentiful plaintive pleas for a speedy trial, Cattaraugus, N.Y. man spends seven years in jail awaiting trial (for large marijuana grow). Second Circuit: Which, so far as we know, is a new record in this circuit. It's also an "egregiously oppressive" violation of the Sixth Amendment. Conviction reversed. He's a free man.
• Federal law requires federally licensed handgun dealers to sell only to the residents of the state where the dealer is located. D.C. residents: The sole licensed dealer in D.C. has no inventory, just charges a fee to import guns from other dealers. We want to buy directly from a dealer in Texas. District court: The law is unconstitutional. Fifth Circuit: Reversed. It satisfies strict scrutiny. Can't expect dealers to understand each states' multifarious gun restrictions.
• Ohio's requirement that coin and jewelry dealers allow warrantless inspections of their businesses at all times violates the Fourth Amendment, says the Sixth Circuit, as it gives inspectors too much discretion to search whatever they will. (Other provisions authorizing warrantless access to specified records, so as to check trade in stolen property, pass constitutional muster, however.)
• After man is acquitted of manslaughter, Franklin County, Ohio sheriff delays his release in order to administer DNA cheek swab. A Fourth Amendment violation? Sixth Circuit (2015): State law didn't require the swab; the sheriff is not protected by sovereign immunity. Sixth Circuit (2018): Though the man has died, the case isn't over; his mother can proceed.
• Wilson County, Tenn. probation officer is fired for (allegedly) lying in court. A violation of her First Amendment rights and/or the Tennessee Public Employee Political Freedom Act? The Sixth Circuit says no.
• Mentally ill inmate at Marquette, Mich. prison repeatedly swallows razor blades. He's placed in solitary confinement rather than the mental health unit. Were officials deliberately indifferent to his medical needs? Yes, if the inmate's allegations are true, says the Sixth Circuit.
• Allegation: Evansville, Ind. and Kentucky state police deliberately coerced false confessions out of teenagers whose uncle's body was found in the Ohio River—near bridge where he'd threatened to commit suicide several times. Later, officers file false reports that corroborate the confessions. (Charges against the niece are dropped. The nephew is acquitted on all counts.) Seventh Circuit: No qualified immunity for the officers.
• Arkansas state police relieve truckers of $579k cash at traffic stop. (No charges filed.) The trucking company asserts ownership of the cash, seeks its return. Eighth Circuit: In other circuits that would be enough to initiate a forfeiture challenge. But here claimants must explain in some detail how they came by the cash, which the company did not do to prosecutors' satisfaction, and thus may not pursue the money.
• Peoria, Ariz. parents take completely innocent nakey photos of their young children, so in years to come they can reminisce, "look at their cute little butts." Child services take the children without a warrant or court order. The kids spend two days in foster care and a month with grandparents before they're allowed home. (According to news reports, the mother was suspended from her job for a year). Ninth Circuit (with four separate opinions): No qualified immunity for the social workers.
• A refresher on jury nullification from the Ninth Circuit: Judges may tell jurors that it is a violation of the law for them to acquit a guilty defendant if they believe defendant's conduct should not be illegal. What a judge may not do is imply that jurors will face punishment for violating the law or that their verdict will be thrown out if they acquit.
• Colorado prison officials decline to pay $50 awarded to inmate in 2005. Officials: Because he has failed to report the award to the IRS. Tenth Circuit: That is not a requirement that exists.
• Denver physician pays $1mil via credit cards for wine, pays off the balance on the cards. Yikes! The wine seller turns out to be a crook; the physician never receives the wine. Must the credit card companies refund him? The Tenth Circuit says no.
• After stealing $5 and a bottle of cologne, 63-year-old San Francisco man is arrested. Bail is set at $350,000, which he cannot possibly pay. California Court of Appeals: Unless the government can show that he's dangerous, they can't keep him locked up merely for being too poor to afford bail.
• Pennsylvania motorist arrested for DUI spends nine months in jail (allegedly causing him to be expelled from university) before a state judge reviews dashcam footage and is unable to detect the unsignaled lane changes that police say they pulled him over for. Without probable cause for the stop, the evidence is suppressed and charges withdrawn. The man sues the police in federal court. District Court: The state court ruling does not preclude the officers from arguing in federal court that the stop was reasonable.
• And in en banc news, the First Circuit will reconsider its decision that the governor of Maine is immune from a retaliation suit that alleges he threatened to withhold discretionary funding from a public charter school if it hired his political enemy. The Ninth Circuit, however, will not reconsider its decision that a former high school football coach had no First Amendment right to conduct prayers at midfield after games.

In Maryland, it's illegal to sell homemade food except at farmers' markets and special events. But there's precious little evidence that and other restrictions on cottage foods are necessary to protect public health and safety. We say that the state should ease restrictions with no public health justification, so as to encourage entrepreneurship in the industry (which nationally is overwhelmingly made up of rural women with below-average incomes). If you agree, please join us this Tuesday in Baltimore to learn more about the laws and how you can get involved. Click here for more.

Comments

[ActualRightWingPatriot]

First, making a person prove that he had money legally violates the Constitution, regardless of what these political hacks rule. The Constitution explicitly protects a person from being deprived of PROPERTY. Second, the 5th Circuit gun case is outrageous, especially from a "conservative" judge like Owen. The fact is, strict scrutiny is not satisfied because the government is too lazy or incompetent to set up a system that would make it easy to determine who was eligible to buy a handgun and who was not. The standard is "least restrictive means necessary." If it's only necessary because of government nonfeasance, that isn't necessary.

[David Bremer]

Regarding the 8th Circuit case, first, you assume the conclusion. The whole point of the action was to determine if the currency was LNG Express's money. You just assume that it was. Second, there's nothing unconstitutional about requiring a party to give some more detail when initiating an action to recover money.

[ActualRightWingPatriot]

I'm not referring to the legal issue in the case specifically, but the idea that the government can seize large sums of cash in general without any due process, and to require that you prove that it's not illicit.

[David Bremer]

I agree, but that argument would be a lot stronger if the truck's drivers hadn't both disclaimed the money.

So basically, the officer had come across nearly $600,000 with no owner. And, since LNG's claim didn't include enough information, we still don't know who actually owned the money. Once that's been established, we'll be in position to discuss the merits of this type of forfeiture.

[dantheserene]

Well, the officer wasn't the owner, so if he took it I'm comfortable calling it armed robbery. Add "under color of law" if you think that sounds better.

[MatthewSlyfield]

"And, since LNG's claim didn't include enough information"

I would call the fact that the cash was in their trucks sufficient to support their claim.

"we still don't know who actually owned the money. Once that's been established, we'll be in position to discuss the merits of this type of forfeiture."

Who owns it is irrelevant. It's not like it was sitting out in a public place where it could be deemed abandoned.

The forfeiture of cash with no specific suspicion of illegal activity just because the identity of the owner is not readily apparent has zero merit. No further discussion needed.

[nonzenze]

I'm posting this just to further the discussion.

[David Bremer]

I agree that it's pretty good evidence that LNG probably had an interest in the money. But they could have said it. Instead, LNG just said that it had a "claim to, interest in, and right to" the money. The rule says you have to give a little more information. I don't have a problem with that rule, and know that if I had $579,000 in cash, I'd be happy to give a bit more of a description for it.

And who owns it is absolutely relevant. It's what gives a person standing to challenge the validity of the forfeiture. Otherwise, I could walk in and claim the money.

Take the whole forfeiture angle out of it. Say the government is going to give it back or, if unclaimed, to some charitable cause. I'm still not upset by a rule that says you need to give more explanation that just saying the money is yours. Even if it is found on your truck. For example, who's to say it didn't belong to the last driver of the truck? Or someone who placed it there without the company's knowledge (thinking that someone would get it on the other end)?

[jph12]

"Instead, LNG just said that it had a "claim to, interest in, and right to" the money."

No, they specifically claimed to be the owner: "is all of the right, title, and interest in said defendant-in-rem as the owner thereof."

"The rule says you have to give a little more information."

The Rule doesn't. Bad interpretations of the Rule by the Eight Circuit do (at least in this case--it's possible the one that it is based on isn't as bad). But still bad lawyering not to comply. Of course, it should be correctable in an amended complaint, so hopefully it's much ado about nothing.

"I'm still not upset by a rule that says you need to give more explanation that just saying the money is yours."

I'm upset that the courts are pretending that there's a relevant difference between "I own the money" and "I own $X", or "I own the money" and "I own the money because I earned it."

[Absaroka]

"... the last driver of the truck? Or someone who placed it there without the company's knowledge (thinking that someone would get it on the other end)?"

That might depend on the state. My better half once found a baggie with a few hundred bucks and half a driver's license on the side of the road. We called the gendarmes, who did whatever they do to try and find the rightful owner. After N (6??) months they dropped by the house and handed us the cash. So, in Washington State, anyway, it doesn't seem that the police can just keep money from unknown owners.

I would argue that money of unknown origin ought to go to just about anyone before going to the police, just to avoid even a hint of conflict of interest.

[David Nieporent]

If I took property out of your truck, and then when you asked for it back said that I was keeping it unless you proved to me that it was yours because it could possibly instead belong to the last driver of the truck, what do you think would happen to me?

[MatthewSlyfield]

"And who owns it is absolutely relevant. It's what gives a person standing to challenge the validity of the forfeiture."

But it's not relevant to the governments authority to seize and forfeit the cash in the first place.

It ought to be enough that the cash was in the possession of the trucking company.

"Take the whole forfeiture angle out of it. "

No. Without a legitimate cause for forfeiture the government has no right to possession of the cash or any right to control the disposal / disbursement of it.

It should go back to whomever last had possession of it (the trucking company).

[David Nieporent]

The whole point of the action was to determine if the currency was LNG Express's money.

Well, no. The whole point of the action was to determine if the currency was forfeitable. It doesn't matter whose money it is, otherwise. Whether the money was LNG's was a threshold issue, but not the point of the action.

Second, there's nothing unconstitutional about requiring a party to give some more detail when initiating an action to recover money.

There's something unconstitutional about taking someone's property without due process. And inventing requirements that are not actually found in any statute or rule is not due process.

[David Bremer]

Fine, I was a bit loose in my language. The case was decided at the pleading stage because LNG didn't establish its interest in the money. Just like you must plead standing or jurisdiction, so must you also establish an interest in the cash. The whole point of the preliminary motion is that LNG failed to do so.

On the second point, let's agree. Now find the plaintiff with standing to challenge that. Because LNG failed to plead sufficient facts to establish its interest in the money. (And, had your read the case, you'd know that the there is a rule requiring that pleading - Fed. R. Civ. P. Supp. R. G(5).)

[David Nieporent]

(And, had your read the case, you'd know that the there is a rule requiring that pleading - Fed. R. Civ. P. Supp. R. G(5).)

As other circuits have found, G(5) doesn't say any such thing. It has only two content requirements: (a) the property must be identified, and (b) the claimant must identify himself and state his interest in the property. Iqbal/Twombly pleading requirements don't apply; all you have to say is "I own it." (To be fair, the panel here seems to think those other circuits may be right, apologetically noting that it can't overrule circuit precedent.)

[Bored Lawyer]

" It satisfies strict scrutiny. Can't expect dealers to understand each states' multifarious gun restrictions."

But if an individual brought a gun in from another state where it was legal, you bet your bottom dollar that his inability to understand "each states' multifarious gun restrictions" would not be a defense.

IOW, ignorance of the law is no excuse, unless you want to uphold a govt restriction, in which case, gee, look at all those ignorant gun dealers.

[ActualRightWingPatriot]

And since the vast majority of states have no rules regarding the purchasing of handguns beyond passing the federal check, it would be much easier to flag the states that have other requirements.

[ActualRightWingPatriot]

And since the vast majority of states have no rules regarding the purchasing of handguns beyond passing the federal check, it would be much easier to flag the states that have other requirements.

[Patrick Henry, the 2nd]

Just another way for a court to get out of doing its job.

[KevinP]

Yep, another gun control rubber stamp Federal Court.

[ReaderY]

I understand that in a civil forfeiture case, the law requires more of people initiating a claim than a bare assertion that they own the money. However, it seems to me that the fact that one owns the container or location where the money was found is easily enough to distinguish one from a member of the general public, create a plausible nexus with the money, and make out a prima facia case sufficient to get a hearing.

The law should not require detailed pleadings just to be able to get into court. The hearing is where the details should come out.