Short Circuit: A roundup of recent federal court decisions

Sanctuary cities, the fiduciary rule, and iced coffee.

Since 2009, Tennessee officials have levied nearly $100,000 in fines on African-style hair braiders—not for any health or sanitation violations but simply for operating without a license. The license, which takes 300 hours to obtain, creates real hardship for braiders and doesn't much benefit the public, so it's welcome news that a bill to repeal it is advancing in the Legislature. IJ Legislative Analyst Nick Sibilla has the story at Forbes.com.

• Man is convicted in 2004, sentenced to life for pair of Woodbine, N.J. robberies where victims were tied up, threatened. Third Circuit: New trial or set him free; his attorney rendered ineffective counsel by failing to question detectives' handling of "the one piece of tangible evidence" tying the man to the crime (a cigarette butt purportedly found at one of the crime scenes that could actually have come from his home).
• Under South Carolina's "Disturbing Schools Law" and "Disorderly Conduct Law," kids as young as 7 have been arrested for cursing, refusing to follow directions, or getting into minor scuffles. So the kids challenge the law. Fourth Circuit: And their lawsuit should be allowed to go forward.
• On personal blog, prosecutor writes a series of posts on litigious political activist with a criminal past; the activist complains to the prosecutor's superiors; the posts are not altered. A still-unidentified hoax caller then triggers a SWAT raid of the prosecutor's home. District court: The activist cannot sue the prosecutor for seeking to have him investigated for playing a role in the hoax. Fourth Circuit: That's so.
• Allegation: Manassas City, Va. detective (an alleged child molester) compels 17-year-old to masturbate in front of armed officers so as to compare his erect penis with illicit images sent to the teen's 15-year-old girlfriend. District court: Qualified immunity. Fourth Circuit (2017, over a dissent): Reversed. The detective violated the teen's Fourth Amendment right of privacy and should have known it. Fourth Circuit (2018, on dueling petitions for rehearing, also over a dissent): So actually, we vacate rather than reverse the district court on that point. Also, it's possible the detective's actions amounted to creating child porn, for which the 17-year-old can seek recompense (a claim previously dismissed). (We discussed the 2017 ruling on the podcast.)
• In areas zoned for single-family living, Salisbury, Md. forbids more than two unrelated persons from living together. Officials: So landlord renting house to two brothers and a friend is breaking the law. District court: The ordinance is unconstitutionally vague. Fourth Circuit (2016): Is it? District court: It's not. Fourth Circuit (2018): The renters have moved out; case is moot.
• Texas law aimed at curtailing so-called "sanctuary cities" (wherein local officials limit their cooperation with federal immigration authorities) is challenged on a host of constitutional theories; district court enters preliminary injunction. Fifth Circuit: Which we now vacate; the law is constitutional, except for the provision that prohibits elected officials from "endorsing" sanctuary policies, which violates the First Amendment.
• In 2016, the Department of Labor enacted the "Fiduciary Rule," unsettling decades of practice by broadly reinterpreting the term "investment advice fiduciary" to subject hundreds of thousands of financial service providers in the market for ERISA plans and IRAs to stringent regulation. Fifth Circuit (over a dissent): Which they had no authority to do; the Fiduciary Rule is vacated.
• Blount County, Tenn. detective and prosecutor withhold exculpatory evidence in 2002 murder trial, so man's conviction is vacated in 2011. He's acquitted on retrial in 2015. Was the man's deadline to sue for prosecutorial misconduct a year after the vacatur or a year after the acquittal? The latter, says the Sixth Circuit, so his suit should not have been dismissed.
• Lima, Ohio police take sexagenarian drunk driving suspect to ground; one officer knees him repeatedly, fracturing a rib, when he doesn't produce his hands for cuffing (allegedly because they're pinned underneath him). Sixth Circuit: The knees were excessive force, but our precedent puts officers on notice not to beat people (who might be offering slight resistance) only in booking rooms—this was a traffic stop. The man can't sue.
• Former employee of red light camera company that bribed Chicago official (who is now serving 10 years) turns informant, seeks sizable cut of the $20 mil the company paid to settle the city's suit. Seventh Circuit: The chutzpah!
• When a reasonable person orders a 12-oz. iced coffee, do they expect a full 12 oz. of coffee—or some coffee and some ice in a 12-oz. cup? Los Angeles man: The former. Starbucks is defrauding its customers. Ninth Circuit: Not so.
• Suspect, already searched, is unarmed, sitting compliantly on the bumper of a squad car, and being watched over by an armed King County, Wash. officer. Nonetheless, another officer allegedly points a gun at the suspect's head and threatens to kill him. Is that so wrong? It's wrong, says the Ninth Circuit. So wrong? Not so wrong that every reasonable officer would have understood it was unconstitutional. Qualified immunity.
• Civil Procedure Exam Question: California Highway Patrolman punches septuagenarian in the stomach during a traffic stop, and jury returns a special verdict finding excessive force. Officer isn't as quick with his notice of appeal as he is with his fists, waiting 199 days to file. But the court's even slower, waiting 227 days to approve and enter judgment on the special verdict. Is the notice of appeal timely? Professor Ninth Circuit says "No"; judgment was "constructively" entered after 150 days.
• Allegation: After completing his sentence, man spends eight years in Los Angeles County jail awaiting word on whether he's to be deemed too dangerous to release. For more than six of those years, he's housed with criminal convicts, wearing a red jumpsuit that marks him as a sex offender, for which another inmate attacks him with a razor. Ninth Circuit: He can sue the then-sheriff (who is facing prison time for unrelated matters).
• Do the Articles of Confederation give rise to employment discrimination claims? They do not, says the Tenth Circuit.
• Eleventh Circuit: Wearing a mask in public is illegal in Georgia (with exceptions for Halloween, among other things), a measure meant to protect against "terrorization by masked vigilantes." So an allegedly peaceful protester arrested for wearing a Guy Fawkes mask can't sue Atlanta police. Dissent: That's not the law; wearing a mask in public is legal unless the wearer intends to intimidate people; "non-threatening political mask wearing" doesn't meet that standard.
• In a blog post, doctor suggests another doctor's method for treating Alzheimer's and other ailments (by injecting a drug used to treat arthritis along patients' spines) is quackery. Libel? Eleventh Circuit (2017): No, the purported quack's suit is a Strategic Lawsuit Against Public Participation. Eleventh Circuit (2018): And he can pay the blogger's legal bills—$260k.

Long one of the most important and vigorously enforced provisions in the Constitution, the Contract Clause was meant to bar states from retroactively altering contracts, which, apart from the unfairness of it, creates uncertainty in commerce and credit markets because businesses can't know if their agreements will be honored. But the Clause was largely read out of the Constitution in the 20th century, and now state legislators have relatively free rein to rewrite private contracts as they see fit. On Monday, however, the Supreme Court will consider a Contract Clause case for the first time in a generation, presenting the opportunity to revive this crucial property rights safeguard. Click here to read an IJ amicus brief, written on behalf of Vanderbilt prof James W. Ely, urging the Court to embrace the original meaning of the Clause.

Comments

[Beldar]

Mr. Ross, I write simply to commend you for your consistent crisp precision. This is laudably effective communication, and your efforts are indeed appreciated. Reading these posts is excellent CLE. Please carry on!

[M.L.]

Agreed!

[Rev. Arthur L. Kirkland]

I enjoy Short Circuit, but this praise seems unwarranted.

First, a number of commenters have described Short Circuit summaries as wrong or misleading, and review of the relevant underlying decisions generally has vindicated the objections. In one or two cases, Short Circuit has apologized and/or corrected its account.

Second, unless one reviews the underlying the decisions, it is difficult if not impossible to know whether these summaries involve accurate "precision."

I hope Short Circuit continues to illuminate important points. I also hope it becomes more reliable.

[TwelveInchPianist]

I'm still shocked that any judge thought that there was QI in the Manassas case. What the cop did was sexual battery under VA law. Can you perform sexual battery with a warrant?

"...an act committed with the intent to sexually... arouse, or gratify any person, where:
...
b. The accused forces the complaining witness to touch... the witness's own... intimate parts

[PoxOnBothYourHouses]

12inch: "I'm still shocked that any judge thought that there was QI in the Manassas case."

Why? We've got a case here where a victim can't sue because there was no prior ruling that specifically said a cop couldn't beat up a person at a traffic stop. I bet there's never before been a ruling that specifically said a cop can't force a kid to masturbate for him and the camera (and a local judge even signed the warrant to do it! Didn't someone here recently say judges should have absolute immunity? Revisit it.)

At least the officer who did this is dead -- killed himself when other police came to arrest him on charges of sexually abusing a couple of other teens. So there's that. The teen is suing his estate.

Here is a synopsis from a local news source

[bernard11]

Right.

I'm no fan of Cato, but bless them if they are launching an attack on this QI insanity. Some of these rulings are simply incredible - an embarrassment to the country. I suppose the judges who make them then give speeches about the glories of the law.

[TwelveInchPianist]

You're right, there's no point in being shocked by anything that the federal courts do.

But even though a court issued a warrant saying the cops could photograph the kid in a certain state, any cop, prosecutor or judge should know that you can't sexually assault him to put him in that state. And the forced manipulations failed to achieve their purpose.

Do you think Judge King would have written the same opinion if Detective Abbot had been a little more thorough and performed a little fellatio in order to execute the warrant? I mean, it's his duty to execute the warrant, right?

And I agree that we should abolish QI.

[santamonica811]

"Do you think Judge King would have written the same opinion if Detective Abbot had been a little more thorough and performed a little fellatio in order to execute the warrant?"

I don't know. Was Abbot the head detective? [rimshot]

[FlameCCT]

Ouch! That one is gonna hurt!!!

[Z Zap]

"So actually, we vacate rather than reverse the district court on that point."

Vacating is a lesser version of a reversal, right? So what kind of difference does this practically make?

[BillyG]

I checked cause I was curious about that myself. Vacating is the same as "reversing in total". Reversing can be "in part" or "in total". They originally "reversed in part" and "concurred/upheld in part" then changed to "complete reversal" (vacate).

[bernard11]

the [Texas] law is constitutional, except for the provision that prohibits elected officials from "endorsing" sanctuary policies, which violates the First Amendment.

What's this? Conservatives trying to violate the First Amendment? Unheard of!!

[BillyG]

One part of it ruled unconstitutional and you zoom in on it to all exclusion, while ignoring the long history of Democrats trying to violate the First amendment.

[JesseAz]

This totally validates the California law requiring pregnancy centers to advertise abortion.

[ActualRightWingPatriot]

"Lima, Ohio police take sexagenarian drunk driving suspect to ground; one officer knees him repeatedly, fracturing a rib, when he doesn't produce his hands for cuffing (allegedly because they're pinned underneath him). Sixth Circuit: The knees were excessive force, but our precedent puts officers on notice not to beat people (who might be offering slight resistance) only in booking rooms?this was a traffic stop. The man can't sue."

"Suspect, already searched, is unarmed, sitting compliantly on the bumper of a squad car, and being watched over by an armed King County, Wash. officer. Nonetheless, another officer allegedly points a gun at the suspect's head and threatens to kill him. Is that so wrong? It's wrong, says the Ninth Circuit. So wrong? Not so wrong that every reasonable officer would have understood it was unconstitutional. Qualified immunity."

Are these judges for real? Will they EVER deny qualified immunity unless the facts are IDENTICAL to past cases?

[Toranth]

2020 - Sixth Circuit: Precedent only tells officers not to beat people in booking rooms and traffic stops - this was a Terry stop.
2022 - Sixth Circuit: Precedent only tells officers not to beat people in booking rooms, traffic stops, and Terry stops. This was serving a warrant in a home.
2025 - Sixth Circuit: Precedent only tells officers not to beat people in booking rooms, traffic stops, Terry stops, and when serving a warrant in a home. This was after a pursuit on a sidewalk.
2031 - ...

[PoxOnBothYourHouses]

Toranth: Yeah, they can keep working until it all gets down to jaywalking, or maybe playing marbles in a park or something. And maybe not there, given that South Carolina arrests little kids "for cursing, refusing to follow directions, or getting into minor scuffles." Has there been a case that specifically says a cop can't beat up a kid who wouldn't follow directions?

Neil Gorsuch could be a real force for good here. He wrote a strong dissent in a case where all his colleagues were fine with an officer arresting a 13-year old for repeatedly burping in class. Qualified immunity again.

[PoxOnBothYourHouses]

But SCOTUS declined to hear the burping case

[Jason Cavanaugh]

And people wonder where such hatred and contempt for police officers could possibly come from.

"Officers of the law" are almost never even charged (and even more infrequently are they convicted) when they clearly violate it themselves. Honestly, you might as well assault police officers if they're trying to arrest you, because at least then you get your chance to fight back.

And yes, I'm quite aware of how that statement may alter perception of myself. I don't care. When a police officer can put his handgun to the side of a complacent suspect's head and threaten murder without repercussion, there is no such thing as justice anymore.

[PoxOnBothYourHouses]

JC: "Honestly, you might as well assault police officers if they're trying to arrest you, because at least then you get your chance to fight back."

Don;t go there. They'll shoot you.

[Brett Bellmore]

Right. Wait until later and ambush them off duty. Only when that starts being common will cops decide QI isn't worth getting whacked a couple months later.

Don't forget the judge.

[croaker]

Rule 308 will never be repealed.

[MatthewSlyfield]

"Are these judges for real? Will they EVER deny qualified immunity unless the facts are IDENTICAL to past cases?"

Yes, they are for real. No, they won't ever deny qualified immunity unless the facts are identical to past cases. The lower courts have been explicitly instructed by SCOTUS that when establishing rights for purposes of QI analysis, that they are to always do so as narrowly as possible.

This is a mess that SCOTUS created, and only SCOTUS or possibly Congress can fix it.

I say possibly, because I'm not sure that SCOTUS would accept an ordinary statute ending qualified immunity or if they would force Congress to amend the constitution to fix it legislatively.

[PoxOnBothYourHouses]

ARWP: "Will they EVER deny qualified immunity unless the facts are IDENTICAL to past cases?"

Apparently not.

Though -- in the Manassas forced-masturbation case, the teen is being allowed to sue the now-deceased officer's estate. Which could indicate progress. (the judge who signed the warrant, however, is in the clear)

[BillyG]

We've also got a cop threatening to commit 1st degree murder to a suspect and its ruled QI. I'm wondering what is going through these judges heads.

[Jerry B.]

Apparently, judges have a pretty low opinion of the mental competence of law enforcement officers, since they don't believe that the police should be able to tell if forcing a teen boy to masturbate in front of them, or pointing a gun at a compliant prisoner and threatening to kill them, is right or wrong.

[MatthewSlyfield]

It's not about right or wrong, it's about whether the officer was on notice that their actions violated the rights of the victim. And the Supreme Court has explicitly instructed the courts to construe the right at issue in any QI case as narrowly as possible.

Do no not blame district court judges or circuit court judges for this mess. Blame lies squarely in the lap of the Supreme Court.

[Jerry B.]

Then apparently the SCOTUS has a pretty low opinion of the mental competence of police if "I didn't know that threatening to kill a compliant prisoner would violate his rights, because no one ever specifically told me this.", is considered a valid defense.

[MatthewSlyfield]

No, their low opinion is of the gullibility of the rest of us.

[croaker]

Have you heard the expression "badge licker"?

[bernard11]

This is the first time I can recall agreeing with ARWP, but I do, 100%.

[santamonica811]

"...But the prior case only said that you can't beat up a peaceful suspect at a traffic stop on a TUESDAY AFTERNOON. No reasonable police officer could possibly have understood that this might also apply to a peaceful traffic stop on a Tuesday *morning.* Or, on a Thursday or Sunday afternoon. We'd need a whole new line of appellate cases telling us that. Till then, we need and deserve that QI."

The mind boggles. I have had several friends who were cops. I even dated one cop. But this line of judicial reasoning really infantilizes the police . . . saying that they are so brain-dead that they can't apply normal logic.

A disappointing ruling.

[MatthewSlyfield]

That line of reasoning has been mandated by SCOTUS.

The Circuit court panel made the only decision they could without all but guaranteeing that they would be reversed.

Unlike the victims in these cases, the cops, backed by the unions and their departments have nearly unlimited resources to pursue appeals, and it's almost a guarantee that it will be appealed to SCOTUS if they lose at the circuit court level.

[ThanksForTheFish]

"another officer allegedly points a gun at the suspect's head and threatens to kill him. Is that so wrong?... Not so wrong that every reasonable officer would have understood it was unconstitutional."

What the fuck. Proof there is no such thing as a reasonable officer anymore. Because no reasonable human would think pointing a gun at someone and threatening to kill them is anything but wrong.

[santamonica811]

ThanksFor,
Your intended point is clear enough (and likely shared by 99% of the posters at this site). But I'll point out the exception...no one, I assume, would disagree with a policeman--who is facing (let's say) an angry man slowly approaching with a knife, baseball bat, etc.--doing the above.

In that sort of case, I would *hope* that the cop would point his gun and yell out a threat to kill the person. The alternatives being (a) saying nothing, or (b) shooting without giving a warning when there was time to safely warn before firing.

[MatthewSlyfield]

" But I'll point out the exception...no one, I assume, would disagree with a policeman--who is facing (let's say) an angry man slowly approaching with a knife, baseball bat, etc.--doing the above."

I'll disagree with that. I note that you only said the person had a knife or bat or whatever and were approaching the officer. You did not specify that they were threatening the officer or otherwise acted in a threatening manner.

[tkamenick]

"Sorry, , the last case about police not being allowed to rip your arm off and beat you with it occurred on a Monday. It's not clearly established that they can't do it on a Tuesday."