Short Circuit: A roundup of recent federal court decisions

Invasive cavity searches, comprehensive phone searches, and acute jail conditions.


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

New on the podcast: eminent domain for private gain, phone searches at the border, and illegal structuring. Click here for iTunes.

Or click here to listen to a Kojo Nnamdi Show discussion of counterproductive, and frankly cruel, new rules for D.C. day care providers that are the subject of an IJ lawsuit.

  • Family of man shot and killed by gov't agents sends wrongful death claim to FBI. Yikes! Actually, ICE agents killed him. The family sends claim to ICE on July 24; it arrives on July 28 at 7:22 p.m., the last day of two-year deadline to file, but agents do not come into actual possession of the mailing until August 1. District court: Which is too late; the family can't sue. First Circuit: Maybe it can.
  • Allegation: NYC cop forces drunk driving suspect into cell, slams his head into brick wall, metal bars, leaving him bloody and unconscious. Officer: Didn't do that; his injuries were self-inflicted. Jury: The officer used excessive force, but no damages need to be paid. Second Circuit: Which is seemingly inconsistent, but could be the jury thought the officer used excessive force maneuvering the suspect into the cell but didn't think the officer bashed his head or caused his injuries. No need for a new trial.
  • In 2016, Boyertown, Penn. school district adopts policy permitting transgender students to use the bathrooms and locker rooms for the sex with which they identify. Other students: Which violates our right to privacy. District court: No need to enjoin the policy while challenge to it goes forward. Third Circuit (30 minutes after oral argument): Affirmed. Written opinion to follow.
  • Career offender gets caught with lots of marijuana; he skips the country, gets married and has child in Thailand. He's brought back, given 20 years. Offender: My co-conspirators got only five years; my sentence is cruel and unusual. Fourth Circuit: We have misgivings about long sentences for marijuana, but the issue wasn't preserved for appeal, and your co-conspirators aren't career offenders.
  • Allegation: Virginia law traps low-income motorists in a catch-22; failure to pay court fees automatically results in the suspension of one's driver's license, which frustrates plaintiffs' efforts to earn the money necessary to pay the fees. (Study: One in six Virginia drivers has a suspended license thanks, in part, to court debt.) District court: The suit is barred on several procedural grounds, including the Rooker-Feldman doctrine. Fourth Circuit: None of which are appealable. Maybe amend the complaint? Dissent: The suit should not have been dismissed. (IJ amicus: Federal courts undermine constitutional rights by their overly aggressive application of Rooker-Feldman.)
  • Allegation: Border Protection agents detain U.S. citizen returning from Mexico. After a frisk, drug doggie sniff, and visual inspection of her private parts yields no evidence of drugs, she is taken handcuffed to El Paso, Tex. hospital where X-rays also reveal no drugs. Without her consent, two doctors and two nurses probe her cavities: no drugs found. Fifth Circuit: She can't sue the doctors or nurses.
  • Allegation: Madison County, Ky. jail officers beat up arrestee, causing nerve damage that will require surgery. Sixth Circuit: His suit should not have been dismissed. Several officers' on-camera jokes about being fired or indicted add an "unpleasant gloss" to the case.
  • Detroit elementary school principal receives kickbacks for allowing contractor to short the school of supplies. She's convicted, sentenced to two years. Principal: I wasn't allowed to present evidence at trial that, in addition to massages, I spent the kickbacks on fixing the school's roof, among other school-related things. Sixth Circuit: Conviction affirmed.
  • Allegation: Suicidal pretrial detainee spends months in Brevard County, Fla. jail crammed barefoot in 9-by-15 cell exposed to the urine, feces, semen, blood, and vomit of up to seven cellmates. Eleventh Circuit (over a dissent): Qualified immunity for the officer in charge; such conditions do not violate the Eighth Amendment, and, even if they did, the officer wouldn't have known that. Moreover, plaintiff didn't show that the officer was aware of said conditions.
  • Informant testifies against drug suspect, who's convicted in 2004. He appeals unsuccessfully. Yikes! In 2011, prosecutors disclose information (which they'd purportedly just learned) that could have been used to cast doubt on the informant's testimony. Eleventh Circuit: We should reconvene en banc and overturn the precedent that prevents the suspect from pursuing a second appeal.
  • Breaking with the Fourth and Ninth Circuits, the Eleventh Circuit holds: The gov't can seize any and all travelers' electronic devices at the border and undertake comprehensive searches of said devices without any individualized suspicion of wrongdoing. (We discussed the Fourth Circuit's ruling on the podcast.)
  • Defense attorney has sex with two clients while they are detained in Duval County, Fla. jail in exchange for reduced legal fees, money. Florida Bar: We recommend suspending his license to practice law for 18 months. Florida Supreme Court: No, he's disbarred.
  • State law from 1967 requires California's table-grape growers, who believe their grapes are superior in quality and price to run-of-the-mill grapes, to pay for generic grape advertising. Unconstitutional compelled speech? California Supreme Court: No, it's government speech, so the state's constitutional protections for speech do not apply. (NB: The Ninth Circuit reached the same conclusion under the First Amendment in 2009.)
  • In 2016, the FDA promulgated a 499-page "Deeming Rule" for cigars, which, among other things, bars new products from the market without prior FDA approval, which is costly and cumbersome to obtain and will, plaintiffs say, effectively bar smaller manufacturers from the field. District court: No need to address that, as the new Administration may revoke the requirement. But a separate provision requiring health warning labels on cigar boxes and advertisements does not violate the First Amendment.

In 2014, Pagedale, Mo. code enforcement officers handed out two tickets for every household in the city for violations like tall grass, peeling paint, sagging pants, and front-yard wading pools. Last week, in response to an IJ lawsuit, the city agreed to cease, in the words of the St. Louis Post-Dispatch, "preying on citizens" with such "contrived" citations. Read more here. This week, IJ filed a new federal lawsuit against Doraville, Ga. officials who "prowl the streets with iPads, ready to document the slightest infraction," like cracked driveways and improperly stacked wood, seeking to generate revenue. Read more in Curbed.

NEXT: Tavis Smiley Libel Claims Against PBS Thrown Out

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  1. The court’s ruling in the Brevard County case – the one with the suicidal inmate – is ridiculous, and the actual decision is offensive. Gee, they say,

    “There is no doubt that the facts of this case, when viewed in Saunders’ favor,
    paint a disturbing picture of confinement in the Brevard County Jail. Taking
    Saunders’ allegations at face value, we have evidence of densely packed cells and
    undoubtedly difficult living conditions. We take none of this lightly.”

    They don’t take it lightly. What a load. The whole decision reads like that. “Oh yes, this was terrible, but not an 8th Amendment violation. Oh yes, that’s awful, but not..” They should leave the phony sympathy out and just say they don’t give a FF.

    1. Agree with bernard11 & the dissenter. I’d say the opinion was dripping with crocodile tears throughout but that would demean crocodiles. If the system as a whole doesn’t consider (for example) frequently sleeping amid feces and urine to be cruel and unusual punishment, the system as a whole needs fixing.

  2. About the Pagedale, Mo. and Doraville, Ga. code enforcement. It’d be interesting to do a survey and find out the dominant political party running municipalities who do this sort of stuff.

    1. And to answer my own question, around 77% of registered voters in Doraville are Democrats.

      1. So it’s all Obama’s fault. Right?

        1. No, not in this case. It’s the fault of idiot voters who continue to vote for Democrats. But then, they get the government they deserve.

          1. Well, I agree that voters have responsibility for their government, and the situation in Doraville – probation for a cracked driveway? – is pretty bad.

            But before we blame decades of Democratic misrule for the problem let’s note a few things.

            First, the situation in Doraville is a recent development, not, AFAICT, a long-standing problem. Have the voters even had a chance to throw Mayor Pittman out since this started? Let’s also ask if elections there are conducted on a partisan basis. Regardless of that, if Pittman is re-elected then the voters are indeed fools.

            Second, again reading through some links, the problem appears to be widespread, manifesting itself in many forms.

            Third, I’ll just note in passing that a recent “Short Circuit” post included a case where Maricopa County, AZ was trying to get from under some financial problems caused by the very long-term misrule – starting in 1993 – of Trump’s favorite sheriff, Joe Arpaio. When I expressed a lack of sympathy for the county because they had left Arpaio in office for 24 years I got some pushback about the unfairness of it all – not, IIRC from you or Lee Moore – but some regulars.

            1. “When I expressed a lack of sympathy for the county because they had left Arpaio in office for 24 years I got some pushback about the unfairness of it all – not, IIRC from you or Lee Moore – but some regulars.”

              And you found the pushback so convincing that you figured you’d make the opposite argument on this topic?

  3. “Fifth Circuit: She can’t sue the doctors or nurses.” Another qualified immunity case. The decision includes:

    “[b]efore allowing discovery in a matter where qualified immunity is alleged, the district court must first find ‘that the plaintiff’s pleadings assert facts which, if true, would overcome’ a qualified immunity defense.” … Bustillos’ claims could not overcome the clearly-established prong of the qualified immunity defense….

    If discovery had gone forward, maybe nothing useful to the plaintiff is discovered, in which case the defendants are not harmed, and the inconvenience of responding to discovery pales compared to the indignities the defendants imposed on the plaintiff. Or maybe discovery reveals evidence supporting the plaintiff’s case enough to defeat qualified immunity, but even if not, this evidence might help mobilize public and political will to change the law, or it might help the court draw better bright lines on what warrants should be required before medical personnel conduct intrusive searches. Maybe precedent on qualified immunity is overwhelming, but to America, the court says, “I can’t see you, I’m covering my eyes.” If the Court of Appeals for the 5th Circuit felt it could not overcome established precedent on qualified immunity, at least they could have noted that qualified immunity stands in the way of justice and that this is yet another in a growing mountain of cases that scream for an overhaul.

    1. My original draft of this comment was longer, and each time I clicked “preview” nothing happened. I guessed that my blockquote…/blockquote was the problem; it wasn’t that, it was only length. I cut and cut until preview accepted it, but this was tedious, plus I had to omit things that would have made my point better. It would be much better if, upon previewing a comment that’s too long, the system responded by stating the exact problem; better yet, there could be a displayed character count and character limit; on, it says in the lower right corner of the comment entry box, “2000 characters remaining” and the number decrements as you type. Could we please have a 2000 (or greater) character limit here also, and a counter?

      1. The comment system here isn’t good (though still better than WaPo), but it never changes. They did add a “report spam” button a year or two ago. Not that it does anything.

    2. “If discovery had gone forward, maybe nothing useful to the plaintiff is discovered, in which case the defendants are not harmed, and the inconvenience of responding to discovery pales compared to the indignities the defendants imposed on the plaintiff.”

      I’m pretty sure that the qualified immunity jurisprudence considers participation in a lawsuit significant damage to a public official, which is why they can get out before discovery.

  4. In the Puerto Rico wrongful death FTC case, the plaintiff’s lawyer seems to have made a number of really awful mistakes. Not the least of the problems was sending a claim by regular rather than express mail a few days before it was due which practically invited it to arrive late. And the plaintiff’s lawyer didn’t raise equitable tolling and several other rather obvious arguments. The claimants’ lawyer doesn’t seem to have taken the idea that if they didn’t get the piece of paper in on time the government would pounce on them and they’d lose everything until after the district court granted the government’s motion to dismiss, and by then it was already too late for most of their arguments.

    Perhaps they had some sort of naive idea that the government was here to help them or had some sort of interest in justice.

    1. Not to mention having trouble determining the appropriate agency, then sending it to the wrong address before finally sending it to the right address; all of which caused it to be delivered after COB on the last day.

      1. Are “postmarks” no longer a thing?

        1. At least some (and I suspect many) statutes requiring notice to the government state that notice doesn’t happen until the document is received by the government rather than when it was sent. Some even suggest that you are responsible for the government’s delays in processing the mail by requiring the receipt to be the appropriate department rather than simply the mail room.

  5. On the Virginia drivers’ license suspension case, it may be that the only option to challenge the law is to look for an especially sympathetic and cooperative individual facing suspension for failure to pay with no standing or detrimental collateral issues, go to traffic court fully lawyered up, challenge to the constitutionality of the law facially and as applied, and expect to have the challenge denied and appeal the challenge through the Virginia state court system.

    I think the Virginia law making the courts responsible leaves no alternative. Under it the DMV is merely obeying a judicial order and hence is not subject to suit, and of course the judges themselves have absolute immunity.

    I think this approach successfully insulated the relevant Virginia state authorities from federal lawsuits, and hence the majority decision may not be fair, but it does reflect the state of the law. For that reason, organizations looking to challenge the situation should bite the bullet, find a suitably sympathetic defendant to defend, and take their claims to state traffic court and pursue them there.

  6. “Defense attorney has sex with two clients”

    For some reason my opinion on this hinges on whether or not these women are prostitutes.

    I suppose that if they were prostitutes, they wouldn’t have filed a complaint. Or perhaps this all hinges on the “observation” that he had sex with them while they were still in jail?

    Dude has serious … balls.

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