Short Circuit: A Roundup of Recent Federal Court Decisions

Threatening a ref, double jeopardy, and slave labor.

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

Six months after seizing the life savings of retired railroad engineer Terry Rolin, 79, the Drug EA announced this week it would return the money. Agents seized the $82,373 from Terry's daughter, Rebecca, at the Pittsburgh International Airport even though it is perfectly legal to fly with that much cash. Neither Terry nor Rebecca were charged with any crime. Their lawsuit will continue, however, because it includes class action claims seeking permanent nationwide injunctions against both TSA's and DEA's cash seizure practices at airports. Click here for more from The Washington Post.

  • Congressional committee subpoenas Trump's former White House council Don McGahn to testify. DOJ: McGahn has absolute and total immunity from responding to subpoena. D.C. Circuit (over a dissent): This is really political stuff that courts shouldn't get involved with. The committee doesn't have standing. Also, we're going to be pretty unclear if this would apply in other contexts.
  • In 2007, imprisoned Chinese dissidents sued Yahoo for turning over their email account information to the Chinese government, which used the information to prosecute them. To settle the case, Yahoo agreed to create a $17.3 mil fund to provide humanitarian assistance to dissidents and resolve claims by dissidents similarly harmed by Yahoo's collaboration with the Chinese government. Allegation: But Yahoo depleted the trust, violating its fiduciary duties. Yahoo: Trust? What trust? D.C. Circuit: The law of trusts is complex, but the allegations here are enough for the case to go forward.
  • New York City man is arrested at Black Lives Matter march for obstructing traffic and standing in the road. He sues. Allegations: I neither obstructed traffic nor stood in the road; the arresting officer's account was false. And accepting those allegations as true, says the Second Circuit, his case against the officer and the city can proceed.
  • Blogger seeks access to portions of video deposition played to jury, in which a former teacher at a New Haven, Conn. religious school testifies that the principal sexually abused a student; the teacher did not report it; and the teacher was himself the victim of the principal's abuse years prior during his time as a student. Second Circuit: A transcript is publicly available, and there is no need to release the video—especially since the blogger seems motivated by spite. (In separate opinions, the Second Circuit affirms the $21.7 mil awarded to the victim and an installment plan ordered to aid efforts to collect the debt. The principal is appealing his conviction.)
  • The feds give out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from so-called sanctuary cities and states that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Seventh Circuit (2018), Third Circuit (2019), Ninth Circuit (2019): No. Congress never gave the AG the authority to impose blanket conditions on the program. Second Circuit (2020): Congress gave the AG permission to impose conditions by requiring all grant applicants to comply with all applicable federal laws. Which laws are applicable? That's for the AG to decide.
  • UberBLACK drivers control their hours and can work for Uber's competitors or for themselves. District court: So they're independent contractors and not employees, and federal minimum wage and overtime requirements don't apply to them. Third Circuit: Not so fast—a fact-finder needs to take a look. Uber forces drivers to close the app if they want to work for a competitor or themselves, fires drivers who fall below a 4.7 out of 5-star passenger rating, and limits the number of consecutive hours drivers can drive, all of which and more might indicate that Uber exerts enough control over the drivers to make them employees.
  • Police officers knock on door of Richmond, Va. home and smell marijuana smoke when the occupant appears. Moments later, they find a still-smoldering joint atop a trash can. They then get a warrant to search every nook and cranny of the home for drug-related items, yielding more marijuana, along with cocaine and a handgun. Yikes! Occupant: But you already found the source of the marijuana smoke, so the warrant was overkill. Fourth Circuit: The warrant was just fine. Conviction affirmed.
  • When Congress created the Consumer Finance Protection Bureau, it decided that the agency would be led by a single director who could be removed only by the president for cause. A violation of the separation of powers? The Supreme Court heard oral argument on that question on Tuesday. Fifth Circuit (also Tuesday): Well anyway, here's our opinion on the question: The CFPB's structure is constitutional. Dissent: Less than a year ago, sitting en banc, we ruled that the structure of the Federal Housing Finance Agency, which has the exact same structure as the CFPB, was unconstitutional. That precedent controls.
  • TSA discovers $39k in an Ohio man's carry-on luggage. Yoink! We'll be keeping that. Property owner: That's my money, give it back. Gov't: Not unless you answer our questions about how you got the money. Property owner: I'm not doing that; I'm pleading the Fifth. Sixth Circuit: And so there's no evidence that it's your money. The gov't gets to keep it.
  • Allegation: Shortly after a black inmate at a Michigan prison objects to a white guard referring to him as "Bubba" and "boy," the guard "discovers" heroin in the inmate's pocket. Although his drug tests come back negative, the inmate is tried—and acquitted—of drug possession. The inmate sues for malicious prosecution. Sixth Circuit: And the district court should not have dismissed that claim. There's enough evidence that the guard lied for this to go to a jury.
  • Parents of a transgender child suffering from suicidal thoughts, anxiety, and depression take their child to the hospital, which puts the child under psychiatric evaluation. A week later, the insurance company decides the child is fine and terminates additional coverage. Parents: Great, time to take you home. Hospital: Not without approval from Hamilton County, Ohio child welfare officials. Officials: Not without approval from the hospital. Litigation ensues. Sixth Circuit: The parents have plausibly alleged a due process violation against both officials and the hospital, which may have been a state actor here.
  • Troubled 14-year-old in Williamson County, Tenn. is arrested after allegedly crashing his mother's car. After he (maybe) threatens other juveniles in the detention center, jailors put him in solitary confinement for a month. A constitutional violation? Sixth Circuit: You can't do that to a mentally ill child today. But the law was not clear when this happened in 2013. Qualified immunity.
  • Ohio lets unexpectedly hospitalized voters request absentee ballots last minute. Unexpectedly jailed voters? Not so much. Which violates neither the Equal Protection Clause nor the First Amendment, the Sixth Circuit holds.
  • When a ref makes a bad call, what is the right response? Yelling at the TV? Taking to Twitter? Or the overreaction of certain Kentucky Wildcats fans to a 2017 loss to the Tar Heels—a harassment campaign involving hundreds of threats to the referee's family and false reviews of his side business? The ref: A Kentucky sports radio station should pay for fanning the flames. Sixth Circuit: Not so. The broadcasts were ignoble, but the First Amendment protects them all the same.
  • Motorist pulled over by Ohio trooper appears nervous; the trooper asks, among other things, to pat him down. The motorist nods slightly, but video is ambiguous as to what he's nodding to. The pat-down yields a gun (which he is not allowed to have on account of a previous felony). Sixth Circuit (over a dissent): Suppress the gun. Nervousness during a traffic stop does not create reasonable suspicion necessary to conduct a pat-down. And the driver's consistent confusion is not an unequivocal indication of consent.
  • Giles County, Tenn. officials contract with two private probation companies to supervise misdemeanor probation. Probationers: The companies extort money from those too poor to pay probation fees. Companies: Toss the case—we can't be sued. Sixth Circuit: Oh yes you can. Qualified and sovereign immunity don't help you here. (The county's bail system was preliminarily enjoined back in December.)
  • Motorist leads police on high-speed chase, is stopped, follows commands to stick his hands out of the window but declines to turn off the engine or exit the vehicle. It is still in drive, and he doesn't want to get shot if it lurches forward. Nor does he want to get shot for putting a hand back inside. A Southfield, Mich. officer unleashes a dog, which bites the motorist as he is dragged out of the vehicle. Excessive force? The Sixth Circuit says no.
  • Douglas County, Neb. officer catches boyfriend and girlfriend with marijuana, separates them, asks the girlfriend—for nearly an hour—what she is willing to do to keep her boyfriend out of jail. (She does some things. The officer goes to jail.) Can the girlfriend sue the sheriff, who didn't have a sex abuse policy or do any training for his deputies? The Eighth Circuit says no. Previous instances of deputy misconduct included "trading cigarettes for a detainee's display of her breasts; licking a minor stepdaughter's nipples during horseplay; asking 'deeply personal and inappropriate questions' to members of the public; engaging in verbal sexual harassment; having consensual sexual contact at the office; and abusing work hours to conduct personal business or ask women out on a date. While this behavior is troubling, it is not enough to put a supervising official on notice that a deputy might use his position and authority to separate a woman from her boyfriend at the park and coerce her to engage in sexual contact with him."
  • TV station erroneously reports that Fergus Falls, Minn. car dealership is facing criminal charges for overcharging law enforcement when (oops!) it's just the car dealership's former manager. Is the dealership a "public figure" for purposes of Minnesota defamation law? Eighth Circuit: We're skeptical that the Minnesota Supreme Court really thinks that all corporations are automatically public figures, but we've said in the past that it thinks that, so that's what we're stuck with.
  • Allegation: St. Louis routinely demands bail for pretrial detainees without determining whether each is able to pay, a flight risk, or a danger to the public. Instead, a bond commissioner recommends a certain cash bond be set, the judge on duty usually accepts that recommendation, and those who can pay get out, while those who cannot stay behind bars. Five weeks later, those who are held get a bail review hearing, but still judges routinely fail to tailor bond to arrestees' individual circumstances. St. Louis: New rule: Courts may not impose cash bail without an individualized assessment of an arrestee's financial circumstances, and a hearing must happen within seven days of the arrest. Eighth Circuit: Enjoining the old system without considering the new rule was inappropriate.
  • In 2017, former Maricopa County, Ariz. Sheriff Joe Arpaio was found guilty of criminal contempt for willfully violating a court order that prohibited him from enforcing federal immigration laws. After conviction, but before sentencing, the president gave him an unconditional pardon, and the trial court dismissed the case. Sheriff Joe: And the court should have vacated my conviction, too! Ninth Circuit: No need to do that. The final judgment was dismissal; the conviction itself doesn't cause any harm.
  • Federal immigration law says that migrants who arrive in the United States may apply for asylum "whether or not [they arrive] at a designated port of arrival." In November 2018, President Trump issued a proclamation stripping asylum eligibility from every migrant who crosses into the United States between designated ports of entry. Sensing some tension between these positions, a district court enjoined the new policy. Ninth Circuit: As well it should have. Apart from being an arbitrary and capricious interpretation of federal immigration law, it conflicts with treaty obligations that have existed for more than 50 years.
  • Federal immigration law says that the government is prohibited from removing an alien to a country if the alien convinces the attorney general that his or her life or freedom would be threatened. The Trump administration's "Migrant Protection Protocols" prohibit asylum screening officers from asking asylum seekers whether they fear that their life or freedom would be threatened upon being returned to Mexico. Instead, "[t]he MPP requires asylum seekers—untutored in asylum law—to volunteer that they fear being returned to Mexico, even though they are not told that the existence of such fear could protect them from being returned." Ninth Circuit: Which is a really, really clear violation of the law. The MPP is enjoined throughout the Ninth Circuit.
  • Last year, DHS and DOJ issued the "Third Country Transit Rule," under which noncitizens who try to enter the U.S. at the southern border after that date are ineligible for asylum unless they also applied for asylum in some other country, such as Mexico, that they passed through on their way here and … y'know what, you can probably guess where the Ninth Circuit is going with this one.
  • In 1889, railroad company builds railroad through Swinomish Indian reservation (a 15 sq.-mile reservation on the Puget Sound in Washington) without permission. After much litigation, the company finally obtains an easement in 1991 allowing it to run a max of one train of 25 cars in each direction per day. Yikes! Among other violations of the agreement, the railroad runs trains with more than 25 cars (including 100-car trains), sometimes more than once per day. Railroad: Federal law preempts the easement agreement. Ninth Circuit: It does not. And we regret that the railroad's attorneys' misrepresented case law in their brief.
  • For over a decade, one of the Big Three credit reporting agencies incorrectly placed terrorist alerts on the front pages of consumer credit reports and then sent those consumers confusing and incomplete information about how to remove said alerts. They knew this was illegal. Jury: $60 mil in damages. Ninth Circuit: The agency's conduct was reprehensible—but not so egregious as to justify such a high punitive damages award. $32 mil instead.
  • Fresno County, Calif. school system pays female math consultant less than male counterparts. Ninth Circuit (2018, en banc): Overruling precedent, we now say the fact that the male counterparts made more at their previous jobs is not a defense against her Equal Pay Act claims. SCOTUS (2019): Vacated. Judge Reinhardt died before the opinion was released, so his vote shouldn't have counted. Indeed, "federal judges are appointed for life, not for eternity." Ninth Circuit (2020, same en bancpanel but now with Bea instead of Reinhardt): What we said last time.
  • Allegation: Colorado inmate who adheres to Buddhism, vegan diet develops a severe case of gout after being fed exclusively pinto beans and steamed rice for lunch and dinner for months. He's transferred to a new prison where the "vegan patty" (served 19 of every 28 days) stinks, causes stomachaches, diarrhea, vomiting. Tenth Circuit: His claims about the vegan patty should not have been dismissed.
  • Current and former alien detainees at a privately owned immigration detention center file a class action, alleging that the private contractor's "voluntary work program" is actually slave labor. Contractor: The federal prohibition on slave labor doesn't cover private contractors or alien detainees. Eleventh Circuit: Actually, it covers both.
  • A 27-year-old Army sergeant is convicted of grisly 1985 Fayetteville, N.C. rape and triple murder, sentenced to death. The state supreme court overturns the conviction due to the prosecutors' extensive use of graphic photos; he's acquitted at a new trial. He reenlists in the Army and serves for many years before retiring. In 2006, a cold case review tests previously untested sperm samples from one of the victims. It's a match. But the state is stymied by double jeopardy—what to do? In steps the military, which recalls him to active duty, court-martials him for murder. The Fourth Circuit (2012) refuses to put a stop to the proceedings. He's convicted and sentenced to death. Court of Appeals for the Armed Forces (2020): Conviction affirmed. (Via CAAFlog. Get your longform journalism here.)
  • Wyoming police seize $470k cash during a traffic stop but wait nine months to initiate any formal forfeiture proceedings. Which violates the Due Process Clause, says the Wyoming Supreme Court. The state must return the currency. (Click here for some commentary on the decision.)
  • Allegation: After woman declines Kansas City, Kan. officer's sexual advances, the officer frames the woman's 17-year-old son for murder—part of a decades long pattern of misconduct that was well known to the officers' superiors, in which he coerced sex from vulnerable women, used them as informants, and framed innocent people for crimes committed by drug dealers. Can the then-teen (who spent 23 years in prison before being exonerated) sue the officer, a bevy of other officers who participated or failed to intervene, and the municipality? D.Kan.: Yes. Yes, he can. (h/t: @pebonilla)
  • After the director of a cabinet-level agency resigns, federal law requires the position of acting director to go to the resigned director's first assistant (until a new director can be confirmed by the Senate). So in 2019, when the director of U.S. Citizenship and Immigration Services resigned, his first assistant, Mark Koumans, became acting director—for nine days. On the 10th day, officials created a new position said to be above the old first assistant, allowing Ken Cuccinelli to leapfrog Koumans into the acting director role. Cuccinelli then issued directives making it more difficult to seek asylum, which five Honduran asylum seekers challenge. D.D.C.: Cuccinelli is not legally in charge of USCIS, and the new rules must be set aside.
  • St. Paul and Minneapolis both require landlords to provide voter registration info to tenants. Unconstitutional compelled speech? D.Minn: Indeed so. The cities provided no evidence that the ordinances boosted voter participation or that alternative, voluntary methods were insufficient, and we are not going to take their word for it.

In 2014, after his wife received a red-light camera ticket, Mats Järlström began to research yellow-light timing and determined that the equation traffic engineers have used worldwide since 1965 is incomplete, leading to too-short yellow lights. Mats presented his findings to the media, to traffic engineers and physicists, and to government officials, which drew the ire of Oregon regulators, who fined him for practicing engineering without a license. In 2018, a federal court ruled that that violated the First Amendment. And last week, the Institute of Transportation Engineers announced that Mats was right all along and voted to adopt his updates to the 1965 equation, which will improve safety at traffic lights worldwide. Click here for the technical details. And click here for more about the case.

NEXT: Liberty & Law Center Free Speech Clinic Seeks Free Speech Fellow

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  1. “Judge Reinhardt died before the opinion was released, so his vote shouldn’t have counted.”

    Does that mean he can’t be put on trial posthumously on the sexual harassment allegations?

    1. Trial? For sexual harassment allegations? How quaint. Don’t we just skip to the verdict?

    2. It was quite something how all the former clerks felt compelled to say, “I believe Olivia” instead of giving the only rational comment one can give in such a situation: “I wasn’t there, so I don’t know if the allegations are true or not.”

      Wokeness truly is a religion.

      1. That’s a good point: it is completely impossible to develop an informed about whether or not something happened if you didn’t personally witness it.

        1. Well, it’s hard to develop an informed opinion without information. You know, evidence. And the former clerk’s testimonials were short on evidence and long on faith.

        2. ” it is completely impossible to develop an informed about whether or not something happened if you didn’t personally witness it.”

          I wasn’t at the Sea of Tranquility in July, 1969, but I know what happened there at that time.

  2. That double jeopardy murder trial is a puzzler as to whether he’s actually guilty or not. Footprints three sizes too small, witness contradictions. I have no real opinion over his guilt.

    But the double jeopardy bothers me, and the fresh evidence bothers me. State and federal trials ought to be considered double jeopardy, no question in my mind, and the military horning in like that is just more of the same wrong. On the other hand, I think fresh evidence should always be considered, whether the initial trial convicted or acquitted. There are a lot of other cases where someone on death row can’t get a new trial because it’s too late and that ship has sailed. That strikes me as about as wrong as can be. It’s one thing to refuse to consider evidence which was known at the time and purposely ignored; you shouldn’t be able to leave things out just to drag things out afterwards. But evidence which was unknown at the time, or which could not be properly tested at the time, ought to automatically be considered.

    1. That case is infuriating.
      1. The court only had jurisdiction if it could show he couldn’t be tried in a state court (among other courts). They determined the plain language means even though he could and was tried in state court, twice, since he now can’t because of DJ they have jurisdiction. That is baffling.
      2. They are only allowed to recall him to active service if it is “in the interest of national defense” (bold added). Trying him may very well be in the national interest, I see no way to say it is in the interest of “national defense.” The court didn’t even bother to analyze the difference simply declaring “Although the term ‘interests of national defense’ is undefined, we have no doubt that it includes recalling a retiree to face court-martial charges of killing three military dependents.” That isn’t legal analysis. And I have serious doubts that includes that unless the reason they were killed was their connection to the military. Even if they disagree a court should actually analyze it and explain it rather than give ipse dixit statements like that.

      It’s not even clear point 2 was necessary they may have had personal jurisdiction over him anyway as a retiree so I don’t what the point of recalling him was (or him appealing it as relevant).

      Other things that happened are debatable but reasonable, at least imo. But the two things above and especially the 1st part is mind boggling.

      1. Regarding point 1, part of the reason the statute exists is to ensure that justice is primarily handled by civilian courts where they also have jurisdiction in order to prevent the impression that the military is holding a court martial for show, and was going to acquit to protect the service member, whether or not he/she is guilty. The other reason is to not tie up military courts (which have to deal with crimes that have no civilian equivalent or which have no civilian jurisdiction) with issues that a state court can deliver justice on. It is clear that Hennis committed a crime under the UCMJ. It’s equally clear that (as the court pointed out) at the time the charges were preferred, the civilian court couldn’t try him. And because the statute doesn’t give a requirement for a specific reason *why* the civilian court couldn’t try him, it would be equally applicable if it were due to double jeopardy, an expiration of the statute of limitations, or some other jurisdictional issue. If one accepts the dual sovereignty premise, this is no different than charging someone in federal court after a state court acquits.

        Regarding point 2, keep in mind that the appeals judges, the trial judge, the members of the court (which serve a similar, but somewhat different role than a jury), attorneys on both sides, and the defendant are all military members, and are therefore well aware of attitudes and understandings that a civilian might not be. In this case, in writing the decision, the appeals judges are certainly aware of the aspect of military culture that says, “The Army (Navy, AF, Marines) takes care of our own.” That taking care of our own includes both taking care of dependent family members and cleaning up the messes that our service members make. The “interest of national defense” that this is in is that if we don’t seek justice when a military dependent is killed by a military member, we’re failing in both of those aspects of taking care of our own. That failing *will* create significant morale and effectiveness issues surrounding deployments – if the Army won’t take of my family while I’m away, I’ll be less willing to be away, and when I am away, I’ll spend more time worrying about my family, distracting me from the job at hand. If we fail to take action when service members commit crimes off base, those who would consider committing crimes off base may think, “Hey, if the civilian cops don’t catch me, the Army won’t pursue it” – which is not an attitude we want to propagate.

        Regarding the final issue you raise on point 2, the UCMJ requires a service member to be on active duty in order to bring them to court martial. So if a reservist commits a crime while on duty, the military has to order him to active duty for trial. Likewise for a retired service member. And in the case of retired service members, the military retains jurisdiction over them when they leave active duty because their military status continues – there are several conditions under which retired service members can be recalled to active duty, both voluntarily and involuntarily. Being tried by a court martial is one of the involuntary reasons.

        1. I don’t find that argument for 1 persuasive. Remember this clause only applies when there was interruption in service and the crime occurred before that. If there is continuous service then the restriction doesn’t apply. Those purposes are just as strong though in cases of uninterrupted service so I see no reason they should defeat the general rule that an interruption in service removes jurisdiction over that crime. It makes sense to except offenses that are only violations of the UCMJ because otherwise they get off free, but a crime with a civilian analogue can be punished.

          For point 2 I still say all those are great reasons to say national interest. That it is national defense is stretch. At the very least that wouldn’t be plain meaning but more a term of art used in the UCMJ. Further my biggest beef as I said was that they didn’t even bother to do analysis or explain. If it is raised by the party a court should explain it’s ruling regardless of how clear they think it is. Military court or not it is still a court of law.

          As to your last sentence the way I read the opinion suggests that isn’t the case. Court martial may be the motive to recall but the statutes and regulations don’t list that as a valid legal reason to recall, that is why they talked about national defense. But the need to be recalled to active duty does at least answer why that was in there.

        2. Minor correction: the judges on the Court of Appeals for the Armed Forces are civilians, and indeed former military officers are ineligible for appointment in the first seven years of leaving active duty. See 10 U.S.C. § 942(b)(4).

          Although not required, all 5 of the current judges on the court are former military, and even someone who had never served would, I think, necessarily develop an understanding of the military culture you’re describing, so I don’t think it affects your larger point in any meaningful way.

      2. “They are only allowed to recall him to active service if it is ‘in the interest of national defense’ ”

        Which it was, to protect the nation from him.

  3. On the TSA stealing 39k from a man – why does he have to prove its his money? He had possession of it, that makes it his money unless the government can prove its not, doesn’t it?

    1. Whose image and inscription are on the currency?

      https://en.wikipedia.org/wiki/Eye_of_Providence#/media/File:Dollarnote_siegel_hq.jpg

      The Illuminati and its agents get to reclaim the money at any time.

    2. Not under the rules for civil forfeiture which, believe or not, are less unfair than they used to be. From the Decision:

      “On appeal, Wells argues that the government must first establish that it lawfully seized the defendant property before Wells is required to provide more than a mere assertion of ownership to support his claim. Wells is wrong. Before determining whether the government lawfully seized the defendant property, Wells must establish that he has standing to challenge the lawfulness of seizure.”

      and

      “Pursuant to Rule G(6)(a) of the Federal Rules of Civil Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Civil Forfeiture Actions (“Supplemental Rules”), the government served “special interrogatories” to Wells seeking information testing his assertion of ownership over the defendant currency. In response to each interrogatory, Wells stated, “Claimant refuses to answer this interrogatory as he is asserting his Fifth Amendment right against self-incrimination.” The government then moved for summary judgment on the issue of standing, asking the district court to strike Wells’ verified claim and answer—along with Wells’ naked assertions of ownership made therein––due to Wells’ failure to respond to discovery requests aimed at determining the legitimacy of his alleged ownership interests.”

      1. “Pursuant to Rule G(6)(a) of the Federal Rules of Civil Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Civil Forfeiture Actions”

        That’s the sort of thing you expect to hear sonorously intoned by an indifferent bureaucrat in some dystopian novel.

        1. “Pursuant to Rule G(6)(a) of the Federal Rules of Civil Procedure’s Supplemental Rules for Admiralty or Maritime Claims and Civil Forfeiture Actions”

          Which clearly overrides the stupid fifth amendment – – – – – –

    3. Well, now the government has possession of it. That now makes it the government’s money, doesn’t it? How can he prove it’s not the government’s money? 😉

      Realistically though, it’s a common sense mechanism designed to deter criminal activity. It’s quite unusual to fly with tens of thousands of dollars in cash for legitimate purposes. But it does happen, on occasion. However, immediately asserting your 5th amendment rights against self incrimination, instead of offering a reason why it’s your money….well….I don’t have a ton of sympathy.

      1. Anyone capable of robbery is capable of kidnapping, why give the robbers a tool to imprison you (“you said that you wanted to go to the bank on Beecher Street, but this surveillance footage shows you were at the bank on *Beekman* Street, ha ha!”).

        1. “If you plead guilty to perjury, we’ll agree to keep your father out of this.”

          1. Throws dad under the bus.

        2. Because the Civil Asset Forfeiture Reform Act still requires you to establish your legitimate ownership of the property before it will be returned. You might not like it, but that’s the law.

          1. There’s another law, the 6th Amendment, requiring a jury trial to decide if someone’s guilty of a crime.

            1. Super. Not sure what that has to do with Civil Asset Forfeiture.

              I’m no fan of civil asset forfeiture, and have helped people get their money returned before, but your odds of getting your money back are much better if you comply with the existing requirements instead of just railing against the unfairness of it all.

              1. That position you just refuted sure seems untenable, that’s for sure. Have you found anyone who holds that position?

                1. Fuck, I confused that Fifth Amendment case with the Rolin case at the head of the article.

                  Well, who knows where that money came from? He could have been holding it for Pablo Escobar. It might have been the proceeds of selling an endangered lizard to Bob’s BBQ Shack. I guess we’ll never know, what with him taking the 5th.

                2. You tell me. You’re the one who brought up the Sixth Amendment.

                  1. I thought this was that case at the head of the article where the cops finally deigned to give back the money they took. No, apparently this is a different case where, legally speaking of course, se have no idea whose money it is, so the government may as well hold on to it.

                    And who knows where that pesky Sixth Amendment came from, probably a typo.

          2. Look, civil asset forfeiture laws developed in the context of abandoned maritime property. If no one was in possession of the property at time of seizure, then sure, you have to prove ownership of it to contest the government’s claim.

            But in this case they took the money *from his person*. He should have gotten a receipt from the government. That’s proof of ownership right there.

            There should be no obligation to prove ownership of items you were in physical possession of.

      2. I can’t prove that any of the bills in my wallet are “mine”.

        I couldn’t tell you where I got any of them. Although I do know that I’ve had them in my possession or they have been in possession of family members for less than 14 years (because I know I had not a single bill at that time). Beyond that (due to how we handle cash in our household), I’ve no clue.

        Worse, suppose in the past 14 years I had committed a federal crime such as knowingly retaining an extra $20 bill an ATM at a FDIC insured bank dispensed to me when I issued a request to withdraw $200 and it gave me $220 instead. When explaining to the best of my ability (the “whole truth” part) where each $20 bill came from in my wallet, I would have to explain that it is possible it came from the over dispensing episode — thereby incriminating myself.

        Okay, I don’t know if keeping the money from the ATM in that case is a federal crime, but in a world where the fact a machete used in an offense is used to justify federal jurisdiction over the offense via the interstate commerce clause, one must be cautious — it’s possible, for example, that a key part of the ATM currency dispensing unit was made in China and I certainly “used” that piece of the equipment. It’s also quite possible keeping the $20 bill is itself actually a federal crime.

        The burden should be on the government in this case. If they find a crime and get a conviction, perhaps they can keep the money if the court orders restitution.

        Asset forfeiture without government proof “beyond a reasonable doubt” should simply be declared unconstitutional. Perhaps this SCOTUS (or a post-Ginsberg court) will do that some day. One can dream.

        1. People travel with bills in their wallet all the time. There’s no suspicion of criminal activity. Fat wallet…no problem. Backpack full of cash? Suspicious.

          -$37,000 in cash on an airplane. Suspicious. Providing no reason why you have the cash and taking the 5th? Much more suspicious.
          -Having a full chem-bio hazard suit on an airplane. Suspicious. Taking the 5th amendment when being asked why you have it? Very suspicious. Maybe the suit should be seized….

          Like I said, there are selected reasons to travel with that much cash. It’s not wise, for a variety of reasons. Like “Someone stole my backpack full of cash and ran into the airport security line”. In that situation, security would likely seize the cash, then you would come up as the rightful owner with the reason why it’s yours. IE “Lifetime earnings from small isolated store, didn’t work off credit or banks”. They’d look at the other guy who takes the 5th, and eventually give you your cash back. Unless of course, you’ve got your view on the law and possession.

          But asset seizure “beyond a reasonable doubt” is an invitation to use the “law” to promote criminal behavior.

          1. Taking the 5th is very suspicious and people should face negative consequences for asserting it???

            Is THAT your argument? Is that REALLY your argument??

            Because if that is right, we don’t have a 5th Amendment, do we?

            1. You realize that the Fifth Amendment is only a “get out of testifying free card” in criminal trials, right? In civil trials, unlike criminal trials, the finder of fact is entitled to draw a negative inference when a witness takes the Fifth Amendment. And when you bear the burden of proof on an element, refusing to produce any evidence is not particularly helpful.

              1. This is the government taking someone’s money. You can call that “civil” if it makes you feel better.

                1. Recognizing reality for what it is doesn’t make me feel any better or worse. You can pretend it’s not treated like a civil matter if that makes you feel better, as long as you aren’t representing clients, that is. Because if you are representing clients, pretending that it isn’t a civil matter is how you lose your case by doing things like taking the Fifth Amendment instead of establishing ownership.

            2. Yes, taking the 5th amendment is suspicious. You may not like that fact, but it doesn’t make it not true. That’s just reality. If you’re walking by an area, and the cop stops you and says “whatcha doing here”, and you respond “I take the 5th amendment,” It implies either 1. You’ve done something criminal or 2. You’ve done something that could lead to criminal charges against you that you’d rather not say.

              Taking the 5th does not they are automatically guilty, but failing to provide a good legal reason for carrying that much cash on you is a poor choice. Taking the 5th may prevent criminal charges against you, but doing so instead of providing a good reason to have that cash on you will not help you in a civil forfeiture suit.

              1. They are holding it against him. They couldn’t do it in a crimiminal drug trial about this, including the money. Why can they use it as evidence for a seizure?

      3. It is also “common sense” to suppress speech, to ban guns, to require people to support the establishment of a state religion, to house troops in the homes of civilians, to ransack homes for evidence of crime with a general warrant. At least according to someone.

        Well, so according to you, “immediately asserting your 5th amendment rights” is a bad thing and you “don’t have a ton of sympathy”?

        Is the 5th Amendment a constitutional right or not? Because whether you have “sympathy” or not or whether you think a government intrusion is “common sense” is NOT the test.

        You clearly do not understand the mechanisms of either power or rights.

        1. It’s a constitutional right against criminal self incrimination.

          Against a civil lawsuit? Not so much

          1. Sure.

            Now, explain why we’re letting the TSA and other law enforcement steal people’s property without accusing them of a crime?

      4. “Guilty until proven innocent” is a “common sense mechanism”?

        Maybe in a dystopian novel.

    4. “He had possession of it, that makes it his money unless the government can prove its not, doesn’t it?”

      Even if the fact that he possessed it doesn’t make it his money, the fact that he possessed the money is certainly evidence that he owned it. I’m not sure why the court thinks there’s no evidence that the money was his.

    5. Yeah, I wonder how well a defense to an illegal gun or drugs would go if he was found with it but claimed it wasn’t his…

      1. That’s a good point. Can you imagine a court saying, well, they found drugs in his carry-on luggage, but he took the fifth when asked about them, so unfortunately there’s no evidence that the drugs were his…

      2. I don’t agree with the court here, but I don’t think this analogy works. The crime isn’t owning, it’s possessing. And as far as I know it not being his wouldn’t be a defense. Him not knowing it was there, possibly, but not simply saying it isn’t his.

    6. ” He had possession of it, that makes it his money unless the government can prove its not”

      He had possession of it, but the govt has possession of it now.

      Once the government has taken it, you have to prove that you have a stronger right to possession of it if you want it back.

  4. Note to judges in the UK-UNC case: There is only one referee in a basketball game. GTHC

    1. Unless you count the replay officials.

  5. The Oregon red-light case should result in the Oregon decision makers getting fired and engineering licenses revoked.

    This incident made the engineering profession look arrogant and petty.

    1. Oregon always had a problem with the Engineering Board claiming ownership of the word “engineer”. They forced Microsoft to stop calling Microsoft-certified System engineers “engineers” and start calling them “Solutions Experts”.

  6. The Appeals Court didn’t address the question whether TSA’s seizure of the money in Wells’s luggage was lawful, but I am still curious: Was it?

    1. Just going off the very brief description in the opinion, that’s more or less what the IJ case referenced in the first paragraph will decide. From the complaint:

      “The Transportation Security Administration (“TSA”) and the Drug Enforcement Administration (“DEA”) have policies or practices of seizing cash from travelers at airports without reasonable suspicion or probable cause and based solely on the amount of cash. TSA’s policy or practice exceeds the agency’s statutory authority and violates the Fourth Amendment. DEA’s policy or practice violates the Fourth Amendment.”

    2. Depends on you opinion of civil asset seizure and forfeiture.

  7. “Troubled 14-year-old in Williamson County, Tenn. is arrested after allegedly crashing his mother’s car. After he (maybe) threatens other juveniles in the detention center, jailors put him in solitary confinement for a month. A constitutional violation? Sixth Circuit: You can’t do that to a mentally ill child today. But the law was not clear when this happened in 2013. Qualified immunity.”

    And this, my friends, is what qualified immunity was intended for. Actions that are only illegal because of later Supreme Court cases, but are not obviously unconstitutional, like tackling someone for no reason or using pepper spray against a person for no reason.

    1. Let it go to the jury.

  8. “Golubski is correct that in 1994, no Tenth Circuit court had held that an officer violates the clearly established right to familial association by framing a son for murder in retaliation for the mother’s rejection of sexual advances. But every reasonable officer would have understood that this egregious conduct violates that right.”

    I wonder if this will hold up on appeal.

    1. You’re exaggeratng, right? Tell me I don’t live in a country where you’re not exaggerating.

      1. Er, sorry for the ambiguity – my Q above refers to the content of your comment.

        1. Well, the ninth circuit found that it wasn’t clearly established that cops can’t steal your money, even though the constitution explicitly says that states can’t deprive people of property without due process.

          1. I think the question there is whether its a constitutional violation. Clearly they broke the law, same as anyone else stealing your money.

            1. Well, the constitution explicitly says that the government can’t kill you, take your property, or imprison you without due process of law.

              So yeah, it’s a constitutional violation, so clearly established that we don’t need case law, it’s right there in the text.

          2. the challenge is determining what process is due.

  9. When someone is 79, depriving them of access to their life savings for six months is much more than a mere inconvenience.

    We should also note how asset forfeiture and the erosion of rights in general arose from the so-called “war on drugs.”

  10. Previous instances of deputy misconduct included “trading cigarettes for a detainee’s display of her breasts; licking a minor stepdaughter’s nipples during horseplay; asking ‘deeply personal and inappropriate questions’ to members of the public; engaging in verbal sexual harassment; having consensual sexual contact at the office; and abusing work hours to conduct personal business or ask women out on a date. While this behavior is troubling, it is not enough to put a supervising official on notice that a deputy might use his position and authority to separate a woman from her boyfriend at the park and coerce her to engage in sexual contact with him.”

    What??? This is definitely enough to put anyone with a brain on notice.

    1. Notice of what, exactly? And more to the point, do you really think that this deputy didn’t realize that he wasn’t allowed to rape women after arresting them, but would have figured that out if the sheriff had sent him to the right training class?

      1. Notice that the person was a pervert and a risk to society.

        So yes, the sheriff should be on the hook for not training this person. And YES I think that training can discourage behavior, because it can call out that behavior.

        It isn’t about whether he knew rape was wrong or not, but changing his way of thinking. And also breaking whatever hope there is in his mind that he will get away with it or that people haven’t noticed his deviant behavior.

        1. “Notice that the person was a pervert and a risk to society.”

          I’m pretty sure that was the list of all of the issues with all of the deputies, not just the pervert in this case.

      2. “do you really think that this deputy didn’t realize that he wasn’t allowed to rape women after arresting them, but would have figured that out if the sheriff had sent him to the right training class?”

        Maybe the rest of the officers should have been trained not to leave vulnerable suspects alone with any officer.

  11. Start watching at 41:00 if you want to see something of a nightmare for counsel at oral argument: https://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000015647

    I’m surprised to see such a prominent lawyer and firm have the integrity of their brief called into question by a court.

  12. Extrapolating from a holding that six individual members of Congress don’t have standing to argue that an act of Congress Is unconstitutional to a ruling that an authorized House Committee doesn’t have standing to enforce a subpoena against a member of the Executive seems Like an enormous stretch. It is highly questionable whether the legislative branch, let alone individual members, can be said to be aggrieved by laws that Congress itself enacted. But it is very well established that investigation is a core congressional function, and to this end an authorized House Committee can enforce a subpoena regarding a matter before it.

    1. I agree with ReaderY. In fact, the dissent lists four considerations that the Supreme Court cited in Raines v. Byrd, and concludes that none of them apply to the case at hand.

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