Short Circuit: A Roundup of Recent Federal Court Decisions

Crooked judges, learned intermediaries, and laundering lawyers.

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

In 2016, federal security officers at a VA hospital inexplicably attacked José Oliva, a 70-year-old veteran, as he was about to go through a metal detector, putting him in a chokehold, slamming him to the ground, and wrenching his arm behind his back, causing extensive injuries. Last year, the Fifth Circuit ruled that José's suit could not proceed because the Constitution provides José no remedy against federal officers no matter how badly or maliciously they behave. That cannot possibly be right, so now José, represented by IJ, is asking the Supreme Court to take his case. Click here to read more.

  • Ordinarily, intelligence agencies can refuse to respond to FOIA requests when it would imperil sensitive information to even confirm or deny whether records exist. Can they still do that when the President of the United States has confirmed the records' existence via tweet? D.C. Circuit: Possibly not, but the president would need to tweet a more specific tweet than the tweet he tweeted here.
  • Can the government search your cellphone, without a warrant or probable cause, merely because you are crossing the border? Yes, holds the First Circuit. "Basic" searches require no suspicion at all; and, with mere "reasonable suspicion" (less than probable cause) border agents can conduct an "advanced" search involving the use of external equipment to review, copy, and analyze your data. Moreover, contrary to the Ninth Circuit's prior decision, searches are not limited to contraband and can seek out evidence of other crimes.
  • Is an offer to pay $82.5k in settlement of "each of the Causes of Action" raised in a lawsuit an offer to settle the whole case for $82.5k, or is it an offer to pay $82.5k for each of the 8 claims raised (which is $660k)? Second Circuit: It is neither, and you people need to write more clearly.
  • Second Circuit: Connecticut's imposition of reporting requirements on cigarette manufacturers who have not signed the 1998 Master Settlement Agreement certainly injures those manufacturers, but it does not violate their rights.
  • The vast majority of cases heard by the Board of Immigration Appeals are decided by unpublished opinions. Nominally nonprecedential, these opinions are nevertheless frequently used by BIA, immigration judges, and government lawyers. But they're not used by lawyers representing immigrants, because the government doesn't make them publicly available. Second Circuit: Then they'd better start. Dissent: FOIA allows parties to request and receive documents; it doesn't allow us to compel ongoing public production of documents. SCOTUS better resolve this.
  • Perhaps tired of answering hypothetical questions about hypothetical crimes in order to decide whether certain state-law offenses qualify as "violent felonies" under the Armed Career Criminal Act, the Fourth Circuit in this decision certifies the hypothetical to the Virginia Supreme Court.
  • The owners of 106 acres of undeveloped Talbot County, Md. waterfront property challenge changes to zoning regulations, which had the effect of limiting permissible housing density on the land, as a regulatory taking. No dice, holds the Fourth Circuit. Sure, the changes reduced the value of the property from $3.2mil to $1.9mil, but even far greater reductions in value have been upheld against takings claims.
  • Arlington, Tex. police responding to a 911 call about a suicidal man discover him holding a gas can in a bedroom smelling of gasoline. One allegedly says, "If we tase him, he is going to light on fire." They pepper spray him, watch as he douses himself in gasoline, and then tase him. He bursts into flames and dies; his family's house burns down. Fifth Circuit: Qualified immunity.
  • Allegation: Woman temporarily staying with her cousin is repeatedly raped and sexually assaulted by her cousin's husband, an assistant warden at the Louisiana State Penitentiary. After his arrest, the district attorney refuses to investigate, gives him preferential treatment, and ensures that he's not indicted. Fifth Circuit: Can't sue a prosecutor for failure to prosecute or investigate. Concurrence: Shame on you if true, DA.
  • In 1984, when Tennessee established its 911 line, it must have seemed like a straightforward idea to pay for emergency call centers out of charges collected by telephone companies. In today's very different telecommunications landscape, the Sixth Circuit issues a knotty disquisition rejecting attempts to collect those same fees from providers of VOIP services.
  • Roma's Ristorante & Lounge, in East Troy, Wisc. is a favorite of Yelp contributor Debbi K., who, on August 27, 2020, enjoyed the chicken and ribs with choice of pasta or potato. On February 24, 2016, however, Roma's parking lot was the site of a drug-related sting operation gone wrong; a Walworth County deputy sheriff fired into a moving vehicle, killing one of the passengers. The dead man's estate sues the deputy. And to trial the case must go, holds the Seventh Circuit; fact questions about the incident preclude qualified immunity at this stage.
  • Throughout the 1980s, Cook County, Ill. Circuit Court Judge Thomas Maloney took bribes in exchange for acquittals. (His Honor ended up being sentenced to 15 years' imprisonment.) To mask the enterprise, the judge would come down especially hard on defendants who didn't cough up. A defendant in a 1980s murder trial didn't pay the judge, while his co-defendant did. But to deflect mounting suspicion Judge Maloney convicted them both anyway. State courts: NBD; there's no evidence Judge Maloney was actually biased against the non-paying defendant. Seventh Circuit: BFD; "[d]ue-process claims based on judicial bias require an objective assessment of the likelihood of bias, not just a subjective assessment of actual bias." (For those interested in the backstory of Cook County's corruption scandal, check out this book.)
  • Agitated man is arrested at a halfway house after destroying several pieces of property. He's taken to the Pulaski County, Ark. jail. At the facility, he "shrug[s]" off a deputy's hand, at which point another deputy slams him to the ground, knocking him unconscious. And to trial the case must go, holds the Eighth Circuit; fact questions about the incident preclude qualified immunity at this stage.
  • Nebraska woman gets intrauterine device implanted, suffers complications, and sues the manufacturer for breach of its duty to warn. Eighth Circuit: The manufacturer supplied enough warnings to the doctor who implanted the device, so Nebraska's learned-intermediary doctrine means the company is not liable to the woman. Judge Kelly, dissenting: How about instead of guessing what the Nevada Nebraska Supreme Court would do, we just ask them, using certification? (This week's Eighth Circuit decisions also display a three-way, intra-circuit split between italicizing citations (Judge Stras), underlining citations (Judge Kelly), and italicizing and bolding citations (Judge Benton). SCOTUS ALERT?)
  • Two Minnesota attorneys provide a masterclass on how not to lawyer. Seeking to protect adult film copyrights, they file infringement lawsuits and threaten public disclosure and crippling financial penalties ($150k per infringement) unless people illegally downloading the films fork over $4k. The attorneys start uploading movies to get more people to download them, form a series of corporations, obtain copyrights themselves, and even create their own films, all in an effort to get people to fork over the "settlement" money. They're eventually caught. One is convicted of money laundering and fraud, sentenced to 14 years in prison, and ordered to pay $1.5 mil in restitution. Eighth Circuit: Affirmed.
  • And in en banc news: Did a California trial court violate an accused rapist/strangler's due process rights when it allowed introduction of evidence that he had raped and strangled another woman three months earlier (a crime for which he was separately convicted and sentenced to death)? Fourteen judges on the Ninth Circuit think not, but that's still one short of what's needed for rehearing en banc.

In 2018, Carter Walker, a local reporter, submitted FOIA requests to find out what Lancaster, Penn.'s district attorney does with forfeited property and how the proceeds are spent. The DA's office resisted, leading to litigation, throughout which Carter, represented by IJ, won most of the requested records. This week, the Pennsylvania Commonwealth Court declared that the final category of records Carter was seeking should indeed be made public: the names of bidders of forfeited property at public auctions. Why might that be important? Just take our word for it. (Or don't.) The opinion is here.

NEXT: Bret Stephens' Spiked Story on the Donald McNeil Firing, Published by the New York Post

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  1. So I guess the Prenda Law saga is close to being completed?

    And why does it seem like the worst immunity cases, whether the court is right or wrong, always come from the Fifth Circuit?

    1. Never expected to see Prenda Law show up on Short Circuit.

      Mole whacked.

    2. “So I guess the Prenda Law saga is close to being completed? ”

      At least one of the principals is still alive, so… maybe.

  2. The vast majority of cases heard by the Board of Immigration Appeals are decided by unpublished opinions. Nominally nonprecedential, these opinions are nevertheless frequently used by BIA, immigration judges, and government lawyers. But they’re not used by lawyers representing immigrants, because the government doesn’t make them publicly available. Second Circuit: Then they’d better start.

    This seems quite right to me. The Supreme Court just decided that “can’t copyright the law” case, which is slightly different, but gets at the same thing.

    Prior to online research, California had a tradition of hard nonpublication and depublication of judicial opinions. (There have been cracks on this wall since the opinions started appearing in online database.) They basically didn’t exist. Nobody could cite them or rely on them.

    If you have that rule, then sure, you don’t have to disseminate case resolutions publicly.

    But once your system starts relying on decisions as precedent (including persuasive precedent), it’s only fair that everyone in the process has access to them.

  3. Throughout the 1980s, Cook County, Ill. Circuit Court Judge Thomas Maloney took bribes in exchange for acquittals. (His Honor ended up being sentenced to 15 years’ imprisonment.) To mask the enterprise, the judge would come down especially hard on defendants who didn’t cough up. A defendant in a 1980s murder trial didn’t pay the judge, while his co-defendant did. But to deflect mounting suspicion Judge Maloney convicted them both anyway. State courts: NBD; there’s no evidence Judge Maloney was actually biased against the non-paying defendant. Seventh Circuit: BFD; “[d]ue-process claims based on judicial bias require an objective assessment of the likelihood of bias, not just a subjective assessment of actual bias.”

    And I wrote about this one on Twitter this week. Absolutely right. It’s Pete Rose issue- betting on baseball is not only scandalous if he bet against the Reds, but even if he bet on the Reds. Similarly, having a judge on the take doesn’t only call into question the acquittals, but also the convictions.

    1. It really is sort of incredible that Maloney cases are still going on.

    2. Is the theory that he can bet on himself only sometimes, do worse when he doesn’t bet on himself in order to raise the odds for when he does?

      1. Sort of. Think of use of relievers as an example. In a game you bet on your team to win you are more likely to throw your best relievers. In games you didn’t bet on yourself to win you would be more willing to use your middle relief.

        And if the bet is on tomorrows game it can change what you do with your starter. Your starter is getting hit hard. You can pull him early and really use up your pen. But if you bet to win tomorrow you are more likely to ride your starter in this game.

        It’s also about the effects it would have on his bookie (he isn’t going to a casino). If he bets to win his bookie knows and adjusts the odds. If he doesn’t bet to win his bookie knows and adjusts the odds. And this bookie can obviously tell friends so they can benefit from the information.

        1. As I understand it, game fixing is often the spread and not who won. “Point shaving”

          1. Point shaving generally requires players to be in on it. And it is much harder to do in baseball than other sports because you have no control over how well the other team hits the ball; you barely have control over your self. In basketball it usually point shaving. And I believe most of the soccer scandals have been shaving as well.

            So I would say you are right as in some sports, and it is in those sports where it seems most scandals happen (though boxing and horse racing are seen as the easiest two to fix), but for baseball point shaving really isn’t practical, hence why the Black Sox scandal was about losing

        2. I don’t see why the second point is a reason to be against it. So long as the bookie (and those he tells) are only getting the bettor’s honest assessment of his team’s chances, as reflected in whether he decides to bet, why is that a bad thing?

    3. It’s not known as Crook County by the locals for nothing. Also, in Illinois, saying Cook County is equivalent to saying Chicago.

    4. Not at all the same thing. The Pete Rose thing was wrong. The only reason it’s wrong for a player to bet against himself is because he has a duty to try as hard as he can to win, and by betting that he’ll fail he’s creating an incentive for himself to fail that duty. Betting on himself only spurs him to do his duty, so what on earth could be wrong with it.

      Here the judge’s incentive was mixed, but he was clearly biased against those who didn’t pay him. The mere fact of nonpayment, together with his pattern of being tough with nonpayers, is enough to establish that.

      Bribery doesn’t just create the appearance of bias, it creates actual bias, regardless of the judge’s conscious intentions. Even if he’s determined not to let the bribe affect him, it does. And if he bends over backwards then it’s affecting him even more.

      1. ” The only reason it’s wrong for a player to bet against himself is because he has a duty to try as hard as he can to win, and by betting that he’ll fail he’s creating an incentive for himself to fail that duty.”

        That’s not the only reason. Pete was playing (and betting on) a team game. So the other possibility is that Pete is betting on inside information, he knows that a player (who isn’t Pete) has an undisclosed injury or disability. So the main problem is that Pete might choose to take a strike instead of swinging at a pitch he could have hit, but that isn’t the only possible way he could influence the outcome of the game against the interest of his employer (the team). Since he was also managing, he might put forth a weaker team by sitting players who should play and might play some players who should sit, which is a variation on willfully underperforming personally, or he might put a team on the field that was the best players he had available, (as he was supposed to do, as manager of the team) but cause them to conceal injury or other problems they were having, to get odds in his favor.
        Or, and this is another huge problem, the gamblers he was betting with might threaten him with disclosure of his gambling history, if he didn’t do as they instructed him to do, (i.e., to throw a future game).

  4. How about instead of guessing what the Nevada Supreme Court would do, we just ask them, using certification?

    Seeing that the case came out of Nebraska, they would probably be more interested in what the Nebraska Supreme Court would do.

    1. Maybe the Nevada Supreme Court is smarter?

      1. Maybe they are, but their opinion on a Nebraska case is considerably less relevant.

    2. All flyover states are the same?

    3. Yeah, had to look at the link for that one – and sure enough, it’s a typo here, not a problem with the dissent itself.

    4. This is why the punctuation problem that follows this case note is such a problem. It’s distracting.

  5. It seems reasonable to mention that Samuel C. D’Aquilla is the person serving not only as defendant in that Fifth Circuit case but also as (ostensible) prosecutor in Clinton, Louisiana (and relative to defense counsel with respect to a rape case he failed to prosecute). Let’s hope the bar disciplinary authorities responsible for backwater Louisiana find that concurrence (for which Judges Ho and Graves deserve credit, and which Judge Owen deemed unworthy of her signature).

  6. “In 2016, federal security officers at a VA hospital inexplicably attacked José Oliva, a 70-year-old veteran, as he was about to go through a metal detector, putting him in a chokehold, slamming him to the ground, and wrenching his arm behind his back, causing extensive injuries. Last year, the Fifth Circuit ruled that José’s suit could not proceed because the Constitution provides José no remedy against federal officers no matter how badly or maliciously they behave. That cannot possibly be right, so now José, represented by IJ, is asking the Supreme Court to take his case. Click here to read more.”

    Sounds pretty bad.

    Let me ask about these Bivins actions – suppose there turns out *not* to be a federal remedy. Can the states [apparently Texas in this situation] move in to fill the gap?

    That is, if there’s a federal remedy against federal agents, I understand why the states should *not* be allowed to furnish their own remedy.

    But shouldn’t a state be able to provide a remedy if the feds don’t?

    1. The federal government has to waive sovereign immunity. In practice, tort claims against the government have to be brought under the Federal Tort Claims Act, and tort claims against government agent get turned into FTCA claims under the Westfall Act, which provides that the US is substituted as the defendant in most instances of claims against federal employees.

      The FTCA contains a sovereign immunity waiver, but it’s pretty limited and contains a lot of exceptions that make it difficult to bring these constitutional claims as ordinary tort claims. So- as to paraphrase Justice Harlan in his concurrence in Bivens- it’s Bivens or nothing.

      The contraction of Bivens is one of the more unpublicized bad things that the SCOTUS conservatives have done. They are so wedded to their abstract theory (that there’s no such thing as an implied cause of action) that they are perfectly willing to basically give the other branches of the government a license to violate the Constitution. It’s an absolutely crazy way to interpret the Bill of Rights, but they have done it.

      1. It always annoyed how people would try to portray Scalia as a great defender of the Fourth Amendment. He thought Bivens was unconstitutional. He thought the exclusionary rule was unconstitutional. And he never really questioned or opposed qualified immunity under 1983. He believed in a right without a remedy for being violated…which isn’t a right at all.

      2. So unless your suit is justified under Bivens or FTCA there’s no remedy, federal or state, against a federal official who mistreats you?

        This is what Congress and the Supreme Court have decreed, but by what authority?

        It’s one thing for Congress to specify that claims against federal officials must be brought in this forum or that – eg, federal court rather than state court – but I’d have thought it was a bridge too far to say that no claim can be brought against them by *any* court.

        (I’m speaking about suits against misbehaving officials – reaching into *their* pocketbooks, not the federal treasury, for damages.)

        I would suppose that one of the Ninth Amendment’s reserved rights was the right to a judicial remedy for wrongs committed. The Massachusetts Declaration of Rights is an example: “Every subject of the Commonwealth ought to find a certain remedy, by having recourse to the laws, for all injuries or wrongs, which he may receive, in his person, property, or character.”

        https://teachingamericanhistory.org/library/document/massachusetts-constitution/

        The opponents of the U. S. Constitution were supposed to be appeased by the 9th amendment by the assurance that the rights listed in the Constitution were not an exhaustive list but included other traditionally-recognized rights, of which I’d think the above was one.

    2. I would think they almost certainly could. Given that at the founding a violation of the 4th Amendment was remedied by a lawsuit against the peace officer for torts like trespass, false imprisonment, etc., I can’t see why that would be unconstitutional. Many argue that is the proper means and that Bivens was incorrectly decided.

      1. Thinking more this might have changed as the status of peace officers changed. I believe at the founding they were only considered state actors if they got a warrant first. If there was no warrant and the violated the reasonableness requirement then they weren’t protected as state actors. That, I think, is why sovereign immunity didn’t attach. The change in the way of modern policing making them always state actors might have (probably has) changed the analysis. This is part of the argument on why the exclusionary rule is proper and we can’t rely on civil claims.

  7. I have a real problem with the TASER case — intentionally doing something that you know will ignite a fire is called “arson.”

    Sure, the TASER use was acceptable under the rules regarding the use of a TASER as a use of force issue. They could have shot him — and probably should have — and that’s the issue the court answered.

    But what it ignored was the deliberately igniting a fire issue. They were familiar with TASERS, they knew that they emitted sparks when used, and anyone with a third grade education knows that sparks ignite gasoline. (So you prevent someone from lighting himself on fire by doing it for him?!?)

    How is what they did different from throwing lit matches at him?

    And what is TASER’s liability here?

    1. Technically, doing something you know will set a person on fire is called “murder”, not “arson”. Arson is reserved for setting property on fire, not people.

      I can’t see how TASER has any liability here at all. Setting aside that the TASER itself functioned exactly as it was supposed to, (Suppose they HAD thrown lit matches at the guy, would the match company have any liability?) there’s this warning from TASER itself:

      “Warning. Avoid Explosive/Flammable Materials, Liquids, and Vapors. A TASER device can ignite explosives and flammable materials, liquids, and vapors (e.g.
      gasoline, gases found in sewer lines, gases found in methamphetamine labs, butan
      e-type lighters, and flammable hair gels). Do not use a TASER device in the presence of any explosive/flammable substance without legal justification. Note that some self-defense sprays use flammable carriers or anti-freeze agents, such as alcohol.”

      1. “doing something you know will set a person on fire is called ‘murder’, not ‘arson’.”

        Or would be, if being on fire invariably caused a person to die. But it doesn’t.

        1. Getting shot doesn’t invariably cause a person to die, either. So there’s no murder case against somebody who shoots another, eh?

          1. Indeed.

            Murder is causing someone else to die with malice aforethought, so not causing them to die remains not murder.

    2. ” anyone with a third grade education knows that sparks ignite gasoline.”

      Get a little further in school, or maybe just go to a better one, and you can learn that gasoline is much harder to ignite than Hollywood would have you believe. Mythbusters tested the question of how hard it is to ignite gasoline, and it turns to to be fairly difficult. (Gasoline VAPORS, on the other hand, can become quite explosive if the ratio to oxygen in the air is right. Then again, so is sawdust or even non-dairy creamer, as demonstrated separately on a different episode of Mythbusters.

      1. Liquid gasoline does not burn, but it’s still gasoline once it evaporates.

        True story: At -30 degrees, you can put out lit matches in a pail of gasoline. The first 2-3 lit *wooden* matches will sizzle out as if they were dropped into water. But they *will* evaporate enough so that the 3rd or 4th will ignite it, at which point you will have enough heat to sustain the fire.

        1. Turns out it’s possible to dip you hand in molten lead, if your hand is wet and you’re quick enough about it. That’s another episode of Mythbusters.

    3. ” intentionally doing something that you know will ignite a fire is called “arson.””

      Except it isn’t. Not every fire is arson. Arson requires intentionally setting a fire that burns a structure or dwelling. Or starts a wildfire on land that isn’t yours.

    4. There is also the “least possible force” principle. The man was actively dousing himself in gasoline and attempting to light himself on fire. That eliminates almost all of the cops abilities to stop him. They took a risk with a TASER and it backfired. The argument “the gun would have been worse, and we were low on options” actually does make sense.

  8. I believe TASER’s product worked as advertised.

    The real story probably is: a panicked police officer fell back on his ‘training’ (meaning he reacted as had in the past). In the clutch he used the Taser – not fully thinking it through.
    Weird thing, I bet every police car has a fire extinguisher in the back/truck area (if not they probably should). They should have grabbed those ….
    Not saying it would have saved anyone, but it might have.

    1. If police cars are considered “commercial vehicles”, and I can’t see how they aren’t, Federal DOT regs require a 10 BC extinguisher.

      1. “B” includes gasoline, and “10” is 10 square feet of fire.

        Once the fire was lit — once he filled his lungs with superheated air — he was mortally wounded. It’ll take you a couple days to die, but once you’ve broiled your lungs, there really is nothing modern medicine can do but abate pain.

        But a 10BC extinguisher would have at least knocked the fire down a bit — three of them (they had at least three cruisers there) would have put it out if the person using them didn’t panic — and fire is legitimately scary.

  9. “Two Minnesota attorneys provide a masterclass on how not to lawyer.”

    Sometimes I think Dick was right.

    “The first thing we do, let’s kill all the lawyers”

    1. “… Hansmeier and Steele had provided legal authorization to download the movies when they caused them to be uploaded to file sharing sites.”

      Is that true?

      1. I think I would agree. The only purpose of putting something on a file sharing network is for others to download. So if they uploaded it there is implicit authorization to download it.

        Perhaps if it is a streaming site that also allows downloads it would be different since they are authorizing the public performance, the stream, but not necessarily the creation of a new copy, a download.

        1. “The only purpose of putting something on a file sharing network is for others to download. So if they uploaded it there is implicit authorization to download it.”

          Hansmeier and Steele used bit torrents to distribute their artistic works, so the implied authorization to distribute as well as copy.

  10. Assuming that the DA is game, this case seems ripe for criminal prosecution of the officers for assault and battery. If the events were as described, the attack was not merely an excessive use of force in performing their jobs but entirely unjustified. Or are they immune to prosecution by the state?

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