Short Circuit: A Roundup of Recent Federal Court Decisions

Canine due process, feline endangerment, and civil contempt.

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

After Muhammad Tanvir declined the FBI's requests to spy on fellow Muslims, the feds (among other threatening and harassing behavior) put him on the No-Fly List for several years, which cost him his job and prevented him from visiting his family in Pakistan. He sued, and on the eve of an important hearing, the gov't removed him from the list. Next month, the Supreme Court will consider whether Tanvir can sue for monetary damages under the Religious Freedom Restoration Act or if—as the gov't claims—once the gov't ceases its unlawful conduct, there is no longer a legal remedy. In an amicus brief filed this week, IJ urges the Court to allow damages and examines the role that damages have played since the Founding in ensuring federal officials are not above the law.

• Allegation: In disclosure statements required by federal law, President Trump not only disclosed debts he is personally liable for but also corporate debts he is not personally liable for, which obscures the information meant to be disclosed and frustrates the intent of the law. D.C. Circuit: It does seem like there is "potential for mischief," but that's for Congress, not the courts, to address.
• Man defies court order, declines to decrypt hard drive that almost certainly contains a trove of child porn. He's imprisoned for four years for civil contempt. Third Circuit: 18 months is the max courts can confine witnesses involved in court proceedings. Dissent: He's not a witness and there is no proceeding, just an investigation. Concurrence: The gov't has more than enough evidence already to send him away for a long time. Why is it even pursuing this?
• Using publicly available descriptions of property boundaries, startup company draws lines on satellite photos, which helps its customers, community banks, visualize their property assets and identify issues (such as a property's legal description not describing a completed shape). Mississippi regulators: That is the unlicensed practice of surveying, a civil and criminal offense. Fifth Circuit: There is no occupational speech exception to the First Amendment. The startup's challenge should not have been dismissed. (This is an IJ case.)
• Allegation: Without provocation, guard pepper sprays Texas inmate. Fifth Circuit: Which violates the Eighth Amendment, but the inmate's suit can't proceed because this wasn't clearly established by prior case law. Partial dissent: "How could any guard not know that an unprovoked use of pepper spray is unlawful?"
• Mississippi nonagenarian's dog, Max, runs away from home while emergency responders transport his doggy dad to the hospital after a fall. The good news: Max is recovered while his owner is hospitalized for several weeks recovering from surgery. The bad news: The city won't give the dog back because his owner (who received no notice that Max had been found) didn't claim him within three days of his being taken to the pound. The owner sues to get Max back but, sadly, dies while the case is still pending. Fifth Circuit: Yet his claims survive, and the district court needs to take a closer look at whether the city's seizure and retention of Max violated due process.
• Busted for selling contraband candy, 12-year-old Mississippi boy has his pockets searched by an assistant principal. His mom sues, claiming that the assistant principal grabbed her son's genitals. When the undisputed record proves the mom's account false, the trial court grants qualified immunity. Fifth Circuit: And it is "patently obvious" that this was the correct outcome. Footnote: If Judge Ho had his druthers, he'd demand that the mom's lawyer explain why this frivolous appeal isn't sanctionable, why her briefs are filled with misspellings and grammatical errors, and why she felt the need to intimate that the assistant principal might be gay.
• Allegation: Without a warrant, up to eight Lincoln Park, Mich. officers barge into home of man wrongly suspected of shooting a cat. Though the man is unarmed and compliant, an officer slams him into a cupboard. (He's cuffed painfully, strip searched, and then released three hours later.) District court: Qualified immunity for officer who slammed him. Sixth Circuit: Reversed.
• Allegation: Following surgery to deal with aggressive prostate cancer, Wisconsin prisoner experiences erectile dysfunction. But prison officials decline to provide surgeon-recommended medication. ("To be clear, the purpose of this recommendation was to preserve [his] long‐term erectile function, as opposed to facilitating any sexual activity while [he] remained incarcerated.") Seventh Circuit: The district court abused its discretion by not allowing the man to amend his complaint to name the proper official.
• Man convicted of 1989 Cheyenne, Wyo. burglary and rape unsuccessfully sues the city and police officers in 1991 and 1992. The man is exonerated by DNA evidence and released after 24 years in prison. He sues the city and the officers again in 2017. Do the prior judgments in favor of the city and officers preclude the new suit? The Tenth Circuit says maybe not. The district court needs to take another look.
• Allegation: While incarcerated at the Denver Women's Correctional Center, female inmate was repeatedly groped, subjected to very R-rated sexual comments, and otherwise sexually harassed by male guard. Guard: Who could have known that such behavior toward a prisoner was unconstitutional? Not me. Tenth Circuit: Yes you. Qualified immunity denied.
• McDonough, Ga. municipal court sentences woman to 60 days in jail for failing to pay fine without holding a hearing to determine whether her failure to pay was willful. Can she sue the city? Eleventh Circuit: No, the court was enforcing a state law (against driving while uninsured), not a local ordinance. Judge Jordan, concurring (and citing an IJ study): "Jailing a defendant for failing to pay a fine—without any determination that her failure to pay was willful—is a flagrant violation of the U.S. Constitution."
• In this Zen koan of a case, the Eleventh Circuit holds that a quasi-governmental agency attempting to collect a nonexistent debt is not a "debt collector" because the attempted collection of the (again, nonexistent) debt was incidental to the agency's "bona fide fiduciary obligation" to collect debts. Dissent: Even if collecting nonexistent debt fell within the fiduciary obligation exception to the Fair Debt Collection Practices Act, the plaintiff has plausibly alleged that the agency acted in bad faith.
• Black male disembarks the Chinatown bus in Columbia, S.C., where he is soon approached by DEA agents who just want to have a friendly chat about his trip, the weather, and—oh, by the way—whether he is carrying any illegal weapons. After the man suspiciously answers "no" and, allegedly, touches his shirt and waistband, an agent frisks him for weapons. The agent finds none but feels a lump that his "training and experience" tell him just has to be crack cocaine. It is, and the suspect, on his third strike, is sentenced to 30 years in prison. But was the search unlawful? South Carolina Supreme Court: Not at all. Any black man in the defendant's position would have felt free to walk away from this encounter. Dissent: Have you guys been watching the news? (via @PoliceLawProf)
• And in en banc news, the Ninth Circuit—over the votes of 10 dissenting judges—will not rehear its earlier ruling that a prison's failure to provide gender confirmation surgery to a transgender inmate who had twice attempted self-castration violated the Eighth Amendment. The Second Circuit, however, will reconsider its holding that a landlord can be held liable for tenant-on-tenant harassment under the Fair Housing Act.

Are you a law student? Are you on the East Coast? Do you want to learn how to turn an idea into a full-blown Supreme Court case or what the real difference between public interest law and private practice is? Then join the Institute for Justice at our second Legal Intensive—the premier one-day public interest law program. Students will be able to participate in IJ's renowned student programming and get an inside look at our newest cases and cert petitions with IJ lawyers and staff. This event will be held in Arlington, Virginia on March 28, and we'd love to see you there! Click here to learn more and apply!

Comments

[Brett Bellmore]

"Allegation: Following surgery to deal with aggressive prostate cancer, Wisconsin prisoner experiences erectile dysfunction. But prison officials decline to provide surgeon-recommended medication. "

I'm not sure why the prison has to provide better coverage than Blue Cross/Blue Shield. Which did the same to me after MY prostate surgery.

[santamonica811]

Brett,
Because insurance we can get or purchase on the outside (via work, via Obamacare, via Medicare, etc) presumably gives us a lot of ability to gain that medications. By changing plans, by purchasing--for extra money--medication that is considered out-of-plan, etc.. Since we intentionally remove these sorts of medical choices from the incarcerated, I think it's absolutely reasonable to give the incarcerated 'better' coverage (re financials) than you or I get out in the free market. (You didn't mention out-of-pocket expenses . . . I suspect that prisoners have a zero deductible and zero co-pay as well (with prison health care looking mighty tempting in that aspect) but also have probably essentially zero opportunities to see competing doctors, if we do not like the diagnosis or the bedside manner of our first selected doctor (with prison health care looking much worse in these aspects, of course.).

20 years ago, a client intentionally committed a minor crime, and immediately had me drive him to the local police station to turn himself in. He refused a plea deal, specifically so that he could get sent back to the joint. He needed about $30,000 worth of necessary dental work, and there was no legal way to get this on the outside. The story is an indictment of many things. But, surely, one of them is the state of dental care and how almost all plans do not cover it, or do not cover it comprehensively.

But I"m really digressing now . . . . 🙂

[Brett Bellmore]

That's right, despite it being a standard post operative treatment in the case of prostate surgery, BC/BS does not cover low dose viagra after such surgery. I could have paid for it on my own, but things were tight at the time.

Now, tell me, was this prisoner not permitted to purchase it himself, at his own expense? That would be offensive, I agree.

Or was he just in the same position as anybody else with normal or even better than average, insurance, and limited means?

[James Pollock]

When the state chooses to take people into custody, they also take on the duty of seeing to their health care, because the people are no longer capable of seeing to it themselves.
One of the choices you as a free person have is to go over the border in search of a cheaper alternative. See how that choice isn't available to the prisoners?

[Brett Bellmore]

The question is not whether they take on the duty of seeing to their health care. It is whether they take on the duty of providing better health care than they'd have gotten if they weren't in custody. The idea that committing a crime and ending up in prison should result in you living BETTER than otherwise is not a popular one.

[James Pollock]

You either are providing health care, or you are not.

[Brett Bellmore]

I know for a fact you're not stupid enough to believe that.

[James Pollock]

Thanks, i guess?

[Brett Bellmore]

You're welcome.

Look, if the prison provided prisoners with Purina people chow, a nutritionally complete meal that even made its own gravy if you added water, and they sued because they wanted something with variety that tasted better, would you say, "you're either providing food, or you're not"? No, you wouldn't, because that question can be objectively answered, and the answer would be, "They are providing food." Because people have finite nutritional needs, affordably met, and once you meet them, that's it. Everything beyond that is just to improve the experience of eating.

But, people do not have finite medical needs. Or, maybe they do, and we're just nowhere near being able to meet them, which is why everybody dies eventually.

You can provide more and better and more expensive health care, virtually without limit. And I don't mean "better" in the sense of more pleasant, like getting steak instead of people chow. I mean more effective. You could bankrupt the world giving one country the very best health care available.

This means, unavoidably, some people are going to get worse health care than others. Unavoidably!

So, "Are they providing health care, or not?" is a stupid question to ask. Either the answer is always "yes", because they're obviously providing some health care, or you're asking a binary question about a non-binary reality.

The prisoner got prostate surgery. That's the part that saves your life, the really important point. The low dose Viagra isn't to save your life. It just improves the odds of your having a better quality of life years later, reduces the chances of erectile dysfunction and/or incontinence. Neither of which is any fun, I assure you, but you can live with both.

Just improves the odds. You can still end up with both of those with the low dose Viagra, or neither without it.

So don't be stupid enough to ask whether the prisoner got health care. The question is whether they got enough, in a world where health care is unavoidably rationed. And the prisoner got as much as most people would get outside of prison, so I don't see any basis for complaint.

[James Pollock]

"Look, if the prison provided prisoners with Purina people chow, a nutritionally complete meal that even made its own gravy if you added water, and they sued because they wanted something with variety that tasted better, would you say, “you’re either providing food, or you’re not”?"

It's called "nutraloaf", but it is food. Technically.

[bernard11]

You don't know what kind of health care the prisoner would have gotten if they weren't in custody. You want to assume they are entitled to no better care than the worst policy available would have covered.

You yourself say that low-dose viagra is "a standard post operative treatment in the case of prostate surgery." So there's no argument that this is some sort of "filet mignon and lobster" treatment, to quote absaroka.

That BC/BS doesn't cover it, or tried to chisel you, is irrelevant.

[Brett Bellmore]

"You want to assume they are entitled to no better care than the worst policy available would have covered."

My policy is far from the worst, very far, and it didn't pay for this part of the treatment. MOST people, if they get that part of the treatment, it's because they paid for it out of pocket.

You're demanding the prisoner get BETTER health care than most law abiding people outside prison get.

[James Pollock]

The prison takes away the prisoners' ability to "pay for it out of their own pocket". That imposes a duty. That sort of thing is baked into all the little details that go into holding people in custody.

[bernard11]

Do you have actual data to support this, or are just saying so because you are (rightly, IMO) pissed off over your coverage?

I mean, anyone with a bad policy could post a similar complaint.

[Rossami]

Well, for one thing, you had at least some choice in the selection of Blue Cross/Blue Shield. Maybe not directly. Maybe only through your choice of employers. Prisoners have none.

[Absaroka]

You could look at it that way, or you could say 'they pick their health care provider when they commit their crime'.

FWIW, if I wanted to ensure high quality health care for prisoners, I'd be careful with the 'prisoners deserve care that is better than most people get' argument. However you view the ethics, I think it has pretty bad optics for the average Joe.

One could make a parallel argument - prisoners deserve filet mignon and lobster for dinner every night, because if they weren't incarcerated they could choose to purchase that for themselves every night.

[James Pollock]

"You could look at it that way, or you could say ‘they pick their health care provider when they commit their crime’."

How do you make it up to them later, when it turns out they were wrongfully convicted?

[Brett Bellmore]

I suppose in the same way you give them the years of their life back?

[James Pollock]

More taxpayer dollars are always available, I guess.

[Rossami]

I was wondering if someone would bring up the "they chose to commit the crime" argument. While that has some moral validity, it breaks down when you consider
a) those in pretrial confinement (who have not yet been convicted of anything but who are subject to the same medical treatments)
b) those who are in jail despite being actually innocent. Despite that being a small number, those innocents did not in fact choose to commit a crime and therefore did not even indirectly consent to prison medical treatment.

The thing that distinguishes the case above from your filet mignon example, in my opinion, is the doctor's prescription. If the doctor says you need something, that's morally very different from "I want to eat better".

[Absaroka]

"If the doctor says you need something, that’s morally very different from “I want to eat better”."

I'm not sure that's true. Some examples:

1)You have a tooth that needs to come out. You have various options. Sorted from cheapest to most expensive, those might be:
a)live with the gap
b)get a bridge
c)get an implant
People who aren't incarcerated look at the prices and make all three of those choices. Which *must* be provided to prisoners?

2)My wife got the full chemo ride a few years ago (and coincidentally, her schedule aligned with an inmate who arrived in the orange jumpsuit and shackles, plus a pair of guards, for his sessions). The basic chemo is pretty cut and dried, but there are some options that vary wildly in price. For example, you can get a bottle of cheap anti-nausea pills that do an OK job of controlling nausea, or for $$$$$ get a fancy bioengineered infusion along with the chemo that basically eliminates the nausea. Which *must* be provided to the prisoner?

(there were a number of such options along the way, where both provided adequate care, in terms of survival outcomes, but enough $$$ made the trip less unpleasant)

Let's look at this from the POV of Joe Taxpayer. He has a bad tooth, and thinks he can scrape up enough to go for a bridge - until you say that prisoners must be provided with implants. Once he pays the taxes for that, he can't afford the bridge anymore, and has to live with the gap.

As for the wrongfully convicted, yes, the outrage of say getting a bridge instead of an implant adds to the outrage of being wrongfully put in a cage. To my mind, though, the right thing to focus on is minimizing the wrongful convictions in the first place. To put it in stark terms, you have $X to spend, and you can spend it on providing the most expensive level of care to all inmates (since you don't know who is wrongfully convicted), or you can instead spend that $X on the public defenders office/forensics lab/etc to try and reduce the number of wrongful convictions in the first place? Is the absolute top tier medical care the obvious priority? Or not wrongfully convicting you so you are free to buy your own implant?

(I grant that pretrial detainees are the most compelling case)

[Rossami]

Your counter-examples are still missing the doctor's prescription. Consider your first example. I agree that you have those three choices. A good dentist will give you those three choices. And whichever of the three you choose, you lose nothing (except time) by taking the cheaper choice. That is, you can live with the gap but get an implant if/when your financial situation improves.

The scenario above calls for a different example, I think. Or we could go back to the original situation. Convict is treated for prostate cancer. Treatment causes a common side-effect (erectile dysfunction). Left unaddressed, the side-effect will likely become permanent. Doctor prescribes a second treatment to resolve the side-effect. Prison refuses - and given the relative prices between prostate cancer surgery and some pills, I am skeptical about cost being the driver of this decision.

[Absaroka]

Sure. With the disclaimer that IANADoctor, the case at hand seems like a cheap mainstream treatment, and therefore precisely the kind of treatment that must be provided to inmates.

Let me state that more precisely: I think inmates must be provided what you might characterize as 'median' care, i.e. the type of care that is generally available to most non-inmates.

I am pushing back against two concepts:
1)that, because they are incarcerated, they have a right to the absolute best level of care available at any price, even if that price is high enough that it excludes the bulk of the non-incarcerated population.
2)that health care is a binary thing, good/bad, vs. having a spectrum of quality like everything else, from food to cars, has.

"Your counter-examples are still missing the doctor’s prescription."

Believe it or not, the oncologist absolutely did prescribe the fancy anti-nausea drugs et al. for my wife. In fact, even with our gold plated insurance the onco had to write letters of justification for them. My sense was that getting coverage for them was relatively unusual. For the people who had more mainstream coverage, they just got the bottle of (also prescribed!) pills.

[Rossami]

Argghhh!!! First, my apologies for the malformed italics tag. Can we PLEASE have an edit button?

Second, I did not say (and I hope never implied) that I believe that incarceration gives you a right to gold-plated care. My opinion is that it gets you a right to adequate care as defined by the doctor. Or if you think the doctor is a quack, as defined by some reviewing panel of doctors. Either way, not as defined by the prison warden.

I believe this for the same reason that I believe we owe a duty to protect prisoners from harm by other inmates while they are in custody. Their sentence was to serve time, not for example to serve time and be raped.

[anorlunda]

"He sued, and on the eve of an important hearing, the gov't removed him from the list."

That sounds similar to gov't actions to moot cash seizure cases just before going to court in order to block "perfected" claims resulting in award of lawyers fees.

NY State recently acted to moot a gun case coming before SCOTUS to avoid having it decided in court. When the case is dismissed, they can un-moot it.

Where is enforcement of legal ethics in the face of such blatant conduct as these? I understand absolute criminal immunity for prosecutors. Can the victims bring a action to disbar these attorneys? What the heck can we do to stop it?

[Squirrelloid]

There *should* be severe penalties for a government official acting to moot a case while it's pending in court *outside* of a settlement agreement with the victim. Probably requires an act of legislation (good luck with that).

[anorlunda]

That's why I think. Why doesn't the IJ try that approach rather than just an amicus brief? What say you John Ross?

[James Pollock]

So, if the government official realizes they've been wrong, and turns around and gives the citizen everything they asked for, they should be punished for that?

[Brett Bellmore]

What gave you the idea he got everything he was asking for?

[James Pollock]

"What gave you the idea he got everything he was asking for?"

The case was mooted. If there's still something that hasn't been addressed, the case isn't moot.

[James Pollock]

Also, it's my hypothetical, so "because I said so".

[Robert Beckman]

Yes, because otherwise they have no incentive to get it right the first time.

Should their punishment be milder the earlier they recognize their error? Sure. The cop who unlawfully detains you, but on the first prompting during the detention immediately releases you has caused less damage to the Constitution than the one who frames you in court, but they’ve still acted improperly.

[James Pollock]

OK, now what if it's two different cops. The first one runs you in without lawful reason, and then the second one sees that there's no reason to hold you, and releases you. And the suggestion is to punish the second one.

[Krychek_2]

When you have a badly behaved child, it’s usually the fault of the parents for not controlling the child. The child will do whatever she can get away with and it’s the parents job to limit it.

Likewise, it’s almost entirely the fault of the judiciary that the government behaves as badly as it does. The government will do whatever it can get away with and judges let them get away with murder, sometimes literally.

I once worked on a case in which a child died as the direct result of a government agency ignoring a court order. If a child died because I defied a court order I’d be lucky to avoid prison. But because it was the state, no one paid any penalty. Which means no incentive to comply with future court orders.

[awildseaking]

Curious about the self-castrating prisoner. Would the state be required to remove the limbs of someone with body integrity identity disorder? Because if the legal logic fails to address the scientific reality that you're performing a damaging, medically unnecessary surgery for someone who asserts a statement of opinion that is not medical fact, that's troubling. Bonus points that it is for no reason other than sociopolitical pressure.

[James Pollock]

If someone decides they have too many arms, should the government argue with them about it, or say "what the hell, it's your arm."?

You're taking the side that the government knows better?

[Brett Bellmore]

No, I think he's taking the side that he can cut his own damn arm off, then.

[PoxOnBothYourHouses]

I'd take the position that the state should not be required to perform elective surgery on an inmate. You lose some freedoms when you are convicted, and the trans- person should have to wait until s/he gets out have the surgery. If the person is going to continue to self-mutilate, the question of whether s/he is a danger to herself should be considered.

awildseaking is absolutely correct about the two forms of disorders and the sociopolitical pressures that lead to divergent outcomes.

[jubulent]

Only if you (unsuccessfully) try to remove the offending limbs first.

[Joe_dallas]

"And in en banc news, the Ninth Circuit—over the votes of 10 dissenting judges—will not rehear its earlier ruling that a prison's failure to provide gender confirmation surgery to a transgender inmate who had twice attempted self-castration violated the Eighth Amendment. "

Far worse is the Court participating / encouraging a devastating and permanent medical treatment for the mentally ill that has all the halmarks of a fad/ pseudo diagnosis de jour. Similar to the fad frontal lobotomy.

[James Pollock]

You seem to have recovered adequately.

[Bob from Ohio]

Leaned a new word: nonagenarian

I don't see why the principle De Minimis Non Curat Lex would not have taken care of this case. Its a dog, the owner is dead. Yet, we have years of federal court proceedings, not over yet. A waste.

[James Pollock]

So, you favor allowing the government to seize things from citizens, and, no problem, as long as they keep it until the owner dies?

[Bob from Ohio]

There were state court proceedings. Sufficient due process.

It was a dog.

[James Pollock]

It still is a dog. It was HIS dog, is the thing.

[glowend]

"Concurrence: The gov't has more than enough evidence already to send him away for a long time. Why is it even pursuing this?"

Because the government wants to set a precedent that they can force you to reveal your password. Could the concurrence be any more dense?

[James Pollock]

The concurrence seems to have picked up on the fact that whatever precedent the prosecution WANTED to set, they were not, in fact, setting.

[Krayt]

The government probably can crack it if necessary. They just don't want to because that reveals they have a technique, which would lead to upgrades. The more they can get around this with rulings, the more they can delay workarounds for still further upgrades.

[James Pollock]

What good is having a technique, if you can't use it to convict criminals?

[BadLib]

To save it for the most important case(s).

[James Pollock]

The next one is always more important, then? We can't use it on THIS guy, because we might want to use it on the NEXT guy...

[Krayt]

Welcome to the wonderful world of cryptography and what to do with the info. Go watch The Imitation Game, then read Cryptonomicon.

They let allied ships get sunk in WWII rather than rescue too many with miraculous planes "that just happened to be nearby that spotted U-boats", so as to not let on they had cracked the German codes.

[James Pollock]

"Welcome to the wonderful world of cryptography"

We'll bust the next guy, promise. For sure.

[TwelveInchPianist]

Well, they "busted" the Japanese Navy at Midway and then Yamamoto himself, so they did eventually get around to using the information.

Cryptonomicon has a stream of conscious description of Yamamoto flying through the jungle as his plane disintegrates, still strapped to his flight seat. He realizes that the codes must be compromised right before he hits a tree.

[sam123]

"Not at all. Any black man in the defendant's position would have felt free to walk away from this encounter. Dissent: Have you guys been watching the news? "

You guys characterize these sorts of cases in a really glib, self-righteous, manner.

The dissent here is really radical. We are going to have to vary our
reasonable person standards by the race of the defendant due the notion that said race has (on average I guess? idk how shed want to calculate it) different perceptions of the police and should thereby receive heightened 4th Amendment protection.

Youd think such a radical departure from traditional legal practice would require a treasure trove of evidence to bolster it. But the dissent lamely links to some NBC articles and a sociology paper.

Before adopting such a "color-conscious" legal framework, shouldnt we inquire into the reason for these differing perceptions of the police? What if, hypothetically, a certain group commits an outsize proportion of violent crime, and some high-profile cases in the news give them the perception that they are being pogromed by law enforcement,. But, in reality studies show that--controlling for their outsized rate of crime--they are no more likely to be killed by cops than the majority, and the high-profile news cases are either incredibly isolated cases or themselves distorted.

Under this scenario affording a racial group heightened 4th Amendment protections would be awarding them for their misperceptions of reality and co-ethnics criminal propensities.

[Brett Bellmore]

Oh, come off it, the suspect's race had nothing to do with it, a white guy would have felt equally constrained.

The courts are being quite absurd about pretending that you're free to walk away from a cop who is talking to you, so long as he hasn't said, "You're under arrest!"

[Noscitur a sociis]

If that's your assessment of the case, that's fine—but the dissent expressly argues that the defendant's race should be considered in determining whether or not a seizure had occurred.

[Brett Bellmore]

Yeah, I'm not required to think the dissent got it right, just because I think the majority didn't.

[bernard11]

I'm with Brett here.

[KevinP]

DEA agents who just want to have a friendly chat about his trip, the weather, and—oh, by the way—whether he is carrying any illegal weapons.

This sounds like the beginning of a steamy porn novel for Bloomberg and his many like-minded progressive Democrat friends.

[Sarcastr0]

How do you think support for that policy runs in terms of political parties?

[MatthewSlyfield]

Evenly bipartisan.

[TwelveInchPianist]

But Bloomburg was only trying to take their guns away. It just amazes me that one man can care so much.

[PoxOnBothYourHouses]

I'd take the position that the state should not be required to perform elective surgery on an inmate. You lose some freedoms when you are convicted, and the trans- person should have to wait until s/he gets out have the surgery. If the person is going to continue to self-mutilate, the question of whether s/he is a danger to herself should be considered.

awildseaking is absolutely correct about the two forms of disorders and the sociopolitical pressures that lead to divergent outcomes.

[MatthewSlyfield]

The plaintiffs are trying to make the case that a psychological disorder, makes the surgery medically necessary.

[James Pollock]

And others are arguing that the entity that should be deciding if it's necessary is the patient, not the government.

[MatthewSlyfield]

Which is stupid. Medical necessity is a decision for medical professionals to make.

[Alan Hohn]

So can we conclude that the courts have clearly established that government officials cannot commit most of the obvious violations of constitutional rights and we can revert to the status quo ante with respect to qualified immunity?

The fact that new precedent is always being established always struck me as a flaw in that whole doctrine. I know human beings are imaginative in the pursuit of evil, but once the courts have done us the favor of recognizing the obvious wrongness of the most common categories, how much room is left for QI?

[SusanLMejia]

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[Commenter_XY]

Damn, Judge Ho of the Fifth Circuit is a real firebrand. Holy Cow. I like the way this judge thinks. 🙂

[Jerry B.]

"Allegation: In disclosure statements required by federal law, President Trump not only disclosed debts he is personally liable for but also corporate debts he is not personally liable for, which obscures the information meant to be disclosed and frustrates the intent of the law."

So...

Trump doesn't provide the information we want. Crime!!
Trump provides too much information. Crime!

[James Pollock]

"Trump doesn’t provide the information we want. Crime!!
Trump provides too much information. Crime!"

Pretty much, yeah.

In much the same way that producing too little in response to a discovery request is a violation of discovery rules, and producing too much in response to a discovery request is ALSO a violation of discovery rules.

If you don't answer the question, that shows you're trying to hide something. And if you bury the answer to the question in cases and cases of documents that have nothing to do with the question, that's ALSO showing that you're trying to hide something.

[bernard11]

Not a question of "what we want," but of what the legal requirements are.

Of course Trumpists don't believe the law applies to Trump, so I get your confusion.

[MatthewSlyfield]

Well, the suit got tossed, so make of that what you will.

[James Pollock]

The thing is, unless he dies in office, there will come a time when Mr. Trump is NOT the President. Now, maybe a hypothetical President Cruz will continue to protect him, because they're members of the R club. But a hypothetical President Warren probably won't protect him, and now that Mr. Trump has established that the President is absolutely allowed to use the mechanism of the President to "investigate" political opponents... he has nothing to complain about, right?

Partisans never imagine the excesses of their team being committed AGAINST their team.

[Brett Bellmore]

Sorry, I thought the previous administration established that, by siccing the FBI on Trump's campaign using a fraudulent dossier as a pretext. Are you agreeing that heads should roll at the FBI for doing that?

[Krayt]

That's my complaint -- all this is just desserts for Donald "Lock her up!" Trump.

Neither side should be doing it. But investigating your opponents to hurt them is an annual game. As recently as Obama they had the IRS scandal, and also when S&P downgraded the US bond rating to merely hyperspectacular, he proudly announced an investigation into them.

This isn't "ancient history from the bad old days...of LBJ" much less previous admins.

The 4th and 5th orient about stopping the investigation of rivals. Lotta good it does when the powerful gear up though.

Most are a joke, defending one side or the other. Lock 'em ALL up, I say.

[MatthewSlyfield]

The suit was tossed for lack of jurisdiction, but the DC circuit court, which has decided almost every other case before it involving Trump against Trump, also said that the plaintiffs conclusion that Trump was required to only list personal liabilities is bunk.

But the text of the Act does not clearly direct filers to
disclose only their “personal liabilities.” Nor does the text
clearly prohibit filers from listing debts for which they are not
personally responsible. To the contrary, the Ethics Act requires
filers to report some liabilities for which they are not personally
13
liable, such as certain debts owed by their spouse or dependent
children. See 5 U.S.C. app. 4 § 102(e)(1)(E). In addition, the
2016 version of the OGE Guide advised filers that they must
report “liabilities of a trade or business . . . unrelated to the
operations of the business,” for which the filer would not
necessarily be personally liable. 2016 Guide at 268.

But like the statute, the
regulations do not prohibit a filer from disclosing more than
what is required or direct a filer to differentiate the debts. Thus,
the regulations do not create a clear and indisputable right to
relief.
Likewise, though OGE’s instructions for completing Part
8 of Form 278e direct the filer to “[r]eport liabilities over
$10,000 that you, your spouse, or your dependent child owed
at any time during the reporting period,” they do not clearly
prohibit the filer from reporting liabilities owed by a closely
held organization.

This specific issue of the disclosure requirements is dead and nothing about a President Warren (which will never happen) will change that.

[anorlunda]

"providing health care coverage without any restriction geared to healthy outcomes"

Does that mean that Medicaid must pay for faith healers and other quackery? If so, I have some great marketing ideas.

[James Pollock]

Surely you're not suggesting that the government can refuse to pay the faith healers because they're faith healers?
Next you'll be claiming that faith healing is less effective that vaccination or some nonsense like that.

[Commenter_XY]

That Third Circuit case makes me wonder. Ok, the guy is a scumbag with child porn. I get that. He refuses to decrypt the drive. Into the slammer.

But I wonder if the government stops there. Could they do the same for financial records? Property records? Medical records? Employment records? Smartphone data? It just seems to me that indefinite detention on the basis of contempt is a pathway to a lot of judicial and governmental mischief. Not to mention that there is a 5th amendment problem here (I think).

[fafalone]

Of course they don't stop there. That's why they're still pursuing this case, because the guy likely has child porn, so it's a perfect case to use to establish a precedent so they can eliminate the 5th Amendment.

It's working too. The 'forgone conclusion' doctrine was established when a law enforcement officer observed CP and the guy shut off the laptop right in front of him. Now it seems they've successfully used that to say when a complaining witness, with a pre-existing grudge, sees what they 'believe' is CP, and they have some inconclusive 'forensic evidence', that also makes it a foregone conclusion.

Not to mention the whole part where a judge can just jail you for 18 months without trial because they believe anyone who at any point knew the password, they remember that password for all time.

The whole point of the 5th Amendment here is supposed to be that you cannot be compelled to use the contents of your mind to aid in a prosecution against yourself. Decisions have either been incredibly uninformed or deliberately intellectually dishonest in drawing a distinction between disclosing the password itself vs. being ordered to type the password in. Same situation with claiming a password is more like a physical key than a combination to a safe.

If you have some papers in your house, but they're written in a foreign language, and the police are unable to locate a translator that understands how to convert the text to English, must you translate it?

These forced decryption cases have been appalling miscarriages of justice and a disturbingly Orwellian authoritarian overreach. There's just no getting around the fact that it's ordering you to use the contents of your mind to aid in a prosecution against you to produce evidence that may or may not exist and you may or may not recall how to access.

[fafalone]

Ah another week, another batshit insane qualified immunity ruling from the 5th Circuit. It's bad in every circuit obviously, but whenever there's a finding so facially absurd as to beggar belief, it's almost always a 5th Circuit decision.

Next week: Correctional officers give knives to female inmates and force them to fight to the death, then gang rape the winners and sell videos of the event online.
Fifth Circuit: Qualified immunity granted, prior case law only addresses death matches without weapons and gang rapes filmed for non-commercial purposes. No officer could be reasonably expected to know this conduct is not permitted.

[malcolmanderson]

Yes, this is very dangerous. I read about it in news