Short Circuit: A Roundup of Recent Federal Court Decisions

A pizza shop vandal, FOIA/RICO/1A, and the Case of the Polite Bank Robber.

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

In 2015, an armed shoplifter who was fleeing from police broke into a Greenwood Village, Colo. family's home. After he shot at police, a SWAT team used explosives, high-caliber ammunition, and a battering ram mounted on a BearCat armored vehicle to apprehend him, completely destroying the home in the process. Last month, the Tenth Circuit ruled that the city need not compensate the family. This week, IJ petitioned the court to rehear the case en banc. Click here to learn more.

New on the podcast: A different case about SWAT destroying an innocent person's home, Maryland's law of the land clause, and making civil forfeiture victims whole.

• Brown University student takes it upon herself to treat take-home exam as group project. University: The exam was decidedly not supposed to be a team effort. Hence, discipline. Student files 13-count complaint against the university, alleging, among other things, that the school's handling of her disciplinary proceeding violated its policies. First Circuit: Any deviations from the school's policies could not have harmed the student, not least because she was a repeat player in the disciplinary system and "could reasonably be expected to navigate it with some skill."
• Owner of a Canadensis, Penn. pizza shop arrested, jailed for allegedly vandalizing two competing restaurants. Over the next four days, he interacts with seven medical professionals from the for-profit medical contractor that provides the jail's health care services. Those professionals learn he takes antidepressants but fail to evaluate him for suicide or ensure he properly receives his medicine. He dies by suicide. Jury: They owe the man's estate nearly $12 million for violating his Fourteenth Amendment right to adequate medical care (three-quarters of which comes in the form of punitive damages). District court: Sure, they were bad, but not that bad. No punitive damages. Third Circuit: They were that bad. Pay up.
• Homeland Security learns a suspected sex trafficker has left the country and is set to return through JFK, so they ask Customs and Border Protection to seize any electronic devices he has upon arrival. CBP seizes the devices and gives them to Homeland Security. A forensic search of the devices turns up evidence of sex trafficking, leading to the man's arrest and conviction. Was the warrantless search of the devices justified by the "border search" exception? Fourth Circuit: It was not, because the suspected crime had no connection to border security, but the evidence still comes in under the good-faith exception. Concurrence: No Fourth Amendment violation here.
• Las Vegas police conduct traffic stop of a member of the Bikers for Christ ministry group. The biker's attorney is present, armed, and refuses to comply with orders to step away during the traffic stop. So an officer arrests the attorney. Attorney: False arrest! Malicious prosecution! Harassment of motorcycle clubs! Ninth Circuit (over a dissent): The right to counsel probably does not encompass such conduct. In any event, the officer had probable cause to arrest him when he failed to step away.
• Owner of Florida real estate business sets up phony nonprofit that files thousands of vague FOIA requests against the town of Gulf Stream. When the town fails to respond adequately, he has his son sue the town more than 30 times in an effort to extract settlements. Town files a RICO lawsuit to stop harassment but loses. Director of nonprofit sues for First Amendment retaliation. Eleventh Circuit (in a deep dive on recent retaliation case law): There's no First Amendment claim here because the town had probable cause to support the RICO suit. Concurrence: But we're not saying probable cause always defeats a retaliation claim.
• "If this were an Encyclopedia Brown mystery, it might be called The Case of the Polite Bank Robber." So begins an unsigned Eleventh Circuit opinion, vacating a sentence enhancement for a "less bad" bank robber whose actions probably didn't put anyone in fear of their life.
• Illinois man is convicted of sex offenses, placed on probation for four years. One condition of probation is that he can't use any social media during his sentence. A First Amendment violation? Appellate court: Nope, unlike the Supreme Court's recent ruling on these issues, the conditions here aren't permanent. Illinois Supreme Court: Doesn't matter. The defendant didn't use the internet in the commission of his crimes, and the other conditions on his probation are more than adequate to address the government's concerns. (via @G_Padraic)
• If you marry a woman who, as a condition of probation, has agreed to let the police conduct a warrantless search of her home at any time, it's probably not a great idea to start selling meth. Per the Tennessee Supreme Court, the police won't even need reasonable suspicion to conduct the search that will lead to your arrest on drug charges. Dissent: We have more than 65,000 probationers in Tennessee, all of whom are now open to suspicionless searches of their homes. That's unconstitutional. (via @TNCrimDefense)
• Last summer, California legislators enacted a law barring presidential candidates from appearing on a ballot in the primaries unless they publicly disclose their tax returns for the previous five years. California Supreme Court: Which violates the state constitution's guarantee that primaries include all recognized candidates on the ballot of a political party that qualified to participate in the primary. It's up to voters to punish candidates who fail to disclose their tax returns, if they wish to. (Click here for some journalism.)

In 2006, the Oklahoma Supreme Court ruled that the state constitution prohibits using eminent domain to take private property for economic development. But Tulsa officials are trying to do an end run around the constitution, seizing homes in the city's historic Pearl District—ostensibly for flood prevention. But the neighborhood does not have drainage problems, and the city's own planning documents make clear that the flood control facilities are a pretext for a "reinvention of this near-downtown neighborhood." And, indeed, the city has asked developers to submit bids for "housing and mixed-use development." This month, residents and supporters formed a new group, Save the Pearl Coalition. Click here to learn more.

Comments

[David Welker]

“If you marry a woman who, as a condition of probation, has agreed to let the police conduct a warrantless search of her home at any time, it’s probably not a great idea to start selling meth.”

Let’s concede it is not a good time to sell meth at anytime. Obviously, one of the major problems with the 4th Amendment is that the people who “represent” us all in these cases are often doing something that is not smart.

The real question is, should you lose your constitutional right to basic privacy and to be free from unreasonable searches, based on whom you marry? It sounds like a freedom of association problem to me. Either choose between your constitutional rights or the woman you love.

I would go in the other direction in this case.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I am an absolutist in many aspects of liberty. I don’t like the War on (Some) Drugs. I don’t have much use for government prosecution, government police, etc. But the woman made the deal to take probation rather than jail, or settled for probation rather than chance a trial,and the husband chose to marry her under that condition, and then did something illegal knowing all that …. and at some point, people just have to take responsibility for their actions. Yes, I am blaming the victim in part. But I also have little sympathy for drunks who get robbed or raped, or greedy people who get conned while trying to get something for nothing. It wouldn’t matter if all these things happened in my libertopia; some victims do bear some responsibility for their actions.

This guy is just another fool, and no matter how wrong the government’s actions were, he could have avoided all sorts of hurt by just taking a little more personal responsibility. I doubt he would have been better off in my libertopia. Suppose he or his wife had sold contaminated meth, which was legal except for not being pure and safe, and had taken probation in lieu of restitution of a trial; he sounds like he doesn’t understand the concept of personal responsibility and would be in the same boat.

This is not government entrapment. It’s not even directly related to meth being illegal. It’s just a damned fool trying to avoid personal responsibility.

[C. S. P. Schofield]

I have no use whatsoever for the War on Drugs, though if all drugs were legalized and there was a huge explosion of problems attendant thereon I might (MIGHT!) change my position. Still, in this case I think we have an example of the adage that Nature abhors no vacuum more than one that has ears on either side.

[David Welker]

You completely missed the point. The 4th Amendment protects the innocent as well as the guilty. You lack sympathy for this defendant because he is both guilty and stupid. But if he had been both innocent and smart, the effective elimination of his 4th Amendment rights would be the cost of marrying this woman. And that is a First Amendment problem. He should not have to surrender his Fourth Amendment rights to exercise his First Amendment rights.

Never make the mistake of letting your lack of sympathy for a particular defendant blind you to the fact that these rulings have implications for our rights, even though we are neither guilty nor stupid. Do not focus in the defendant, focus on the principle as applied to yourself.

[Krayt]

All these rights, including speech, must be fought on distasteful grounds because the next step is encroachment on something more meaningful, defeating the primary purpose of stopping the people in government from using its power to the benefit of themselves.

It’s not about protecting every last stupid or evil little thing someone might do or say per se.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I am aware of all that, and the dumbass here deserved a better government. But like I said, and you ignored, someone this dumb would be just as screwed by whatever better government is possible or even impossible. He is a victim of his own stupidity more than a victim of bad government.

[James Pollock]

“if he had been both innocent and smart, the effective elimination of his 4th Amendment rights would be the cost of marrying this woman.”

No. His problem didn’t come from marrying her. It came from moving in with her.

“Never make the mistake of letting your lack of sympathy for a particular defendant blind you to the fact that these rulings have implications for our rights”

This ruling doesn’t have any implications for my rights. When you get convicted, you surrender some of your rights, including specifically the right to cohabit with your spouse. This is true even if you don’t get married until after the conviction.

[David Welker]

Moving in with your wife is kind of the point of getting married. Not with you perhaps, but amongst us normal people. And based on long-held traditions.

Your lame attempts to pretend this is not an infringement on the association rights of the husband is not even slightly persuasive. You are merely signaling that you do not take the 1st Amenment rights of those you do not like seriously.

[tkamenick]

Wait, if the crime happened after the marriage, the innocent spouse would still be deprived of their right of association with the criminal spouse.

[James Pollock]

“The real question is, should you lose your constitutional right to basic privacy and to be free from unreasonable searches, based on whom you marry?”

That’s the wrong question, for two reasons. First, It wasn’t getting married that caused his problem, it was choosing to share living quarters. Second, he didn’t “lose” his right to be free from unreasonable searches, he waived them.

This was the correct result.

[jubulent]

Ninth Circuit (over a dissent): The right to counsel probably does not encompass such conduct.

In a roundup of unreasonable laws unilaterally enacted by the second legislature, this one is particularly egregious. A lawyer should not be be arrested for insisting on being present during his client’s arrest.

Such a result makes a mockery of the right to counsel.

[Noscitur a sociis]

The police were trying to write the client a ticket, not arrest him.

[Rossami]

Which doesn’t (or at least, shouldn’t) matter at all to an evaluation of your right to counsel during a conflict with an armed representative of the state.

[James Pollock]

When does the right to counsel attach? Do exigent circumstances (ever) apply? And, finally, does it make a difference if the principal is attempting to invoke the right, or if someone else is attempting to invoke on their behalf?

[David Welker]

The “exigent circumstances” of writing a ticket???

In my book, those are called “ordinary circumstances” or “routine circumstances.” If these are exigent circumstances, then all circumstances are exigent.

[Toranth]

This entire ruling is disturbing – just read the dissent to see how badly the majority behaved – and the cop that did the arrest.

Basically, they ruled that the lawyer was interfering with the traffic stop after not stepping away when told to do so. In what way was he interfering? Well, the officer had to stop to tell him to go away, which used up “valuable police resources”.
The majority also claims he was a threat because he was armed, and “traffic stops are ‘especially fraught with danger to police officers’” while at the same time concealing that the lawyer had offered to give up his gun to the police, who declined because they did not feel in danger.

Which leads back to the arresting officer. That cop was NOT the one that started the traffic stop, but one that arrived later AND had a history of disputes with the lawyer.
This sounds like a cop looking for revenge, and the 9th Circuit doing its best to keep the thugs in charge.

[Derelictionofbooty]

“We have more than 65,000 probationers in Tennessee”‘
What % of these probationers are subject to the warrantless search provision at issue?

[C. S. P. Schofield]

I admit, I would like to know just how popular that proviso is.

[Rossami]

From what I can find online, it appears to be 100%.

[James Pollock]

“What % of these probationers are subject to the warrantless search provision at issue?”

My guess is 100%. If you don’t like the terms of probation, you can always demand a jail term, instead.

[David Welker]

Of course, you ignore the fact that probation is a much less costly method of control for the state to use than prison. And that this very fact allows the state to threaten punishments it has no desire or financial ability to consistently impose.

So-called greater powers do not always imply apparently lesser power. There is no greater power the state can exercise than the death penalty. Yet it is forbidden from exercising the lesser power of cruel and unusual punishment.

You even ignore the impact on third parties. That is how rabid you are.

[tkamenick]

Um, that greater power doesn’t include that lower power because that lower power is expressly withheld. Without the 8th amendment, the greater power would imply the lesser.

[David Welker]

Please consider the Ninth Amendment. Your argument is essentially the existence of the 8th Amendment disparages using the logic behind the 8th Amendment elsewhere. Doesn’t it?

[neoteny]

she was a repeat player

Aren’t there laws forbidding to bring up the past of the complainant?

[DodgerBobH]

It appears her status as a repeat player wasn’t used to prove that she was guilty of the most recent alleged offense, but to show that she was not prejudiced.

[neoteny]

Well, that wasn’t my take: I thought that it was used to show that she’s not an innocent as far as navigating the disciplinary system of the school. Yes, it wasn’t used to prove guilt; it was used to pre-empt claims of unfamiliarity.

[James Pollock]

What you’re saying and what he said are the same. The fact that she’d been in the disciplinary system previously was used to show that she wasn’t prejudiced by being new to/unfamiliar with the system.

[Noscitur a sociis]

None that I’m aware of.

[neoteny]

Rape shield laws?

[James Pollock]

“Aren’t there laws forbidding to bring up the past of the complainant?”

No. That’s how “three strikes” and “habitual offender” sentencing work.

[neoteny]

I think you missed the ‘complainant’ bit in my question.

[James Pollock]

I substituted the more general “appellant”.

[neoteny]

Why?

[James Pollock]

To provide a more general answer.

[neoteny]

But that’s a false answer; it doesn’t answer my question but rather yours.

[James Pollock]

Your question was answered. The answer is “No.”

[Krayt]

Was the warrantless search of the devices justified by the “border search” exception? Fourth Circuit: It was not, because the suspected crime had no connection to border security, but the evidence still comes in under the good-faith exception.

There was no (invalid) warrant at all. I assume they had enough info to possibly have gotten one, but didn’t because they thought they didn’t need it because of border searches.

If not, it’s just illegally pouring through someone’s stuff to find unwarranted evidence of illegality. “We don’t have enough for a warrant, so we’ll do an end run around it via border search.”

[James Pollock]

You call it an “end run”, but at the time they thought it was a lawful method. So, now they’re told that it is not a lawful method, and to knock it off.

Border searches (related to border security) SHOULD be in a different category from (searches that happen near the border), and now that’s the rule. (Now, the federal bureaucracy (including the courts) have a different idea of what “near the border” means from what I think it means, but that’s a fight for another day.)