Short Circuit: A Roundup of Recent Federal Court Decisions

Furtive offenses, cable bundling, and a Twitter pile-on.

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

On Thursday, the Supreme Court released its decision in Brownback v. King, an IJ case about an unprovoked attack by two law enforcement officers on an innocent college student. And it wasn't a win for our client, James King (the student). But it was far from a loss. The case now goes back down to the Sixth Circuit, which will decide if James can have his day in court. Click here to read more.

  • Maine enacts a law requiring cable companies to offer channels—and even individual programs—a la carte. Cable companies sue, alleging the law violates the First Amendment. First Circuit: At the very least it implicates the First Amendment, and the government has conceded it has no evidence to satisfy any First Amendment standard, so preliminary injunction granted.
  • Believing that black people were more likely to commit "furtive offenses" as opposed to "the robust crimes of the whites," attendees at the 1890 Mississippi constitutional convention include crimes like burglary, theft, and arson—and not robbery or murder—in a list of offenses that will trigger a loss of voting rights. In 1950 and 1968, the list is amended to remove burglary and add murder and rape. Does the original discriminatory purpose mean that the current list violates the U.S. Constitution? Fifth Circuit (1998): No, the amendments removed the discriminatory taint. Fifth Circuit (2021): Our hands are tied by our earlier decision.
  • Allegation: Staff at North Richland Hills, Tex. jail knew pretrial detainee had epilepsy but did not provide medication. She suffers a seizure, falls, and fractures her hip. Instead of going to a hospital, she's transferred her to another jail (and only then to a hospital). Can she sue anyone? Fifth Circuit: No.
  • Following a particularly vigorous Twitter pile-on, a group of high school students sued a doctor from New Jersey and a comedian from California for their allegedly tortious tweets. And, being from Kentucky, they sued in Kentucky district court. Sixth Circuit: The defendants are not subject to personal jurisdiction in Kentucky, as they didn't do anything in the state. Their tweets were directed to the world at large, not to Kentucky in particular, even if they happened to be about Kentucky residents.
  • Allegation: Michigan prisoner tells staff that his cellmate has threatened him. Soon after, the cellmate beats him in the head with a softball-size rock in a mesh bag. Sixth Circuit: Qualified immunity.
  • Pro se inmate sues, alleging that his filthy cell conditions and bright lights that leave him sleep deprived violate the Eighth Amendment. He requests appointment of counsel six times and is denied each time. An abuse of discretion? Seventh Circuit: He actually did a pretty good job representing himself, and pro bono counsel is in short supply. No error.
  • At the end of a night of drinking, an off-duty police officer shot his friend in the head. The friend—now permanently disabled—sued the City of Chicago, claiming that the police department maintained a culture of impunity that led the officer to believe he could get away with the shooting. The jury evidently agreed, awarding $44.7 mil in damages. Seventh Circuit: The City cannot be held responsible under federal law for what is, in the end, an act of private violence.
  • Certain Minnesota sex offenders face civil commitment for an indeterminate period of time, able to leave only when state officials say so. Since the program started in 1994, 714 people have entered, and only three have left. Eighth Circuit (2017): The general structure of the scheme, including indefinite confinement, is fine. Eighth Circuit (2021): But the conditions of that confinement cannot be punitive, and the district court needs to evaluate whether these conditions (including double-bunking, harsh punishment for rules violations, and destroying property before a hearing) serve to punish.
  • Dissatisfied with California's management of the San Francisco Bay/Sacramento-San Joaquin Delta Estuary, the United States sues the state's Water Resources Control Board in both state court and federal. The claims are the same in both cases (they're state administrative-law claims), but in the federal case, the United States adds a federal claim of intergovernmental immunity. District court: Given the two overlapping cases, I'm going to stay the United States' state-law claims to allow their resolution in the state-court action. But the intergovernmental-immunity claim may proceed. Is that sort of partial "Colorado River stay" permissible? The world needs to know! Ninth Circuit: Generally, a partial Colorado River stay is not permissible, so the district court should allow all of the United States' claims to proceed.
  • Allegation: Oklahoma sheriff's deputy has beef with the sheriff, supports his political opponent: her husband. The sheriff is cordial throughout the election, but fires her the day after he is reelected. A First Amendment violation? Tenth Circuit: A clearly established one, in fact (assuming the allegations are true).
  • Suspecting New Mexico man of smuggling migrants, police meet him at home and request to search his house. After being rebuffed, they conduct a "protective sweep" of the house, during which they see a gun safe. Uh oh! He's a felon and can't own guns. Now police get a warrant, search the safe, and arrest him. Tenth Circuit: You did not do these things in the right order; evidence suppressed.
  • Allegation: Guards at federal prison in Atlanta strip restrained inmate naked and fondle his private parts. Eleventh Circuit: Which "we condemn in the strongest possible terms." But under the Federal Tort Claims Act, there's no remedy. He suffered neither a "physical injury" nor any of the types of "sexual acts" enumerated by Congress.
  • And in en banc news, the Second Circuit will not reconsider its decision rejecting a disparate impact challenge to a technology company's use of criminal background checks in its employment decisions. Multiple judges dissent, suggesting the panel improperly applied its own intuitions to reject the claims at the pleadings. And the panel concurs, defending the initial opinion as "common sense."
  • And in additional en banc news, the Fourth Circuit will reconsider its decision declining to inquire further into whether a juror's Twitter activities prejudiced the outcome in the mail-fraud trial of the former Chief Justice of the West Virginia Supreme Court of Appeals.
  • And in further en banc news, the Fifth Circuit will reconsider its decision requiring Dallas County, Tex. courts to hold bail hearings within 48 hours of arrest and barring judges from setting bail at prescheduled amounts.

Officials in Lantana, Florida are trying to force Sandy Martinez, a long-time homeowner, to cough up $165k for exceedingly trivial code violations. A single instance of parking ever-so-slightly off her driveway—in her own grass—accounts for over $100k of the total. She remedied that immediately, but unbeknownst to her a $250 per day fine accrued for over a year after code inspectors failed to come out and confirm she'd moved her car. Other violations include cracks in her driveway and a storm-damaged fence that she fixed as soon as her insurance company processed the claim. But Florida's Constitution bans excessive fines, so this week IJ sued the city in state court. Click here to learn more.

NEXT: After a year of pandemic, state legislatures look to strip Governors of emergency powers

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  1. You missed a few important details on the “Patrick Kelly shot his friend Michael
    LaPorta” case.

    Namely, it happened in 2010, Kelly lied to cops claiming it was a suicide, it took until 2017 for a review board to say “wow, this cop is horrible and tried to commit murder, we should fire him”, the firing recommendation was never acted on, for that matter, the department –after learning that Kelly shot LaPorta in the head and lied about it– refused to take any action, and Kelly retired in 2019, never facing any consequences for attempted murder.

    So basically, the police department was fine employing a man who casually attempts murder, lies on police reports. The seventh circuit is full of shit.

    1. That does sound pretty bad!

      I’m not following how it makes the city liable for violating the victi’s constitutional rights, though.

      1. “I’m not following how it makes the city liable for violating the victi’s constitutional rights, though.”

        Inadequate or negligent supervision of their employee?
        A failure of training?

    2. Well, great, but that wasn’t what the case was about right? The friend claimed damages based on the initial shooting. Now, if someone got hurt by that officer later and they brought a suit saying, you should have fired this person and you didn’t, that is a reasonable case to bring.

      But the plaintiff here had zero standing to go after the department for any of that, his injuries were based on the incident which was a private act.

  2. Maybe Congress can do something about qualified immunity abuse since the courts seem disinclined to.

    1. Sure, all they have to do is find a definition of qualified immunity that everyone agrees on. As long as everyone agrees how it SHOULD work, they should have no problem codifying it.
      You’re talking about a body that cannot currently even agree that the US economy needs assistance to deal with the effects of the SARS-COV-19 pandemic.

  3. “Officers proceeded to Defendant’s home and beat him there.”

    Has a lot different meaning for this 10th Circuit case than most Short Circuit cases.

  4. Thank you, John Ross. This recurrent post is very useful.

  5. “Seventh Circuit: The City cannot be held responsible under federal law for what is, in the end, an act of private violence.”

    Is this decision relevant to church sex abuse claims? Sexual abuse was not part of the job description of priests. It was acts of private sex abuse.

    The lawyer profession is attacking the church and other religions, except Islam, because they are 100 times more effective at persuading people to act in a moral way. They must be taken down. It is impossible to be molested more than once, and then only by surprise. Recurrent abuse implies consent. Going to the place of abuse implies consent. Someone tried to molest me. I pushed him away, and left. Not molested. Why is that hard for the dumbass lawyer to understand?

    1. “Is this decision relevant to church sex abuse claims? Sexual abuse was not part of the job description of priests. It was acts of private sex abuse. ”

      Protecting priests guilty of sex abuse by covering up the abuse and transferring the priest to a new area were ALSO not part of the job description of anyone in the church.

    2. “The lawyer profession is attacking the church and other religions, except Islam, because they are 100 times more effective at persuading people to act in a moral way.”

      Odd that you would bring up this claim following your taking note that sexual abuse was a bit of a problem in the Church.

      There was a case in Oregon. It seems that a young girl reported to her teachers (in the church-run school) that her father was sexually abusing her. Her stepfather was a prominent figure in the church community so the teachers did nothing. Of course, people paying attention while reading this noticed that the child accused her father, not the stepfather. Because her initial reports were ignored, the child suffered several months of abuse, and eventually the mandatory-reporters who chose not to report were liable.

    3. The church was attacked for the coverup, not the crime.

  6. “Colorado River is not an abstention doctrine, although it shares the qualities of one.”

    That’s an extremely pedantic and Blackman-esque distinction, right there. When I took Federal Courts we learned it as an abstention doctrine and I don’t think there was ever a debate over whether it should be called one or not. A quick search shows that other circuits do indeed call it Colorado River Abstention. Different Ninth Circuit panels have too.

    1. Agree. Before coming across this opinion, I had never heard of it being referred to as a Colorado River “stay”. If it didn’t appear in the context of a judicial opinion, I would have imagined a rafting vacation.

      It might be better if the court abstained from using that phrase in the future. Conversely, I fully support the widespread adoption of the phrase “pedantic, Blackman-esque distinction”.

  7. https://www.techdirt.com/articles/20210218/13113046272/fifth-circuit-says-tasing-person-soaked-gasoline-setting-them-fire-isnt-unreasonable-use-force.shtml

    Pure bullshit. I’m amazed that more people don’t take the law into their own hands with judicial opinions such as these.

    1. They did stop him from committing suicide by lighting himself on fire.

    2. “Pure bullshit. I’m amazed that more people don’t take the law into their own hands with judicial opinions such as these.”

      Start by asking “would the cops have been justified if they’d just shot the poor bastard?” and if the answer is “yes”, then tasing the bastard is also not a problem. (Don’t wander off on tangents like wondering if any court in the country ever has a problem with any copy shooting much of anybody… the question is “was use of force authorized”, not “did the choice of what force to use produce the ideal results”)

  8. Seems like a pretty thorough loss for King, in which the Court said, “Well, there is one other theory which he could try, which we are not passing on at present.”

  9. Daily fines should require daily proof of the violation.

    1. The total fine for the total violation should be reasonable. Otherwise why not accrue hourly, or minute by minute, to rapidly multiply up the highway robbers’ treasure haul?

      “We only charge a tenth of a penny per nanosecond! What’s your beef?”

  10. “Suspecting New Mexico man of smuggling migrants, police meet him at home and request to search his house. After being rebuffed, they conduct a “protective sweep” of the house, during which they see a gun safe. Uh oh! He’s a felon and can’t own guns. Now police get a warrant, search the safe, and arrest him. Tenth Circuit: You did not do these things in the right order; evidence suppressed.”

    The presumption that a residential security cabinet (which is what 99% of all guns safes really are) can only hold guns is a big one.

    1. “The presumption that a residential security cabinet (which is what 99% of all guns safes really are) can only hold guns is a big one.”

      But do people buy a gun safe if they don’t have a gun? Whether they keep a gun (or anything else) in it?

    2. A funny thing about gun safes (as opposed to safes not marketed as “gun safes”), is that they tend to have certain aesthetic choices that distinguish them from other safes. Often including branding from well-known gun companies.

      Which is to say… in most cases, if you’re snooping in someone’s home and see a safe, you can reasonably guess if it’s intended primarily to hold guns (though it may hold other things as well) or primarily intended to hold other things (though it may hold guns as well). Especially when you’re talking about gun safes large enough to hold long arms.

      For that matter, while I’ve been in a number of households where gun safes are prominent and visible (this is often due to their large size, and that many people who have more then one or two guns want people to know they have a lot of guns) I have never been in a house where I accidentally stumbled upon a safe that had documents or non-gun valuables as their primary purpose.

      All of which is to say… it wouldn’t surprise me if the officers peaked through a window and saw a giant safe with “Winchester” branded across it. Thinking “that’s got guns in it” isn’t an unreasonable presumption.

      All that said, I’m vaguely of the opinion that felons should have their gun-rights restored. I heartily disagree with courts who see such restrictions on felons as not “punishment”, and thus permissible.

  11. On the 7th Circuit LaPorta case, it looks like LaPorta’s attorney made a fatal mistake by not arguing that LaPorta was subject to a state-created danger triggered a heightened duty to protect.

    Under LaPorta’s view of the fact’s, Chicago’s policies created an atmosphere of impunity by which officers knew they could get away with murder and would mot be subject to discipline or prosecution. LaPorta needed to have argued that this policy resulted in a heightened danger that fit the framework of Deshaney.

    This claim would probably still have been somewhat of a long shot, but not a complete DOA. After all, in Gibson, the 7th Circuit had reversed a summary judgment for the defense in a case where a mentally ill police officer was taken off duty but his gun was taken away. And while the 7th Circuit took pains to distinguish Gibson, if LaPorta’s attorneys had pled DeShaney special-danger liability, they would have had a greater than zero chance of being able to prove it, which is what not pleading it got them.

  12. I don’t normally comment on the cases IJ is taking up at the bottom, but will make an exception here. The IJ want to make some arguments that would still benefit its client but stop short of rhe complete win of treating multiple aggregated offense as a single one for Excessive Fines Clause purposes.

    Iwould humbly suggest arguing that if government wants to treat each day’s violation as a separate offense, then:

    1. There has to be evidence covering each distinct day. Here there clearly wasn’t. The Citu’s came in one day and saw a violation, it came in another day a year later and found there wasn’t. If this is the case, then the City has no evidence at all about anything that happened in between. Its claim that there was a continuing violation each and every in between is based on pure speculation, not evidence. The City, not the parker, has a separate the burden of proving each and every claimed offense occurred. If it wants to make each day a separate offense for an ephemeral violation (cars normally change their parking position at least daily),it needs to send out an inspection team each day and collect evidence seperately each day.

    2. The City has to give a separate notice and opportunity to be heard for each separate offense. If it doesn’t provide a timely notice, it waives its claim.

    3. The City’s bold claim that there was a continuing violation every day with evidence whatsoever means there was a complete lack lack even of probable cause. If the City is claiming hundreds of violations occurred but has evidence for only one, may I suggest frivolous litigation sanctions for the rest? Also, if her car or other property was seized, there could be a 4th Amendment claim for seizure absent probable cause.

    Since there appears to have been evidence supporting only a single violation, it may not be in the client’s interest to make claims, like the Excessive Fines clause claim, that dependent on the existence of multiple claims. It might be in the client’s best interest instead to aggressively pursue the absence of evidence and/or absence of notice angle or similar and get all the other claims dropped that way, and then never reach all the interesting constitutional issues. Perhaps it might be best to wait for another client for that

    1. In particular, the Excessive Fines claim would appear to require your client to concede the existence of violations over multiple days on order to have standing to raise such a claim. In the complete absence of evidence of the existence of more than a single day’s violation, that’s a concession that would appear not to be in your client’s interest to make.

      Better to make more run-of-the-mill claims against the City for pursuing completely frivolous charges that any reasonable person would know it had no evidence to support. Your client owed at most $250. I wouldn’t bother arguing that that’s obsessive. I don’t think the Excessive Fines clause has any relevance to your case. Rather, I’d concede the single charge and its $250 fine, and then counterclaim for the completely bogus additional charges and the totally frivolous litigation and illegal collection attempts the City has made over them, together with the complete lack of due process your client has received regarding them.

    2. ” (cars normally change their parking position at least daily)”

      Perhaps they do in Pixar movies, but absent self-animated cars, the typical reality is that an object at rest tends to remain at rest, as Mr. Newton observed and codified as natural law. Stephen King wrote a novel where they didn’t, but there’s more than one Stephen King novel where supernatural events happen, and they’re ALL fictional accounts. Things stay where you put them.

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