Short Circuit: A Roundup of Recent Federal Court Decisions

Dinosaur mortal combat, the hose treatment, and the great high school impostor.


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

IJ was at the Florida Supreme Court this week arguing that a pair of programs, a scholarship for disabled students and a tuition tax credit, that allow 140,000 students to attend the school of their family's choice are constitutionally sound. Click here to read IJ Attorney Ari Bargil argue in the pages of the Orlando Sentinel that they are also wise policy.

  • Ship owner and operator are acquitted of dumping oil in the sea. (The ship's engineer gets convicted.) Did the feds unreasonably impound the ship (setting too high a bond for its release) during trial, thus requiring compensation for the owner? D.C. Circuit: Ooh, neat. Congress created this cause of action 40 years ago, but no one's ever tried to use it before. So, "sailing into uncharted waters," the feds win.
  • In Boston, people who want to carry a firearm for self-defense have to prove they have a "good reason" for doing so "beyond a generalized desire to be safe." A Second Amendment violation? First Circuit: The right to armed self-defense is focused on protection of hearth and home. The right to carry outside the home gets only intermediate scrutiny, which this law satisfies.
  • Second Circuit: There's having a close relationship with your dad, and then there's having such a close relationship that you give him insider-trading information. Luckily for this guy, he gets a new trial because he was wrongfully prevented from impeaching statements by his blabbermouth of a dad.
  • Allegation: Man's soon-to-be ex-wife and her Glens Falls, N.Y. cop boyfriend fabricated claims of abuse and other wrongdoing against him; he's arrested and charged with various crimes. Can he sue for malicious prosecution? He cannot, says the Second Circuit. His complaint failed to plead that the charges were dismissed in a way that affirmatively indicated his innocence, which is a necessary element of any federal malicious prosecution claim.
  • College-age Ukrainian exchange student overstays his visa, enrolls as freshman at Harrisburg, Penn. high school. He keeps up the charade into senior year, earning academic honors and praise from the mayor. He also dates a girl seven years his junior. He's caught, incarcerated, deported. Third Circuit: There's no reason to reduce five-month sentence for American woman who "adopted" him, reaping inappropriate Social Security payout, tax benefits. (Click here for some longform journalism.)
  • Woman fails to pay traffic ticket, is arrested for driving on a suspended license. She's strip searched in front of other detainees and gets "the hose treatment" (delousing) at Cleveland jail. Sixth Circuit (2014): Which is dehumanizing and perhaps a Fourth Amendment violation. This case should go to trial. Sixth Circuit (2018, over a dissent): Group strip searches expedite the intake process, which is good, and lice are bad, so this is all fine. (The jail has since been closed, and compulsory delousing halted.)
  • Allegation: Burglary suspect hides from Nashville police in basement of abandoned home. They order him to reveal himself; he remains quiet. They discover him; he raises his hands to surrender; they release dog, which bites him. Excessive force? District court: No qualified immunity. Sixth Circuit: Reversed. It's not clearly established that setting a police dog on a suspect in these circumstances is unlawful. (Nor is it now clearly established.)
  • Allegation: Truck driver declines to pay cash bribe solicited by Merrillville, Ind. officer in exchange for voiding parking ticket; instead, the driver takes photos documenting absence of nearby no-parking signs. The officer slaps the phone out of his hand, takes him to ground. The driver gets the better of the ensuing struggle, but he gets up and backs away with his hands raised, saying "I surrender." The officer unholsters his gun and shoots the driver in the stomach. (The driver lives, gets convicted of felony battery on an officer). Seventh Circuit: The driver can sue the officer for excessive force.
  • DEA agents conduct traffic stop, search car, find contraband and also garage-door openers, key fob, and mail key. An agent drives around Chicago, pressing garage-door openers. A garage door opens! The agent uses key fob to get into building lobby, mail key to identify condo unit, and then gets consent to search condo, finds trove of heroin, cocaine, ecstasy, pot, and meth. Every one of those investigatory steps comported with the Fourth Amendment, says Seventh Circuit. Concurrence: Agreed, but this is "near the outer limits of what the Fourth Amendment tolerates."
  • A sad case: Carjacker carjacks car, causes accident that kills dog in the back seat of the carjacked car. The carjacker gets 12 years. The carjacking victim seeks $15k restitution for the loss of the dog; the district court orders the carjacker to pay $1k. Eighth Circuit (over a dissent): The restitution award should have been based on what it cost to replace the dog, and there's no evidence that it was as much as $1k. Reversed.
  • In 2012, the Obama administration established the DACA program via executive memorandum, deferring deportation of productive, law-abiding immigrants who were brought to the country illegally as children. Trump administration: The executive branch lacks authority to impose such a program without the go ahead from Congress. Ninth Circuit: Revoking the policy probably violated the Administrative Procedures Act. No revocation for the 689,800 enrollees while this litigation proceeds.
  • Two dinosaurs (a theropod and ceratopsian) fight, die some 66 million years ago in what is now Garfield County, Mont. Their fossils, still intertwined, are now extremely valuable. But do they belong to the surface-estate landowner or to party that owns the rights to mine minerals on the land? To the mineral rights owner, says the Ninth Circuit; fossils are minerals under Montana law. Judge Murguia, dissenting: Fossils are indeed organic matter that become a mineral compound over time, but they are not mined, they are not typically extracted for economic purpose, and they just aren't minerals as the term is ordinarily understood. (Click here for the Smithsonian's take on whether the public will ever get to see the dueling dinos.)
  • Under Tennessee law, PACs controlled by a political party can make contributions to candidates within 10 days of an election, but other PACs cannot. An unconstitutional speech restriction? Tennessee trial court: Indeed so. The gov't tried to conduct a "trial by ambush," waiting until oral argument to say they hadn't had enough time to gather evidence to defend the law. (Click here for a local news report on the ruling.)
  • Man is arrested after (he alleges) ex-girlfriend falsely told police he'd attacked her. Case dropped after ex-girlfriend thrice fails to show up for hearing. Man sues the Philadelphia District Attorney's Office (among others). But, says district court, to sue the DA you need to show that they had a "custom or policy" leading to your injury, and you haven't done that. But if the man can identify the detectives who actually arrested him, maybe the case can proceed against them.

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NEXT: The National Injunction in DACA II

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  1. The driver lives, gets convicted of felony battery on an officer

    If he wins the excessive force claims, I hope he can use that to get the conviction overturned. Someone getting assaulted by a cop should still be able to defend themselves.

    1. The question in the right to resist an unlawful arrest. At common law this was allowed and confirmed by the Supreme Court in Bad Elk v. United States. Unfortunately most states have abrogated the rule by statute or state court opinion. But I a quick search doesn’t reveal Indiana to be one of them (really quick so may have missed it). So I don’t know what the answer is here.

      1. Apparently only 14 states still allow you to resist an unlawful arrest. Alabama, Georgia, Louisiana, Maryland, Michigan, Mississippi, New Mexico, New York, North Carolina, Pennsylvania, South Carolina, Virginia, West Virginia, and Wyoming.

        I’m glad I’m in Michigan.

        I think Plummer vs State would a better case law here though.

        1. I from PA and pretty sure we are not one of them.


          (b) Limitations on justifying necessity for use of force.–

          (1) The use of force is not justifiable under this section:

          (i) to resist an arrest which the actor knows is being made by a peace officer, although the arrest is unlawful

    2. Subject to the proviso that cops have a privilege to assault people in the course of performing their duties (not using “assault” in its criminal sense here).

      That case jumped out at me too.

    3. Absolutely. In Plummer vs State and backed up by Wilson vs State you have the right to defend yourself against unlawful use of force. By proving the officer acted unlawfully he has a pretty good chance of getting it overturned.

    4. Cops are viewed with contempt, and this case spotlights one of many reasons.

      1. We are a giant nation and this web site, among others, aggregates these outrageous stories.

        Are they common? Are they becoming more or less rare? Those are the real issues. How many stories have you read of a million cop encounters yesterday that went fine?

        1. The contempt doesn’t come from existence of *a few* bad apples, but because of the good apples closing ranks and protecting the bad ones.

          Here we have a cop who solicited a bribe, prevented somebody from documenting his innocence through an unlawful arrest and shoots him, even though he was (allegedly) backing away. This may be a rare bad apple, but what happened to him afterwards? Did he go to jail? Did he at least lose his job? The victim got seriously hurt, prosecuted and convicted, while the bad apple is merely facing a long shot lawsuit that in all likelihood will be covered by his employer even if he loses. Anything else?

  2. I call total bullshit on that DEA case, they knew which house to go to, via some other electronic surveillance that may or may not have been legal/constitutional or that they had a warrant for, and backed into their justification that they searched at random and got lucky. That the Court here believed them does not bode well for various other abuses.

    1. I agree.

      Drive around Chicago with some garage door openers and stumble onto a garage you can open? Really?

      How long did it take them?

      1. Garage door openers aren’t that unique. Take your own garage door opener and drive around any major city and you will eventually find a garage it opens other than yours.

        However, this garage door opener was ultimately for a multi car (probably underground) garage for an apartment complex. It may have had markings to indicate that, which would narrow the search considerably.

        1. Garage door openers aren’t that unique. Take your own garage door opener and drive around any major city and you will eventually find a garage it opens other than yours.

          That was plausible back in the 1990s. Not so much now.

        2. Even allowing for some degree of duplication of codes, the story seems implausible to me.

          I mean, we aren’t talking about some small town, or even mid-sized city. This is Chicago. How many garages do you think there are in Chicago?

          Besides, if the opener works on lots of garage doors how does it happen that the first garage they find has all sorts of drugs, instead of the usual crap that people (including me) store in their garages?

          Does not compute.

          1. If you read the document, you’d know that they went to an address where the person they were tailing had gotten a bunch of cash days before but the openers (they had four) didn’t work, so they went around the area trying it out, finding the place a minute away (I checked a map). They didn’t figure out the other three.

            Less garages than you’d think, really. A lot of people park on the street or in lots, not in garages.

            1. Also, the garage didn’t have the contraband. After finding the place they asked the suspect if they could search an apartment one of the keys went to and he apparently consented (God only knows why).

              1. If there was ever a justification for the use of scare quotes, it’s around the word “consented.” Even assuming for the sake of argument that the cops were telling the truth about the guy saying yes, they’re very good about making their “requests” in ways that sound like you have no choice, or at least no good choice.

  3. DEA agents conduct traffic stop, search car, find contraband and also garage-door openers, key fob, and mail key.

    Serious question – why is this story NOT a 4th Amendment violation? No warrant, plus they didn’t know where they were searching, what they were looking for, or who it belonged to.

    1. Moreover, the DEA doesn’t have the authority for a traffic stop, that’s why they have local/county cops as part of special units.

      1. I recall seeing a story a few years ago in which some kind of federal agent, I don’t recall which agency, was imprisoned for making repeated unauthorized traffic stops.

  4. Hopefully with Kavanagh on the bench the “may issue” cases are finally put to rest.

  5. I don’t remember the second amendment referring to hearth or home; in fact, it does refer to the “security of a free state state”, which I assume is mostly outside the home. It seems not very useful to state security otherwise.

    1. I also don’t see “reasonable” or “common sense” restrictions in it.

      1. Here’s Justice Scalia: “[T]he sorts of weapons protected were those ‘in common use at the time.’ ? We think that limitation is fairly supported by the historical tradition of prohibiting the carrying of ‘dangerous and unusual weapons.'”

        “Like most rights, the right secured by the Second Amendment is not unlimited. From Blackstone through the 19th-century cases, commentators and courts routinely explained that the right was not a right to keep and carry any weapon whatsoever in any manner whatsoever and for whatever purpose. ? For example, the majority of the 19th-century courts to consider the question held that prohibitions on carrying concealed weapons were lawful under the Second Amendment or state analogues. … Although we do not undertake an exhaustive historical analysis today of the full scope of the Second Amendment , nothing in our opinion should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings, or laws imposing conditions and qualifications on the commercial sale of arms.”

        Shallow thinking is lame. Mindless talking points are lame. It’s lame to begin and end the enquiry by saying, “I don’t see a specific word or phrase in the Constitution, so that settles that topic.” You can do better.

        1. The Scalia quote’s problem is that “dangerous and unusual weapons” didn’t mean normal guns. It referred to things like barrels of gunpowder, incendiaries, gasses, etc. No small arm would have been considered ‘dangerous and unusual’ – many small arms were custom made, and frequently modified. The idea that a Englishman would have been forbidden to carry his gun outside the home – for hunting or protection from bandits/thieves/Indians/etc – was so absurd that no one then felt it had to be written down.
          Scalia’s own personal prejudices about what he thought the 2nd should mean biased his own interpretation of history, leading to a mistaken answer.

          While “I don’t see that word” is not always a good argument, in situations where rights and limitations are being listed, it can be directly relevant.

          1. I agree with you about carrying guns outside the home.

            Yes, “I don’t see the word” can be directly relevant. By itself, it’s a lame argument. Crazy as it is to say in this time of “my opinion is as good as anyone else’s,” there is value in scholarship. There is value in studying primary documents from the Founder’s time. There is value in studying how courts have interpreted the same, or similar language, from Blackstone to present.

            As an illustration, one could say: “I also don’t see ‘reasonable’ or ‘common sense’ restrictions in the First Amendment.” Is that the end of it? Should we just ignore what the Founders, and courts for centuries, have said about restrictions on religion, speech, the press, assembling, etc.? We can just assemble anywhere, anytime, in any manner, with as many people as we want, screw any other considerations, and no law can stop us? I mean, I don’t see any restriction in the First Amendment, right? That’s shallow thinking. That’s lazy. That’s not helpful.

        2. So the founders were recognizing as a civil right the ability to walk around with (bear), drill, train and use a martial arm while inside your home. OK.

  6. “She …. gets “the hose treatment” (delousing) at Cleveland jail.

    I see no problem. Were I to get busted for something, I would want the rest of those knuckleheads cleared of bugs stat. I can deal with those microscopic rhinoceros thingies in my eyebrow hair follicles, but no lice for me.

    1. When the US showed the brief clips of medical people with gloves on checking Saddam for lice, the goal wasn’t violating the international convention on parading your prisoners around, humiliated and defeated, as a sign to his former followers, but as a gracious sign he was, in fact, actually in custody, and was being given humane treatment and medical care.

      So, yeah, rip her clothes off in front of a bunch of people.

  7. JonFrum: Don’t you agree with the Sixth Circuit (2014) that it’s dehumanizing to perform this kind of de-lousing in front of other prisoners? There is no reason it couldn’t be done in a private room. Don’t you see anything wrong with the justification “expedite[s] the intake process”? We could expedite the intake process even more just by executing and burying the suspects. Expediting is fine only if it doesn’t violate any other right. And the right to privacy was established in Griswold v. Connecticut among other decisions. There are ways of protecting prisoners from lice without a dehumanizing hose treatment in front of other detainees. Moreover, it is likely that the purpose of the hose treatment is not really to control lice; it is to shame and embarrass the detainee and show who is boss.

  8. >The right to armed self-defense is focused on protection of hearth and home.

    Well that premise is complete bullshit. Self-defense is focused on the individual.

  9. Under the 2nd Circuit’s malicious prosecution rule, a non-comatose prosecuter can avoid a malicious prosecution case simply by structuring a motion to dismiss to reflect e.g. a discretionary decision not to prosecute rather a the defendant’s innocence. Thus a prosecutor in the 2nd circuit need never fear being the target of a suit for malicious prosecution.

    A tort that places a plaintiff’s ability to pursue a prosecutor entirely at the prosecutor’s own discretion is a tort that effectively doesn’t exist. One might as well require the prosecutor’s permission for a malicious prosecution suit to proceed as an essential element of the tort, and treat lack of prosecutor endorsement as fatal to the case.

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