Short Circuit: A Roundup of Recent Federal Court Decisions

Robin Hood, affordable housing cronyism, and a free nipple split.

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

This humble roundup is not a place for braggadocio. But this week IJ won big at the U.S. Supreme Court, striking a blow against excessive fines. And last week IJ won huge at the New Jersey Appellate Division, striking a blow against the abuse of eminent domain. CAN YOU HEAR THE FREEDOM RING?

• Allegation: Developer spends $500k on plans to build 50 homes for low-income residents on long-vacant Buffalo, N.Y. lots. But the mayor kills the project after the developer declines to hire the mayor's political ally as a contractor. Second Circuit: There is troubling evidence of cronyism, but the developer's claims can't go.
• Inmate at Fishkill, N.Y. prison (who is unrepresented by counsel) alleges an officer pushed him down concrete stairs. He names "John Doe" in his complaint but also refers to the officer as "C.O. Deagan." Later, he amends that to "Joseph Deacon," after a court orders the state to name the officers working during the shift in question. District court: Took too long to identify the correct defendant. Case dismissed. Second Circuit: Vacated. It was essentially a spelling mistake; it's implausible that the officer didn't know he was the one being sued.
• The federal government gives out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the Attorney General withhold grants from cities—like Philadelphia—that refuse to share information with ICE about the immigration status of arrestees? Third Circuit: Like multiple other courts to consider the question, we hold that Congress never gave the Attorney General that authority.
• Roanoke, Va. ordinance imposes stormwater utility charge upon properties with a certain amount of impervious surface—about 86 percent of the city's parcels. Railroad: Our crushed-rock rail beds are as pervious as lawns, which are exempt from the charge. The rail beds should be exempt, too; the ordinance violates a federal law prohibiting discriminatory taxes against railroads. Fourth Circuit: Ah, but this is a fee, not a tax. Judge Wilkinson, concurring: The company is just trying to get out of paying its fair share for environmental remediation, and its position would threaten numerous cities' clean-up schemes.
• In 1873, the Supreme Court infamously suggested that the Privileges or Immunities Clause of the Fourteenth Amendment protects only a rather paltry set of rights such as the right to use the navigable waters of the United States. And indeed since then the right to use the navigable waters has been more or less ignored. But was the right really so obscure and unimportant in the wake of the Civil War as it seems today? Nope, it was a super big deal, argues the Fourth Episode of the "fascinating" and "riveting" Bound By Oath podcast. Subscribe today.
• Intelligence officer works long hours managing high stress situation—Edward Snowden. She's diagnosed with depression; her once "outstanding" performance deteriorates. She takes medical leave, is recommended for another position by an interview panel but is blocked by management. Fourth Circuit: Her claim that the agency interfered with her ability to take FMLA medical leave ought to go to trial.
• Fact disputes and qualified immunity doctrine fuse into a headspinning medley in this case out of Kaufman County, Tex. Police respond to reports that a black man in a brown shirt is brandishing a pistol in public. The man fires at officers, then disappears. Minutes later, a black man wearing a blue jacket enters the road, over 100 yards away from officers. Claiming he's brandishing a pistol, officers shoot him four times, then tase him. He dies. Turns out he had a toy gun on him, not a real gun. And his dad, a witness, says he wasn't brandishing anything. Parents sue. Fifth Circuit: Parents' version of the facts supports a Fourth Amendment violation, but police officer is entitled to qualified immunity. Kaufman County, however, doesn't get immunity, so the parents can proceed against it. Dissent: "In that split second, [the officer] was justified in concluding that the individual riding at them while their guns were drawn was the armed suspect."
• Company runs auto service centers across the southeast U.S. under the name "Tire Engineers." Mississippi Board of Licensure for Professional Engineers & Surveyors: Change your name. Consumers might think licensed Professional Engineers are changing their tires. Fifth Circuit: Most people who don't work for engineering licensure boards probably realize that the word "engineer" can mean lots of different things. And under the First Amendment, the board can't use speech bans to impose its "preferred definition" of words on the public at large.
• Trumbull County, Ohio corrections officer repeatedly demands that 19-year-old inmate expose herself to him and masturbate. (She does.) And if true, says the Sixth Circuit, that misconduct would so clearly violate the Eighth Amendment that the officer is not entitled to qualified immunity. So to trial the case must go.
• Fort Collins, Colo., imposes no restrictions on male toplessness but prohibits women from baring their areolæ. Free the Nipple-Fort Collins sues, and, with the aid of a district court preliminary injunction, frees all nipples in Fort Collins. Tenth Circuit: Just so. Notwithstanding many other courts' decisions to contrary, we agree that the city has likely discriminated on the basis of sex and violated the Equal Protection Clause. And the city's citation to a Wikipedia article on "Breast" does not change the analysis. Dissent: "The proper standard of review is the rational-basis standard generally applied to economic and social regulation."
• Allegation: Motorcyclist flees from aggressive driver but after a quarter of a mile realizes for the first time that it's the cops. He pulls over. A LeFlore County, Okla. deputy drives into the motorcycle, flinging the cyclist into a ditch. A second officer strikes the unresisting cyclist, breaking his face. After he's cuffed, the second officer repeatedly knees the cyclist in the ribs. District court: Qualified immunity for ramming the cyclist into the ditch. Tenth Circuit: But no qualified immunity for the second officer.
• Developer seeks to develop its Pasco County, Fla. property into retail shopping. County officials demand that the developer dedicate 50 feet for a road, later raising the demand to 140 feet—more than a quarter of the total parcel. Alas, says the Eleventh Circuit, no substantive due process claim arises out of an unlawful application of a land use ordinance. (Fret not, years ago the county paid nearly $5 mil to settle the takings claim.) Concurrence: The attempt to revive a dropped takings claim and infuse it with new life under substantive due process is "not how constitutional law works."
• Pelham, Ga. prison guard discovers that inmates are operating a phone scam, tricking people into giving them prepaid debit card numbers. Casting himself as "Robin Hood," the guard seizes the numbers. Eleventh Circuit: But you left out the critical part of the Robin Hood mythos in which he returned the money to the commoners. Conviction affirmed. (Bonus: Part of the case turns on the fact that the guard is known to be an "asshole.")

Do you want to use your law degree to litigate cutting-edge constitutional cases, stop government abuse of power, set long-range precedent, and champion the rights of all Americans? IJ is on the lookout for energetic and entrepreneurial attorneys with 2-6 years of litigation experience for its Arlington, Virginia headquarters. Attorneys at IJ bring creative, intellectually-rigorous cases in federal and state courts around the country. Within a supportive, team-based culture, attorneys develop their own cases, direct legal strategy, take depositions, and present oral argument through every stage of litigation, maintaining ownership of their cases up to and including the Supreme Court. Often, attorneys gain deposition and oral argument experience within their first 18 to 24 months. To learn more and apply, visit www.ij.org/jobs.

Comments

[a ab abc abcd abcde abcdef ahf]

How often do judges throw in little tweaks like this one about Robin Hood? Lowering The Bar has them sometimes. Not being a lawyer or judge, I imagine it would be a nice way to relieve the tedium of writing verdicts, but maybe it's the clerks who are bored and convince a judge to let them cut loose a little.

[gormadoc]

When I've read them it seems to be angry or frustrated judges. A few judges get known for that sort of thing, though, like Scalia.

[HeatherJBerry]

Google is now paying $17000 to $22000 per month for working online from home. I have joined this job 2 months ago and i have earned $20544 in my first month from this job. I can say my life is changed-completely for the better! Check it out whaat i do.....

click here =====>>>> http://www.payshd.com

[gormadoc]

"During closing argument, Harris's counsel argued that "[w]e're not saying Mr. Harris is not guilty of any crime or that he didn't break any law. He just didn't break this law." He explained that "extortion is not stealing. Extortion is not robbing. It has more elements." The jury was not convinced. It found Harris guilty of extortion both by the wrongful use of fear and under color of official right."

What a great closing argument. Clearly worked well.

[gormadoc]

"The government presented sufficient evidence that Harris obtained Green Dot numbers from inmates by the wrongful use of fear. When he confessed to the investigators, Harris acknowledged his reputation as "the asshole" at the prison and explained how he berated inmates during shakedowns when he found Green Dot numbers. He told inmates, "You ain't shit. You's-a lame [sic]. You know I'm fixin' to take your money from you then. . . . How 'bout that?"

What a character.

[Alexander Campbell]

It apparently (kind of) worked during the first trial, which ended in mistrial. Maybe he emphasized it less in trial # 2 since the court ordered him not use that strategy, though he apparently mentioned it anyway.

[susancol]

Has it been "clearly established" *yet* that you can't just run down a motorcyclist who is not moving? I really would like to understand how "car versus pedestrian/near-pedestrian" is not clearly established as excessive force . . .

[bernard11]

I think under QI doctrine it goes by brand. This case may have established for whatever brand the guy was riding, Harley-Davidson, say, but that doesn't mean you're safe on a Kawasaki or Honda.

Gotta be a precedent, ya know.

[jph12]

This is from the motorcyclist's (Osterhout) version of the facts:

"He ran the stop sign at the intersection and crossed the four-lane highway. When he turned to see whether the car was still chasing him, Mr. Osterhout saw the LeFlore County markings on the side of the car and for the first time realized it was a law enforcement vehicle. He immediately stopped the motorcycle on the side of the highway. The sheriff's vehicle arrived a moment later and struck the backside of the motorcycle, throwing Mr. Osterhout off the motorcycle and into the ditch. Mr. Osterhout immediately stood up with his hands in the air . . .

was entitled to qualified immunity for bumping Mr. Osterhout's motorcycle with the patrol car because his operation of the motorcycle had posed a threat to the officers and the public during the chase and because there was no law clearly establishing that bumping a motorcycle at the conclusion of a chase violated the rider's constitutional rights."

This part of the encounter isn't under appeal, so there isn't a whole lot of discussion about exactly what happened. Given that Osterhout, by his own account, was able to stand up immediatedly it doesn't sound like the first officer was necessarily trying to run him down. It may have been accidental, or it may have been intended to disable the motorcycle so Osterhout couldn't flee (again, from the officer's perspective).

[susancol]

No matter *what* crimes or traffic violations the motorcyclist committed *in the past* (during an extremely short chase), he was *STOPPED*. He was "bumped" (as you charitably put it) *throwing* the person off the motorcycle and into the ditch. If bones (neck?) weren't broken, it was only sheer dumb luck, not due to any caution or moderation by the officer.

A person "bumping" (on purpose) a pedestrian or bicyclist or motorcyclist would be charged with assault with a deadly weapon or similar crime recognizing that hitting someone with a car is NOT benign, but is deadly force. And, last time I looked, the rules pertaining to the use of deadly force to stop a fleeing *felon* require some situation more urgent and serious than "I want to catch the guy".

[jph12]

I didn't charitably put it any way--that's part of the opinion. And, as I noted, because that part of the District Court's judgment isn't being appealed, there's not much discussion of exactly what happened before the other officer started beating him. There's no way to tell from this opinion whether the bumping was intentional or accidental, or how hard the car hit the motorcycle, and I don't care enough to look up the District Court's ruling.

[susancol]

Direct quote from opinion: The sheriff's vehicle arrived a moment later and struck the backside of the motorcycle, throwing Mr. Osterhout off the motorcycle and into the ditch.

Possibly my ear is a bit fine-tuned, but I consider "bump" connotes a more harmless, less serious contact that "struck" and your use of it was "charitable" and not what the court used.

[susancol]

To the extent that the court later described it as a "bump" it is guilty of the same ludicrous minimization of what should be wrongful behavior.

[jph12]

"Possibly my ear is a bit fine-tuned, but I consider "bump" connotes a more harmless, less serious contact that "struck"

Okay. Which one better reflects what actually happened?

"your use of it was "charitable" and not what the court used."

Again, it wasn't my fucking use of it. It was exactly what the Court used, which is why I included it in quotes, along with the "direct quote" you think you are telling me about.

"To the extent that the court later described it as a "bump" it is guilty of the same ludicrous minimization of what should be wrongful behavior."

The Court used it while describing the District Court's reasoning for its decision, which Osterhout didn't bother to appeal. They aren't minimizing anything, because it doesn't make a bit of difference whether the car bumped or struck the motorcycle because that part isn't under appeal.

[Eddy]

"with the aid of a district court preliminary injunction, frees all nipples in Fort Collins. Tenth Circuit: Just so. Notwithstanding many other courts' decisions to contrary, we agree that the city has likely discriminated on the basis of sex and violated the Equal Protection Clause."

Just like John Bingham would have wanted, that dirty old man.

[Dilan Esper]

A couple of comments.

First, every police toy gun shooting case is just such a tragedy. I understand the problem and I don't have a great solution for it. It's certainly hard for the police in a split second to identify if a gun is real. But it's just so sad.

Second, on this one:

"Trumbull County, Ohio corrections officer repeatedly demands that 19-year-old inmate expose herself to him and masturbate. (She does.) And if true, says the Sixth Circuit, that misconduct would so clearly violate the Eighth Amendment that the officer is not entitled to qualified immunity. So to trial the case must go."

Sometimes, when I see cases like that, I want to shake the government lawyers by the lapels and ask "what are you thinking"? How can anyone argue with a straight face that, if this is indeed what happened, it isn't clearly illegal?

[bernard11]

Upton Sinclair had the answer to that one.

[Robert Beckman]

Shooting: just apply the law of self defense to the police. You know, the actual law. If an assailant disengages and flees, you can no longer use deadly force on them, so under regular self defense law even if it had been the original assailant it would have been unlawful to fire on him when he returned because he wasn't presenting a current danger. Since this is already the law in most jurisdictions I'm familiar with (mostly the west) we don't even have to change anything, other than adding "and we really mean it" to Article I, Section 9, Clause 8.

[jph12]

According to the police version of events, Gabriel (who they thought was the same person who had shot at them minutes ago) was riding his bicycle towards them holding what looked like a real gun. If I believed that's what happened, I'm pretty sure I'd consider an ordinary person to have acted in self defense as well.

It's just a really sad situation all the way around. "According to Appellants, Gabriel was on an innocent mission to show the officers his toy pistol." It could be that Appellants are correct and Gabriel wasn't holding the gun, or the gun was so obviously fake, or it should have been obvious that Gabriel wasn't the original shooter, and the shooting was unjustified. But if he did have it in his hands, and it looked somewhat realistic, and he could reasonably be mistaken for the original shooter in the heat of the moment, then I don't think it's realistic to expect the police to realize that the 25 year old man approaching them with a gun in his hand during an active shooting is just trying to show them his toy gun.

[Noscitur a sociis]

In most states, the statutes governing the use of deadly force in self-defense (the ones the police officers would invoke if they were charged with crimes) are much more forgiving than the Supreme Court's fourth amendment standards.

[Noscitur a sociis]

Sometimes, when I see cases like that, I want to shake the government lawyers by the lapels and ask "what are you thinking"? How can anyone argue with a straight face that, if this is indeed what happened, it isn't clearly illegal?

It doesn't appear that the government was representing the guard in this case. But regardless, the question isn't whether the conduct is clearly illegal: it's whether it clearly violates the US constitution. According to the opinion, the Sixth Circuit has previously held that "'isolated, brief, and not severe' instances of sexual harassment do not give rise to Eighth Amendment violations. Jackson v. Madery, 158 F. App'x 656, 662 (6th Cir. 2005), abrogated on other grounds by Maben v. Thelen, 887 F.3d 252 (6th Cir. 2018))." I think that the court here got it right (i.e. that the guard shouldn't have received qualified immunity) but I don't fault the lawyer for making the argument.

[Dilan Esper]

If you read the opinion, those cases aren't in the ballpark of the REPEATED acts of coerced stripping and masturbation here, and the Court seemed ticked off that someone argued they were

[Krayt]

Fort Collins, Colo., imposes no restrictions on male toplessness but prohibits women from baring their areol?.

I dunno, I'm more in line with the original version of the Ferenghi, where, upon meeting them for the first time, one whispers to another, aghast, "Look at the humans -- they force their females to wear clothing!"

[John Aronson]

If IJ thinks that expanding the incorporation doctrine is a victory then IJ is part of the problem.

[ducksalad]

Can't think of any part of Amendments I through VIII that I wouldn't want incorporated. Thomas and Gorsuch have a point that some parts aren't really about due process and should be incorporated via privileges and immunities, but incorporation is still the end result.

[David Nieporent]

What problem exactly do you perceive?

[mujalakukufi]

hi Start working I essentially started three weeks past and that i makes $385 benefit $135 to $a hundred and fifty consistently simply by working at the internet from domestic. I made ina long yes you can essentially started three weeks past and that i makes $385 benefi>>>>>>>> http://www.2citypays.com

[vaadu]

"Fourth Circuit: Ah, but this is a fee, not a tax. Judge Wilkinson, concurring: The company is just trying to get out of paying its fair share for environmental remediation, and its position would threaten numerous cities' clean-up schemes."

Saying that Railroad needs to pay 'Its fair share' and threatening clean-up schemes is irrelevant. Either the law is on Railroad's side or on Roanoke's. If it favors Railroad then fix the law. Judges should not pretzel the law or read stuff into it to fit a desired outcome.