Short Circuit: A Roundup of Recent Federal Court Decisions

Recording the police, union speech, and repulsive comments.

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

This week, IJ launched the third edition of its landmark report on civil forfeiture, Policing for Profit. The report presents the largest ever collection of forfeiture data and updated grades for the civil forfeiture laws of each state, D.C. and the federal government, which together have forfeited at least $68.8 billion since 2000. It also includes a new analysis finding no increase in crime after New Mexico abolished civil forfeiture and the profit incentive in 2015. Click here to read more from ProPublica.

  • State wiretapping laws often bar secret unconsented recordings, but Massachusetts goes a step further and prohibits such recordings even in public places. First Circuit: That violates the First Amendment as applied to recordings of police, as history shows such "newsgathering" plays a critical role in public debate and can be conducted without interfering in police work. But we can't consider broader challenges to recordings of other government officials or other individuals without a reasonable expectation of privacy, as those challenges are overly hypothetical and not yet ripe.
  • Armed robber robs Pittsburgh store precisely when its safes are most likely to be full; he also knows about second safe that few others did. Yikes! There's no evidence that the man convicted of the crime in 2006 had inside knowledge of the store's operations, nor is he ever connected to the getaway car. Third Circuit: The fact that his fingerprint was on a manila envelope the robber left behind and the fact that he didn't match the robber's description (but also wasn't so far off that it necessarily excluded him) do not add up to proof of guilt beyond a reasonable doubt. Habeas granted.
  • After seeing a drug dealer repeatedly enter and exit a woman's house, Parma, Ohio police search the home and find over $68k in cash. Sixth Circuit: Because she did not present any evidence to substantiate her claim that she owns the money, she lacks Article III standing to challenge its forfeiture.
  • Eagle Towing—a Michigan towing company—finds itself brusquely removed from the towing lists of two Michigan State Police posts. But neither of the post commanders complied with the department's detailed, written processes for removing towing companies from the lists. A due process violation? District court: Potentially, and the company's property interest was clear enough to defeat qualified immunity. Sixth Circuit: Affirmed. Judge Sutton (dissenting): "Even assuming there is a protected property interest in staying on a towing call list, that interest is not clearly established." (No comment in the dissent on what some might deem the most controversial aspect of the majority opinion: its use of an all-caps "NO" for emphasis on page 7.)
  • In March 2020, the Sixth Circuit held 2–1 that a lawsuit alleging sexual harassment in a University of Michigan executive MBA program could proceed to trial. But the dissent wins the day, as the en banc Sixth Circuit reverses, holding that the university appropriately escalated its response to the alleged harasser at each stage.
  • Does forcing public union members to vote—when they'd rather not vote—on whether to keep their union certified violate their right to free speech? How about preventing them from bargaining about anything other than base wages? Is that a speech thing? Well, the Seventh Circuit told a Wisconsin union that it doesn't matter because either there's no standing or the court has already said this stuff before.
  • In the Ninth Circuit's view, the Supreme Court's recent ruling in Roman Catholic Diocese of Brooklyn v. Cuomo "arguably represented a seismic shift in Free Exercise law." It also compels the result in this nearly identical case, in which churches successfully challenged Nevada's COVID-19 restrictions on in-person church attendance.
  • Allegation: Woman sentenced to Stevens County, Wash. work crew for 81 days must listen daily to county employee's "repulsive comments regarding masturbation, sex, and other people's wives, daughters, and girlfriends," among much else. Which was "inappropriate and unacceptable," says the Ninth Circuit, but not cruel and unusual. Qualified immunity. And no suing the county either.
  • Pretrial detainee sues Jefferson County, Colo. jail, alleging guards put him in proximity to another inmate despite an order not to and then didn't intervene quickly enough when that inmate attacked him, resulting in a five-day hospital stay. His complaint, filed without counsel, is dismissed as frivolous, and he misses the deadline to appeal. Man: I am homeless. I don't have an address or phone number. Tenth Circuit: The complaint was properly dismissed. But we think he can try to revive it.
  • Allegation: Denver and Aurora, Colo. police arrest suspect outside his apartment. They don't have a warrant to search the apartment, and the suspect repeatedly denies permission to enter, but officers go in with guns drawn, finding suspect's sleeping infant. Tenth Circuit: We have caselaw saying you can sue officers who fail to intervene to stop other officers from using excessive force or making unlawful arrests. But this is an unlawful entry claim, and there are no (published) cases about failing to intervene in those. Qualified immunity.
  • Abortion protestors sue City of Norman, Okla., challenging the city's disturbing-the-peace law. (Some of the protestors had previously been cited under the law for shouting, using loudspeakers, and the like.) District court: The protestors' request for a preliminary injunction is denied; their First Amendment challenge is unlikely to succeed. Tenth Circuit: Just so. The law targets the volume of speech, not the content.
  • During Parkland, Fla. high school shooting, the police officer in charge of school security stood outside the building with his gun drawn and made no attempt to intervene. Police responding to the shooting likewise "staged" outside the school. Students sue, claiming this lackadaisical response violated due process. Eleventh Circuit: Police do not have a duty to protect schoolchildren from harm, as they are not in police custody. Students can state a due process claim only if they allege that police intended to cause them harm, and the students allege nothing like that here.

If not for the pandemic, Elizabeth Brokamp could provide talk therapy to D.C. residents in person in Virginia, where she is a licensed professional counselor. But now she is only seeing clients online, and she cannot talk to new D.C. clients at their D.C. homes without a D.C. license. As a result, when D.C. residents have contacted her asking for help, she has had to turn them away. Now Elizabeth has joined with IJ to challenge D.C.'s licensing restriction as a violation of the First Amendment. Talk therapy is speech; Elizabeth doesn't prescribe drugs or do anything other than talk. And under the First Amendment the government cannot prohibit unauthorized talking. Click here for more.

NEXT: Libel Case Can't Be Litigated with Alleged Libel Sealed -- and the Alleged Libel Is Now Unsealed

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  1. Regarding Civil Asset Forfeiture, maybe my take is a bit naive, but seems to me that the burden of proof should be on the state, not the person whose property has been taken. i.e. the proper legal standard would be to require the state to prove in court by a preponderance of evidence that the property was obtained by or used for criminal activity.

    Requiring to forfeitee (if that’s a word) to prove a negative is absurd, as well as a violation of the takings clause.

    But I suppose what seems obvious to me is not so obvious to those who benefit from the practice. I’d be interested to hear the legal reasoning on why my naive non-lawyer interpretation hasn’t gotten any traction with the courts.

    1. And even if the burden is on the forfeitee, why is “naked possession” insufficient to show a colorable interest in the money, absent any evidence to the contrary?

      1. As I’ve said in the past, what judges do is “due-process” theater, designed to give the appearance of fairness, not to provide actual fairness.

      2. Well, that’s another aspect of it that I don’t quite understand, but if the burden is to prove the negative, “possession” and “interest” are orthogonal concepts.

      3. If I pick your pocket, why isn’t naked possession sufficient to show that my wallet has a driver’s license in it with your picture for some reason?

    2. Regarding Civil Asset Forfeiture, maybe my take is a bit naive, but seems to me that the burden of proof should be on the state, not the person whose property has been taken. i.e. the proper legal standard would be to require the state to prove in court by a preponderance of evidence that the property was obtained by or used for criminal activity.

      I share your naivete. It’s worse than ridiculous for the police to be able to come in, seize cash, and then refuse to give it back unless you can prove you are entitled to it. WTF.

      1. Agreed, but I haven’t heard a reason why they can do this, other than “because they can”.

        1. Here’s a reason other than “because they can”: Fuck You, That’s Why.

      2. 25 years ago there was a cops episode where a good ol’ boy pulls over a Mexican family, searches the trunk, and finds $8000 in cash in a tire.

        He takes it as drug money and sends them on their way.

        Congress had hearings where members got angry, wondering why this cop wasn’t arrested for theft. It’s good to know they did something about it by making this process easier.

    3. “But I suppose what seems obvious to me is not so obvious to those who benefit from the practice. I’d be interested to hear the legal reasoning on why my naive non-lawyer interpretation hasn’t gotten any traction with the courts.”

      Here is what I understand the reasoning to be.

      Civil Asset Forfeiture law allows the government to bring suit for forfeiture against the property in it’s own right, rather than against the owner of the property.

      If you actually look up forfeiture cases brought by the government you will see case titles like United States vs Blue Mazda.

      The property has no rights. No right to a presumption of incense, no due process rights, no right to an attorney.

      1. Oh there’s plenty of incense in this situation.

    4. Civil forfeiture isn’t against the person whose property is being seized. No, no, no, it’s against the property itself, which stands accused of being ill-gotten and dirty, but since the property isn’t a person, Constitutional rights of people aren’t involved when the property is seized. If this sounds like bullshit to you, it is because you are not a lawyer.

  2. Police do not have a duty to protect schoolchildren from harm, as they are not in police custody. Students can state a due process claim only if they allege that police intended to cause them harm, and the students allege nothing like that here.
    >>>>>>>>>>>>>>>>>>>>>>>>>

    Hear that? Daddy Government won’t protect you yet he also won’t allow you to protect yourself.

    1. When seconds count, the police are standing around outside because they don’t want to risk getting hurt.

      1. Don’t be silly the police aren’t just standing around doing nothing, they have their thumbs up their asses.

        1. Be glad they aren’t prodding YOURS.

  3. If a school has on-site police presence, and if the students are not free to leave any time but will instead be stopped by the on-site police, then how are they not in police custody?

    1. Being in school custody is not the same as being in police custody.

  4. For people here talking about “burden of proof”, the issue here is not burden of proof. The issue is standing.
    The police have $68 thousand they seized. Who has standing to sue to get the money? You? Me? There are seven billion people in the world, does each one of them deserve his day in court?
    In this case, the person attempting to sue lived in the same house where the money was found. If you believe that should have been proof enough, ask yourself: what if two people had lived in the house? Would both have them been entitled to the money? Would they have split it, or would the state have been required to give each of them the same sum of money?
    All she needed to do is make the bland (but sworn) statement, “It was my money, which I earned working at —–.” Then the burden of proof would have switched to the state.
    There are many things to be unhappy with about the current civil-forfeiture regime, but standing is not among them.

    1. Well, one thing’s for sure. The owners of that money are not people who live outside the house.

      1. au contraire. The police own that money, and not one of them lived inside that house.

    2. > All she needed to do is make the bland (but sworn) statement,
      > “It was my money, which I earned working at —–.”
      > Then the burden of proof would have switched to the state.

      You make it sound so simple. I seriously doubt that it is or almost every case would be simply decided that way.

      1. So… how do you think it actually works then?

        1. I honestly don’t know.

          But I do know that attempts to regain seized property have a low success rate, and if all it took was a sworn statement that the property was lawfully obtained, the success rate would be quite high.

          So, it doesn’t add up.

          1. What you really need is a sworn statement AND some evidence that you can point to that shows that you could have had that much money. That second one is usually the problem. But not even claiming it was your money when the cops took it is definitely going to work against you later.

    3. As far as I understand it, there is no contesting claim to ownership of the money.
      In the case where the money was found in her house – in other words, in her possession – and she says it belongs to her, what basis does the government have for seizing it in the first place? Is the government claiming the money belongs to it, and that hers is the contesting claim?

      I’m not sure how you could get better standing than saying “that belongs to me” when referencing something in your possession that the police took from you.

      1. ” Is the government claiming the money belongs to it, and that hers is the contesting claim?”

        the government is claiming that the money has no lawful owner, because it was unlawfully gained, and yes, they ARE considering her claim to lawful ownership as a competing claim.

  5. “We have caselaw saying you can sue officers who fail to intervene to stop other officers from using excessive force or making unlawful arrests. But this is an unlawful entry claim, and there are no (published) cases about failing to intervene in those. Qualified immunity.”

    But what about the unlawful entry itself? Sounds like a dodge.

    1. This was an appeal by one of the officers over the tria court’s denial of qualified immunity for the failure-to-intervene claim. It does not address the viability of other claims that the plaintiff might have (and, I would guess, did) bring, against this officer or others.

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