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Volokh Conspiracy

Short Circuit: A Roundup of Recent Federal Court Decisions

A dirty cell, no no-smoking policy, and a classic case of Orwellian doublethink.


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

On January 22, the Supreme Court will consider whether states may exclude religious schools from generally available scholarship programs, or whether such exclusions violate the U.S. Constitution. Espinoza v. Montana Dept of Revenue is an IJ case. Click here for more from The New York Times.

  • Pomona, N.Y. (pop. 3,200) residents and leaders with preference for "zero population growth" enact four zoning changes that will impede development of new college where students will train to be rabbinical judges and live with their families, bringing perhaps 4,500 Orthodox/Hasidic Jews into the village. Second Circuit (after 47 pages of facts): Two of the zoning changes were susceptible to an inference of religious animus and violate the First and Fourteenth Amendments, notwithstanding that residents would have vigorously opposed any project bringing that many new residents.
  • Inmate at Lubbock, Tex. prison alleges he was forced to stay naked for several days in a cell in which every surface was covered with human excrement. He could neither eat nor drink for fear of contamination, and rather than fixing the problem, prison officials merely laughed at him. Fifth Circuit: Qualified immunity. The law clearly established that prisoners couldn't be kept in cells teeming with human waste for months on end, but it hadn't yet covered a stay of only six days. It's clearly established going forward, though.
  • Prisoner en route to dental appointment overpowers Cameron County, Tex. officer, seizes handgun, and forces his way into a home. He shoots and kills an occupant, steals a car, and is killed after a high-speed chase. Can two other occupants of the home and the victim's estate sue the gov't? Fifth Circuit: Though at least six other circuits recognize the state-created danger theory of liability, we still don't. But even if we did, these plaintiffs would still be out of luck because they didn't allege the gov't knew that plaintiffs themselves were in danger (as opposed to people generally in the vicinity).
  • En route to a mental health facility and high on methamphetamines, man jumps out of his fiancée's car at a traffic light while holding a three-inch knife, wanders to a residential neighborhood. Elizabethtown, Ky. police order him to drop the knife. Instead, he takes a step toward them with his knife raised "in a stabbing position" and tells the officers they'll need to kill him. They do. Excessive force? Sixth Circuit (over a dissent): No.
  • The system Michigan officials have set up for prisoners to report rape "is a classic case of Orwellian doublethink," says the Sixth Circuit, and three inmates who allege they were sexually assaulted as juveniles while housed in adult facilities (a policy since abandoned) can proceed with their suit.
  • Feds charge defendant with illegal reentry and, during the sentencing phase, make several comments about undocumented immigrants' taking American jobs. Sixth Circuit: The gov't's arguments were "blatantly inappropriate" and "unbecoming of the quality of lawyering expected from the United States Attorney's Office." But because the district court did not rely on those arguments, the defendant's sentence stands.
  • During drug conspiracy trial, prosecutor asks witnesses to relay out-of-court statements of unnamed informants. Which violates the Sixth Amendment's Confrontation Clause, so the judge orders the prosecutor to stop. And yet the prosecutor does not—ultimately committing over a dozen violations on the first day of trial alone—so the judge grants a mistrial. Defendant: The prosecutor deliberately did it to cause a mistrial; the entire indictment must be dismissed. Sixth Circuit: There's no evidence of that; a new trial does not violate the Fifth Amendment's Double Jeopardy Clause.
  • Farmington Hills, Mich. condo association bans, among other things, dogs, cats, and "immoral" activities. But smoking is allowed, which aggravates an asthmatic resident. Does the policy violate federal housing discrimination law? The Sixth Circuit says no.
  • Those arrested for misdemeanor crimes in Giles County, Tenn. are detained after arrest until they pay bail—an amount set without reference to their ability to pay, without a determination of whether they pose a danger to the community or risk of flight, and without their presence. Several arrestees obtain a preliminary injunction against the county and sheriff for this system. Going forward, the injunction will allow bail if accompanied by evidence of the arrestee's ability to pay, necessity of detention, and alternatives to bail. Sixth Circuit: Indeed. And, contrary to the county and sheriff's arguments, the plaintiffs need not have sued the judges for their actions of setting bail. The county and sheriff play an active role in the challenged detention.
  • After extensive remediation efforts, the site of a former Army munitions plant near Baraboo, Wisc., once the world's largest propellant manufacturing facility, is now suitable for recreational use. Seventh Circuit: No reason state officials can't allow two recreational uses opposed by plaintiffs: training dogs to hunt (on roughly 2% of the park) and off-road motorcycling (six days a year, among other restrictions).
  • Allegation: As five Las Vegas police pin down unresisting concertgoer, a sixth officer chokes him unconscious. Ninth Circuit: Could be excessive force or analogous state law claims: assault, battery, and intentional infliction of emotional distress. To trial this must go. Judge Fletcher (concurring): And it's high time the Supreme Court clarified when exactly appellate courts have jurisdiction over disputed facts; current practice has resulted in "analytic chaos."
  • Huuuge Casino, purveyors of a smartphone casino app, must face a user's suit (claiming that charging users for chips violates Washington state gambling and consumer protections law) in federal court, says the Ninth Circuit (with pictures). Arbitration is not mandatory when companies bury their terms of use "twenty thousand leagues under the sea."
  • In 1911, the feds grant a right-of-way to the owner of a reservoir outside Laramie, Wyo. Over the years, people buy the adjacent land and build homes and cabins. Yikes! Flooding damages many of the properties. Double yikes! The reservoir owner then decides to increase the amount of water in the reservoir. Landowners: It flooded because you exceeded the right-of-way. Owner: The right-of-way covers whatever the reservoir occupies, so we can add water as we please. Tenth Circuit: The landowners are right.
  • And in en banc news, the Ninth Circuit will reconsider its decision reversing the conviction of a woman who slapped a fellow passenger on a flight to Los Angeles. The original panel had held the trial was improperly held in Los Angeles because the slap occurred somewhere over the Great Plains—and not in the Central District of California's airspace.

NEXT: "The University of York Apologises for Saying 'Negro' in Lecture on Civil Rights Hero's Book Called the Philadelphia Negro"

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  1. "Inmate at Lubbock, Tex. prison . . . . . . . Fifth Circuit: Qualified immunity. The law clearly established that prisoners couldn't be kept in cells teeming with human waste for months on end, but it hadn't yet covered a stay of only six days. It's clearly established going forward, though.?

    This summary is not quite correct. The Fifth did find QI on many of the allegations. But NOT for all. The appellate court did find for the plaintiff re some of the issues and sent those back to the trial court.

    [Side-note. It's cases like this that really annoy me re an appellate court's opinion. Now, after this opinion, we know, "Before this case, prisons knew it was wrong to make inmates sleep in excrement/urine for months. But no one knew that doing this for only 6 days was also clearly improper." Why on earth did this court not go on (albeit in dicta) to add, "And, for future reference, prisons are on notice that, in fact, keeping a prisoner in inhuman conditions like these for more than __ hours after guards are put on notice is also equally improper."

    Cuz we know that another case will come down the pike, where an appellate court will hold, "Before, prisons knew that 6 days was too long to keep a prisoner in sub-human conditions. But no one had told them that doing this for 4 days was not okay." ]

    1. If we are going to be stuck with qualified immunity, can we at least change the definition of "clearly established" to "if someone who has had a high school civics class knows that it's probably unconstitutional, it's clearly established" That would at least be an improvement over the de facto current requirement of a factually indistinguishable Supreme Court case directly on point.

      1. Or, "if it's illegal for a civilian to do it, it's illegal for a cop unless expressly authorized by clear law."

        Way too many idiotic cases like this, where there is absolutely no excuse for cops to even put someone in such a cell,let alone keep them there for some unknown number of days.

      2. That would kind of defeat the purpose of unqualified immunity, wouldn't it? Which IS exactly to allow the government's agents to be abusive.

        1. Well, qualified immunity defeats the purpose of the statute.

          1. Not in theory. As implemented, it's not qualified at all. That's the real problem.

    2. How about for any time at all.

      Some wonderful Federalist Society judges on this case. Much admired on the right.

      1. "How about for any time at all."

        Depends. Did the inmate do it to his own cell? Did the inmates organize and do it to all the cells? If you tell them that they can't be kept for any amount of time in those conditions, you create an incentive for the inmates to create the offending conditions. You have to be careful about what actions you reward.

    3. It continues to interest me that these QI cases draw condemnation across almost the entire ideological spectrum of VC commenters. I very much suspect that the reaction would be the same from the general public.

      Yet they pop up over and over.

      What is the problem here? Is it legalism gone wild? Can this truly not be fixed?

      1. 1. You're generally seeing the "worst" cases from across the country all condensed into here. Out of the 40 million lawsuits filed per year, a few of the worst are condensed here. It's the same idea as murders being shown on the news seems to imply that the US is a murder-fest.

        2. You're really only getting one side of the story in a lot of these.

        3. QI is meant to protect the police officers in the course of their duties. The city/county can still be sued, regardless of QI. And there can be legitimate differences of opinions here.

        1. There's something to your point about selection bias, but a handful of egregious cases is often enough to stir public outrage. Not here. Maybe there just isn't enough of a constituency.

          I do wonder, in many of these cases, whether the relevant government is also being sued,and if not why not?

          1. So, the individual egregious cases are being pruned back by each individual decision, and it's now declared illegal.

            But what you're really asking is to repeal Harlow v. Fitzgerald, and have a jury court case for any and every of these actions where the law is not clearly established.

            The issue with that is that there is a lot of borderline items, and lawsuits can be issued on just about everything. Moreover, even the potential of a lawsuit is enough to discourage a lot. The Supreme Court instituted modern QI, because they were "Concerned allowing suits to go this far deterred officials from performing their duties, "[diverted] official energy from pressing public issues, and [deterred] able citizens from acceptance of public office"

            That's a real risk. If the police go from pro-active policing to a very limited type of policing where they just respond with the minimum required effort in order to cover their own potential legal liabilities, there are real world consequences.

            The best example of this is the Freddy Grey case. Freddie Grey died in police custody, and this was a tragedy. However, there was a call for "justice" against the police. In the end, the police officers were acquitted in the trial. But the damage to the police's methods was done. Rather than use proactive policing methods, the minimum level of police response was adopted by the department.
            The result was a spike in Baltimore's homicide rate. The previous rate of ~35 homicides per 100,000 over the previous 5 years spiked ~53 homicides per 100,000 over the next 4 years. A 50% increase in the homicide rate. That represents an additional 100 people dead each year.

            Now, the usual response here is, that police should be proactive AND not have qualified immunity. Which is asking a lot. Basically, you're sending someone out there to make life or death, split second decisions, then telling them if anything goes wrong on their end, you won't support them, they're on their own. That takes a super-human psyche. Moreover, those police who are still proactive...odds are they'll hit a borderline case, then be sued away from being proactive in the future. The smart police will know...don't risk it. Just keep driving by.

            1. You make good points but do you mean to imply that prisoners sleeping in urine and feces is an inevitable cost of doing business if one wants proactive law enforcement? Because it's Not. Not at least if the people creating the legal framework care about such things.

              1. The devil is always in the details in these things. The way the summary is worded, it sounds as if fresh feces and urine, like the bottom of a porta-potty were smeared all throughout the cells.

                But, if you read the court report, the prison is a psychiatric facility. In the court report, one of the guards is cited as saying "[d]ude, this is [M]ontford, there is shit in all these cells from years of psych patients" Moreover, the court says the defendants tried to assert "that the cells were not, in fact, covered with feces" and "The court also found that the defendants had allowed Taylor to shower twice and had attempted to clean the first cell’s walls"

                So, here's my analysis of the situation. Montford is an old psychiatric facility which has been converted to a prison. The cells have been "cleaned", but there's only so much cleaning you can do when fecal matter is ground into the walls. There will always be a residual odor. The wardens were tight up for room, and decided to temporarily use this old cell which smelled, and was never entirely properly stripped and cleaned (if it was possible with that room), to hold a prisoner for a couple days. The prisoner was rather OCD about cleanliness, and had a freak out (and sued).

                Now, is it permissible to house a prisoner in such a room for a couple days? One where the walls and floors have been wiped down with sponges, but which have a residual odor from ages of neglect? The wardens made a judgement call, and said yes. And it was better there, than in a solitary cell (without a toilet, and just a drain) or without being doubled up with another prisoner (which could expose the prisoner to violence) or without just letting the prisoner go.

                But let's say, you get rid of QI. And 98% of the time, the wardens are fine. But 2% of the time, you get a jury to decide that "No, that's not a good prison cell", and you open up the wardens to civil lawsuits.

                Well, then the wardens look at their options, and say "I don't want to be sued and lose my house. Let's just let the guy go on bail". And 95% of the time, that works fine. And 5% of the doesn't.

                1. You know, oner of the ways to get the taxpayers to cough up for bringing the cells up to a decent standard is to tell them they're going to have to pay out lots of judgments if they don't.

                  Was a suit filed against the city/county here?

                  1. Here's the district court case. It looks like 47 different individuals were sued. I'll let you make your own conclusions.


                    1. Well, I read it. I'm not sure what conclusions you think ought to be drawn.

                      My conclusions are that even if the guy is a little out there, there is enough smoke for me to think there is fire.

                    2. Two conclusions.

                      1. The guy is a little out there.

                      2. The guy knows the system, and what to say and how to say it to get what he wants. Even if it's not truthful.

                      I'm not sure if you picked up on it, but they did move him to a seclusion cell for 2 days. The question is why? There's a telling exchange, where the guy really wants out of the cell, and the guard basically tells him "If you want out, you know what you have to do". And the guy says "I want to hurt myself". He later asserts in the district court decision that he didn't actually want to hurt himself, but he needed to say that in order to get out of the cell.

                      And legally, once the guard hears that from the prisoner, he needs to be moved to a suicide-prevention cell. The guard knows the prisoner is lying just to get moved. And the prisoner knows the guard knows. But the guard isn't legally allowed to act on what he knows, but must act on what the prisoner says. And the prisoner knows it.

                      Now assume the prisoner also knows the legal system. And that the initial complaint MUST use interpretation of the case most favorable to the plaintiff. And that as wide a net as possible is advantageous in order to see if something hits somewhere.

                    3. OK, A.L.,

                      Here's a question.

                      Why doe she need to be kept naked, and without a blanket and some kind of mat to sleep on?

                      Can you rationalize that away?

                    4. That one is more common. It's a suicide watch. When the inmate said "I want to hurt myself", it was almost required by law.

                      Blankets can be used to hang oneself, as can many clothes. Smaller items can be used to choke oneself. So, they are removed from the room.


                2. The court asserted that the conditions experienced by the Lubbock prisoner (over the course of 6 days, not 2) were worse than those experienced by a prisoner in another case who had to sleep every night on a urine soaked mattress. So it's clear they believed there was more to plaintiff's assertions concerning cell conditions (including IIRC sleeping naked in urine and feces because the feces-clogged drain couldn't drain the urine, and going without water in one cell because the faucet was packed with feces) than just ineradicable residual fecal odor.

                  1. So, there's a slight edit needed to your statement.

                    The "court" did not assert these conditions. The Plaintiff did. And the court MUST assume the interpretation most favorable to the plaintiffs in this sort of initial hearing. So, if the plaintiff asserts the faucet was "packed with feces" and the defense asserts it was not, the courts MUST assume the interpretation of the plaintiff, absent clear and comprehensive evidence to the opposite (video evidence is most common, but in this case, you'd need something like signed contaminatate testing from the faucet from just before the prisoner was put in the cell).

                    At an actual trial, the court could assert the truth of the conditions based on relative evidence from both sides. But at this stage, the court MUST assume the view that is most beneficial to the plaintiff.

                    1. OK, but then why not move on to the fact-finding stage, rather than come with this - let's call it what it is - bogus QI business?

                      If the facts were as the prisoner alleged, then anyone with a pea for a brain would know his rights were violated, whether there was an earlier case involving exactly six days or not.

                      And one more question: does this case even establish, under QI doctrine - that future incidents of this type are violations?

                    2. Thanks for the reminder (because I now think I saw this in the decision itself) about what the court must assume at this stage.

                    3. Responding to Bernard,

                      1. Going onto the fact-finding stage in assessing QI is actually not allowed. In fact, it was one of the reasons the plantiff gave for the appeal, that the district court erred by looking at some of the facts.

                      2. Again, it wasn't clear. Months would be bad. A few days?

                      3. This case establishes that if the facts are as the plantiff stated, it's not allowed.

                      4. Here's an interesting case for you, regarding constitutional violations in regards to inmates and inmate conditions. An inmate has an overflowing toilet, and is exposed to "raw sewage" (for fun, look as to why it was overflowing). Is it an 8th amendment constitutional violation if he needs to stay in that cell for 4 days?


                    4. That's interesting, A.L, but the case doesn't really impress me.

                      Inhumane conditions are inhumane conditions, even if some judge 20+ years ago didn't think so.

                    5. Different people have different ideas of what is "inhumane" especially given context.

                      From your comment, I would assume that you believe being kept in a cell for a couple days with an overflowing toilet is "inhumane" and grounds for a civil suit.

                      Let's assume your point. Then, hypothetically in a coordinated action, several dozen inmates intentionally clog their toilets the same day. There's no space to transfer them to. The wardens are left with a dilemma. Keep them in the cells for a few days until they can be fixed and cleaned, and be sued for 8th amendment rights violations. Or let them go.

                      Which one do you pick?

                3. In the real world, the majority of cops do their jobs the way they are trained, carefully respecting the rights they know they are required to respect, to the exact limit they are expected to do so and not a smidge more. They get trained on methods they ARE allowed to use, which do not abridge rights.

                  Then, you get a court case that says "hey, this method you've been using, it's across the line. Dial it back. So, the department(s) learn that the method they've been using has actually been wrong. The department, working with prosecutors and other legal advisors, works out a new method to replace the old one, and all the cops get retrained to the new standard. But, that isn't an instant process. Some will make a mistake, and use the old method even though they shouldn't have. Or they were in court testifying when the department trained on the new method, or they were on vacation, or sick, or whatever.
                  This is a failure of the department to train properly. For those cases, the proper defendant is the agency, for failing to train and supervise their agent correctly. The proper outcome for the individual is that their mistake is used when calculating their pay raise, if any, at the end of the year, and whether or not they continue to be employees of the agency. Suing them personally doesn't achieve much... remove QI from the equation and you'll just wind up with indemnification in the union contract, transferring the cost back to the department.

                  The egregious cases usually come from one of two sources: 1) cops who are criminal individuals, and 2) unique situations that arise outside of training (most of these are use-of-force that seems disproportionate to the situation, and this is a result of training that alertness means staying alive, from which you get Cobra Kai mentality.)

      2. It's really hard to achieve something by voting that neither major party sees as in it's own interest. See term limits, for example: It was wildly popular, imposed by ballot initiative basically everywhere that was available, but went nowhere at the national level or in states without the initiative process.

        Neither major party has much interest in their minions being restricted. So the judges who are selected by office holders have no interest in doing so, either.

        I identify that as the real problem here: Judges are always going to be at least somewhat biased in favor of the interests of those who select them. Appointing judges places that bias in service of the very government the judges are supposed to be restraining.

        I think this is one of the biggest structural problems with the federal government, which was only exacerbated by the 17th amendment: Selection of the federal judiciary by federal officeholders. You'd need a constitutional amendment to fix that, and we're not getting that without a constitutional convention.

        1. I think your view is overly conspiratorial.

          I don't doubt that judges and prosecutors tend, on the whole, to be somewhat sympathetic to law enforcement.

          Given the popularity of the "tough on crime" theme in electoral politics, I don't think alternative methods of selecting judges would be any better. They could easily be worse.

          And I don't think the 17th Amendment has much to do with the problem.

          1. "I don’t doubt that judges and prosecutors tend, on the whole, to be somewhat sympathetic to law enforcement."

            Juries, too. Don't forget the juries. It does you absolutely no good to have a prosecutor bring charges against cops who get caught wildly violating the rights of citizens, before a judge who treats the charges fairly, if the jury will not convict the guilty.

            The reason for this is that cops deal with three subsets of the population (criminals, drug addicts, and the mentally ill) that the rest of us would really rather not interact with. This buys them a great deal of sympathy from the public.

            "Given the popularity of the 'tough on crime' theme in electoral politics"
            There's two forks to this. There's the individuals running for office who need to APPEAR "tough on crime", and there was the efforts to impose tougher penalties and define new crimes via the voter initiative to make up for the "not tough enough on crime" legislators who made calculations like "the voters won't want to pay for this" when deciding how tough to actually be.

            Using Oregon as an example, because I'm familiar with it, the "mandatory minimums" initiative was Measure 11. Get charged with a measure 11 crime, and you'd be doing a LOT of jail time if convicted. But it didn't work out quite as intended. First, prosecutors would (over)charge measure 11 crimes in order to get plea bargains to lesser charges. Turned out an unfortunate amount of these plea bargains involved factually innocent people. Oops. Second, some of the people who were actually guilty wound up with severely disproportionate sentences.

            The second example from Oregon was the Wapato jail. Voters approved millions of dollars of funds to build a new jail facility in Multnomah County, Oregon's most populous county because most of Portland is in it. But, year after year, they DIDN'T approve any funds to actually staff and operate the jail. So, it was finished, but never actually used as a jail. Last I heard (I don't live in Oregon any more) it was going to be converted into a homeless shelter. An extremely secure homeless shelter.

            OK, what was my point in bring this all up? Oh, yeah... the "tough on crime" politician is as popular as ever, but the individual initiatives have dropped spectacularly in recent years. You're more likely to see efforts to repeal "tough on crime" measures in many areas, because being "tough on crime" is fairly expensive and not necessarily an effective use of taxpayer money.

            1. Interesting points, James.

  2. "students will train to be rabbinical judges"

    If this works out, maybe increasing the number of rabbinical judges will broaden arbitration options and therefore relieve pressure on secular courts. Dare to dream?

  3. It's religious animus if you don't want to your town's population to more than double.

    Can't wait till this is applied to immigration laws.

    1. Look up "Antelope, OR".

      1. Actually, the smallest incorporated municipality in the US is Monowi, Nebraska, population: 1.

        1. OK. Who cares? How is that relevant?

    2. If you don't want your town's population to more than double, maybe don't wait until a religious organization buys 100 acres of land in your town and you learn of their plans to build a school housing up to 1000 students and their families before you pass relevant zoning restrictions.

      4 zoning restrictions were challenged. The district court apparently ruled for the plaintiffs on all 4.

      The circuit court overturned the decision as to the two zoning restrictions that were long standing, but upheld the district court on the two passed only after the town learned of Congregation Rabbinical College of Tartikov, Inc's plans.

      1. If you read the ruling, it's not that clear.
        Starting in 2000, every time there was any discussion of the property's use, the question came up: "Will you be building dorms?" and the answer was always an explicit "No".
        Then there were some ownership games, and in 2007 the owners suddenly said "Oh, yeah, dorms - lots of them, plus more buildings and housing, and we're going to build all over your nature reservations and wetlands."
        That's when the "new" zoning rules went in place - and they mirrored policies that had already been applied by the town (read the long section about adjacent properties).

        1. "in 2007 the owners suddenly said “Oh, yeah, dorms – lots of them, plus more buildings and housing, and we’re going to build all over your nature reservations and wetlands.”"

          I suppose the transcript shows them going "Bwah ah ha!", too?

    3. Milo....Hate to break it to you, but this case was definitely religious animus. There is a lot of context you're not getting. Several towns in the immediate area have passed ordinances relative to Jews that were unequivocally based on religious animus. Which were then stopped/overturned by bringing suit. Google Mahwah Eruv, and Ramapo NY housing dispute for two examples.

      What we have here in this case is another is a long running series of cases indicating religious animus toward Jews. What I cannot believe is we still have to deal with this in 2019. It is medieval.

  4. Okay, a minor point, but ""twenty thousand leagues under the sea" refers to the distance traveled by the Nautilus on its journeys, not how deep it descended. Jules Verne used the lieue métrique, equal to 4,000 meters, so the total distance traveled by the Nautilus was 80,000 km.

    1. It's not a minor point. That was my winning question in two completely separate game shows back in the 90's. So, I think it falls under "essential knowledge." 😉

    2. And Challenger Deep, the deepest place in the oceans is only 11km deep, so about 3 leagues.

      1. A league is 3 and a half miles, so 20,000 leagues would be well over 60,000 miles. As the Earth is only 27,000 miles wide, your poor submarine, and poorer arbitration clause, would be all the way through the Earth and about 1/8th the way to the moon.

        1. Pardon me, ~8000 miles wide. 27,000 is the distance around.

  5. If this set of articles has taught me nothing else, it is that Qualified Immunity is a fundamentally flawed concept.

    Even assuming that the idea of needing court cases to prove every insignificant detail is constitutional or not, who can possibly know the extensive case law necessary to use it in it's current state? Even seasoned lawyers need to hit the books to prove something is or isn't constitutional. The rest of us have no chance whatsoever in complying.

    The entire concept needs to be abandoned in favor of the "reasonable person" standard, with the current idea only reserved for extremely unusual or novel cases.

    1. What you need is a bigger buffer zone between "what a court found clearly impermissible in a previous case" and "what is actually permissible", and courts should set in dicta where the line is actually drawn when the current case is way, way, over it. So if a case comes down where the officer tased the unresisting suspect 37 times, the court would say "we find tasing an unresisting subject 37 times to be well beyond the limit of once, at maximum, if the device is triggered accidentally. and in general any tasing of unresisting subjects is unlawful." instead of "tasing the unresisting subject 37 times is clearly not permitted by law", so that the next time, the cops stop at 36 taserings, and get QI because they were on notice that 37 is too many, but had no guidance for 36 times.

      1. What you need is for cops to be treated as civilians. If they beat up people, frame them, falsify their testimony, or do anything else which is illegal for civilians and not specifically allowed by statute for police, then charge them as civilians.

        Abusive cops will be cleaned up right quick. The so-called good cops who stand by and do nothing will be cleaned up right quick. People might actually start trusting cops after just a year or two.

        And politicians might actually be held accountable for all the crap they let cops get away with, since it would be out in the open, in laws, passed by legislators.

        1. If they beat up people, frame them, falsify their testimony, or do anything else which is illegal for civilians and not specifically allowed by statute for police, then charge them as civilians.

          This is already how it works. Qualified immunity is not a defense to criminal charges.

          1. No, that's true: Prosecutors working for the government is their defense against criminal charges. The only reason they need unqualified immunity is to protect them from civil suits, because the victim can bring those.

            1. So all we need to do is make prosecutors work for the criminals instead of for the government.

              Seems legit.

        2. As if the police were sitting there thinking, "Ya know, we aren't putting him in there for months, which is unconstitutional, but only a week or so, and that's all right", instead of more likely angrily thinking, "This'll learn 'im!"

        3. "What you need is for cops to be treated as civilians."

          Since that's no going to happen, what I also need is for a busload of models to find themselves stranded and needing a ride to the important lingerie show they're already almost late for.

    2. Which of the details do you think were insignificant?

      1. In this case, saying that "you shouldn't lock someone up naked in a filthy room" isn't obviously unconstitutional. Specifically that because it was only for a few days instead of months, that this meant the police officers couldn't know that they were violating their victim's rights. That's absurd on its face.

        1. A previous Fifth Circuit panel had held that putting someone in such a cell for three days was not unconstitutional, which is also consistent with what the Supreme Court has said on the subject. So while your intuition might be that any confinement in such a cell is per se impermissible, that's not actually the law.

          1. So they can just keep doubling it?

            "Hey, three days was fine (it isn't, but never mind), so six days is OK too."

            Next month in the Fifth:

            "If six days is OK then twelve is no problem either."

    3. The entire concept needs to be abandoned in favor of the “reasonable person” standard, with the current idea only reserved for extremely unusual or novel cases.

      Right, only I'd make it even stricter. Cops, corrections officers, etc. are supposed to be professionals.

      The current approach is nonsensical.

  6. The final case which the 9th Circuit has decided to rehear en banc (the link for the order goes to "page not found") is interesting, and the original 2-1 decision seems particularly dumb.

    In short, a woman assaulted someone on a flight between Minneapolis and Los Angeles. She was tried in the the Central District of California, but the panel said this was improper as the assault indisputably occurred before the plane entered the airspace of the CDC. The dissent argued that while the venue statute could be clearer, the result is absurd, and two other circuits have held that venue is proper anywhere along the plane's route. Even the majority concedes the absurdity of, for example, trying to pinpoint over which district a plane flying in the Northeast was at a particular point in time (which might be itself impossible to determine). Venue primarily exists for the convenience of the defendant, then witnesses. One can imagine that given an alleged crime on a flight between New York and Los Angeles, a trial in Nebraska isn't convenient for anyone.

    I suspect common sense will take the day, and this case is reversed en banc.

    1. Well it is the rule for jurisdiction under Grace v.. MacArthur.

      But obviously you are right. The states people fly over often have no relationship whatsoever to the passengers.

    2. I agree that it generally would make more sense for venue for a crime committed on a plane in flight to lie in the district where the plane lands rather than the district the plane happened to be flying over. But I don't see much basis to conclude that Congress actually passed a law saying that. The dissent in Lozano certainly doesn't seem very persuasive on that point. The result may be absurd (or at least impractical), but if Congress passes an absurd law, the judiciary is still supposed to apply it. (Unless it conflict with the constitution, of course -- but if anything, the constitution mandates the absurd result.)

      1. Isn't there an ancient rule for sea vessels on this?

        1. Ya, see 18USC3238 below.

        2. There's a clear rule for crimes that aren't committed in any judicial district, which would apply to offenses committed on the high seas (or on aircraft flying over the high seas). The problem is that the crime here was/I> committed in a judicial district, and while it's not clear which one it was, it definitely wasn't the Central District of California.

  7. The rules for venue in criminal cases are explicitly spelled out in the constitution. Special rules for air travel appear to just be complaints about how having to prove all of the elements of a crime is too hard.

    1. Not so. The Constitution grants Congress the right to set by law the boundaries of the districts:

      In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law

      There is no restriction in the text of the 6A on the shape of the district or that it must be 2 dimensional. Congress can very well say that "the Eastern District of comprises the counties of ... from ground level up to 2000' AGL"

      Having so established that the air above Eastern Michigan is not within the district, it falls to 18USC3238

      the trial of crimes committed on the high seas, or in any place out of the jurisdiction of any particular state, shall be in the district where the offender is apprehended, or into which he may first be brought. But if such offender or offenders are not so arrested or brought into any district, an indictment or information may be filed in the district of the last known residence of the offender or of any one of two or more joint offenders, or if no such residence is known the indictment or information may be filed in the District of Columbia.


      In this case, the offender was apprehended in California, so problem solved.

      1. That is of questionable constitutionality. The Constitution says it needs to be held in the district where the crime is committed. The statute can say where they want venue but it still needs to accord to the constitution. The Constitution isn't explicit about what happens if the crime didn't occur in a defined district so what can be done about that is debatable.

        1. I should rephrase. The venue isn't the issue per se. Article III gives Congress that leeway. It is where the jury is pulled from that creates issues based on the 6th Amendment.

          1. Somehow we've managed to find juries to convict drug smugglers apprehended on the high seas without offending the 6A.

      2. I don't know why no one else has brought up the law of seas. That's actually quite clear and gives multiple different options for jurisdiction.

        MSE326, The constitution can never predict all possibilities. This is why we have courts.

        1. I'm aware, that's why I didn't say it would be unconstitutional only that it is of questionable constitutionality. This also requires determination of where a State's third dimension jurisdiction goes to. Because while Congress can make districts it can't change the state's and those boundaries are also relevant.

          And again in terms of vicinage (the 6th Amendment Jury requirement) it doesn't contain the same language granting authority to Congress that the Venue Clause in Article III does.

          My only point was that while Congress has passed a statute any statute must comply with the Constitution and in this case that is questionable.

          As to your high seas analogy I have no doubt that is where Courts will look for guidance. But there are some differences. The high seas are international space, I seriously doubt that the Government will assert that the airspace is similarly international. Crimes on the high seas are considered under law of nations, I don't know that that would also apply to crimes on aircraft. So while that is certainly the best analogue there is and it has strong similarities, it isn't an exact match and some of those differences may prove important, particularly the issue of international v national.

        2. I don’t know why no one else has brought up the law of seas. That’s actually quite clear and gives multiple different options for jurisdiction.

          Can you offer an example of a couple of those options?

        3. That's why we have Article V.

      3. Even if Congress could pass such a statute, it hasn't done so, and the ninth circuit has previously held that the airspace above a particular judicial district is part of that district.

        1. Oh, I didn't realize that.

  8. On January 22, the Supreme Court will consider whether states may exclude religious schools from generally available scholarship programs, or whether such exclusions violate the U.S. Constitution.

    On the one hand, I don't like government money flowing to religion. On the other, many parties cavalierly hurt religion happily by claiming "it's a law of general applicablility".

    Sorry, no picking position based on outcome you want.

    1. " many parties cavalierly hurt religion happily by claiming 'it’s a law of general applicablility'."

      What laws, specifically, "hurt religion"? I mean, the Native Americans whose religions included peyote have a fairly clear claim. But the tendency is, when people start complaining about how "anti-religion" a law is, it turns out that the "anti-religion" part is where the membership in a religion can't impose their religion's rules onto other people.

      1. This blog is lousy with RFRA and related stories. People get to practice their religion in their lives. Pardon me. They declared it when creating government and giving it power. It's an artificial power grab to say someone may not practice it while doing business, in those exact examples.

        Nobody imposes anything in a free country where you can walk out the door.

        1. "People get to practice their religion in their lives."

          Problem is, some people make some pretty wide claims about how their religion works. A good many of them can point to the part of their holy books about punishing the unbeliever, for example. Should they be exempt from assault and murder statutes, in order to pursue this part of their religion(s)?
          If so, what about the person who claims his religion requires him to have sex with underage girls?

    2. Maybe it is me, but isn't this case really a federalism case as opposed to a religious discrimination case? I would have thought spending state money was a state issue, not a federal issue. The people of Montana debated that, and enshrined their consensus into the state constitution.

      Why isn't the correct remedy here amending the MT constitution via article 14? There are certainly many ways for the MT constitution to be changed, legislatively, or by popular referendum.

      1. Because the 14th Amendment was ratified and read to apply the BoR to the states. So any law, whether statute or state constitutional provision, is subject to the restrictions of the 1st Amendment.

        1. And the tenth amendment reserves rights to the states not expressly delegated to the federal government. That is why I am wondering if this is really a federalism case, and not a first amendment case.

          There is a remedy available, and it is specified in the MT state constitution. The people can amend it. To me, this is MT's call to make.

          Mind you, I think religious institutions who run schools should be able to get aid, just like secular schools. That is my personal belief.

          1. States or people. Since the right is incorporated, religious freedom is guaranteed to the people and state governments cannot infringe upon it.

      2. A lot of the state money for scholarships ultimately comes from the federal government, for one thing.

  9. Another week another batshit crazy QI decision from the 5th Circuit. Can't wait for their next ruling saying 6 days was clearly established as wrong, but 5d23h was not, QI granted!

    It seems that circuit is particularly bad, and with QI it takes a lot to stand out. Those assholes should be ashamed of themselves, willing to do whatever mental gymnastics it takes to find a hook they can claim makes an action not clearly established. The only thing "clearly established" for them is that police/guards can commit all the inhumane blatant abuses of civil rights they want without fear of accountability-- no matter how obvious it is to imbeciles, children, and blind martians living under a rock in a cave that it's a violation of rights.

    1. 'In the case before us, Ofc. Hole, A. responded to a school regarding a call for assistance with a 5-year old throwing a temper tantrum. After cuffing the child, Ofc. Hole stomped on the childs head until they were in a coma after determining the continued crying constituted resisting arrest and a flailing leg that came in contact with Ofc. Hole's pant leg constituted aggravated battery on a law enforcement officer. Plaintiffs claim excessive force, and point to UKiddingMe v. Ofc. Bag, D., where SCOTUS ruled that it was in fact an actionable violation of civil rights to stomp a 5-year old into a coma after restraining them for a temper tantrum. However, in that case, Ofc. Bag used his left boot to stomp the child, and the case before us contains a material difference in fact, namely that here, Ofc. Hole used his right boot. We find that the previous case did not serve to clearly establish that an officer could reasonably have notice that stomping a 5-year old into a coma with his right foot constituted excessive force. Qualified immunity granted. Further, we do not establish such notice here.'

      -5th Circuit Court of Fuck Your Rights.

  10. I’m not sure why commenters are blaming the Circuit Courts for the QI mess. They are doing exactly what SCOTUS told them to do, which is to find 1983 cases with as specific a fact pattern as possible.

    SCOTUS created this mess, and only they can fix it

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