Short Circuit: A Roundup of Recent Federal Court Decisions

Abusive border patrol agents, administrative closure, and a profitable jail.

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

New on the Short Circuit podcast: Special guest David Lat joins the panel to talk website compliance with the ADA and a smartphone app's liability for a high-speed crash.

  • Do police officers have a right to due process or a hearing before a prosecutor decides to stop calling them as witnesses in light of multiple alleged false statements? First Circuit: We're pretty sure the prosecutor just gets to make that call.
  • For decades, immigration judges and the Board of Immigration Appeals have used "administrative closure" to clean up their dockets. In 2018, then-Attorney General Jeff Sessions puts an end to the practice, concluding that there is no statutory authority for it. Third Circuit: Yes there is; IJs and the BIA can take "any action . . . appropriate and necessary for the disposition of [their] cases." Dissent: "[T]he authority to 'dispose' of immigration cases does not include permission to delay a decision forever."
  • Retired Air Force lieutenant colonel, who is white, goes to the Quantico Marine Corps Exchange to buy some shoes. When approached by an African-American clerk who uses the honorific "sir" to address him—which she would have known he doesn't like if only she'd read his web page (which your editor will allow you to Google on your own)—he asks a series of increasingly bizarre rhetorical questions, one of which features a racial slur. He's arrested for violating Virginia's law against "abusive language." Fourth Circuit: The "fighting words" exception to the First Amendment is really, really, really narrow, and video shows no one was likely to be provoked to imminent violence.
  • In 2019, the Texas Legislature enacted a law banning so-called pop-up early voting sites. The Texas Democratic Party and others sue the Texas Secretary of State, seeking to invalidate the law. Fifth Circuit: The Secretary of State has nothing to do with administering or enforcing the challenged statute, so the case should be dismissed.
  • Apparently displeased with society's revisiting the legacy of Christopher Columbus, man vandalizes a statue of a Tiguan woman on Yselta Del Sur Pueblo land, near El Paso, Tex. Federal courts have jurisdiction over some crimes committed on tribal lands with an Indian victim: non-Indians are subject to federal prosecution, while Indians are not. Who bears the burden of proving Indian status in a prosecution? Fifth Circuit: It's an affirmative defense, so the defendant must raise the issue, and only then must the gov't prove it. Conviction affirmed. (Circuit split alert: This aligns with the Ninth Circuit but splits from the Tenth.)
  • To increase revenue for the county, Cuyahoga County, Ohio official develops a plan to house detainees and prisoners from nearby communities in exchange for big bucks, leading to severe overcrowding and severe understaffing among nurses. As a result, pretrial detainee—who was identified as a suicide risk and told a prison nurse he was suicidal—receives no treatment and commits suicide. His estate sues. Sixth Circuit: And it has alleged a valid excessive force claim. The case moves forward. (Other claims that defendants didn't appeal will as well.)
  • Under Ohio law, properties that are delinquent on their taxes can be seized and sold to satisfy the debt, with any surplus being returned to the owner. Or, they can be seized and given to a land bank, in which case the owner gets nothing. Plaintiff: Which is a Fifth Amendment taking of my equity in the house. Sixth Circuit: It certainly sounds like it. Case un-dismissed.
  • Is an officer "criminally reckless" when he kills an innocent motorist while speeding through a residential neighborhood at speeds nearing 100 mph en route to a routine traffic stop that nobody had asked him to help with in the first place? The Seventh Circuit thinks he just might have been.
  • In 2019, Juarez Rogers was arrested for a murder in Indiana. Indiana police soon get a tip that his son, Cortez Juarez Rogers, was galivanting about trying to intimidate witnesses. Hobart, Ind. police accidentally get an arrest warrant against Cortez Javan Rogers, an Illinois resident who had nothing to do with any of the other Rogerses' misdeeds. Chicago police arrest Cortez Javan Rogers on the Indiana warrant, and he's held in jail for about a day until the mistake is detected. Seeking recompense for the snafu, Cortez Javan Rogers then sues the Hobart Police Department (and others) in Illinois federal court. Seventh Circuit: No personal jurisdiction. (But in a seeming random act of kindness, the panel issued a one-sentence order affirming the district court's dismissal in March, giving the plaintiff time to re-file within the relevant limitations period in the Northern District of Indiana.)
  • High school football players attend a football camp at Northwest Missouri State University. At the same time, the school is also hosting a camp for high-school cheerleaders. One of the cheerleading coaches believes she sees some of the football players looking into her window from theirs while she is changing. At the direction of campus police, the football coach detains seven of the players, and police grill them for hours. Nobody admits anything, and no charges are filed. The players sue for violation of their Fourth Amendment rights. Eighth Circuit: Qualified immunity; all of this was completely reasonable. Dissent: There was no reason to believe it was these seven players, which makes the seizure unreasonable.
  • Mexican family travelling to Arizona for a bit of shopping is intercepted by border patrol agents, who misuse field drug tests and falsely conclude that windshield wiper fluid in the family car was actually "liquid drugs." Dad spends 40 days behind bars after agents coerce him into a false confession by threatening to scatter his wife and teenage children to prisons across the U.S. Ninth Circuit: Although the agents "may have been negligent and even abusive," they were not "completely lacking legitimate policy rationale" because drugs are bad. So, you can't sue. Dissent: The agents failed to follow the simple instructions in the field tests. They don't have the discretion to do that.
  • A man robbing a Eufaula, Okla. bank opens fire, takes a customer hostage, and forces her to drive his getaway car. Police run their car off the road; the hostage exits with her hands up and runs into a field in an (unsuccessful) effort to escape her captor. A shootout ensues. The robber uses his hostage as a human shield, and police shoot her at least ten times. She survives and sues. Tenth Circuit: Her claim that one of the cops intentionally shot her as she exited the car with her hands up should not have been dismissed. Just because the cop said he didn't see her as he fired doesn't mean that a jury will agree, and there's a good amount of evidence contradicting his account.
  • Mayes County, Okla. deputy sheriff responding to a call about a possibly suicidal man fires 13 rounds within seconds of arriving, killing the man. The deputy claims that he shot in response to the man firing at him; his widow claims the deputy's shots were unprovoked. A jury rules in the deputy's favor. Can the county be held liable under a state-law negligence claim? Tenth Circuit: No. By ruling for the deputy, the jury must've found that the man shot first, and such a determination means the county can't be held liable for negligence.
  • Eleventh Circuit: Georgia sheriff's deputy alleged to have fondled, kissed, and peeped on a female inmate is entitled to 11th Amendment sovereign immunity under binding circuit precedent. Concurrence(s): That precedent "precludes on the basis of state immunity all those incarcerated in Georgia county jails from vindicating their rights in federal courts." It's wrong and we should change it.
  • In 1994 (pre-Lawrence v. Texas), an 18-year-old male is convicted of having consensual sex with a 16-year-old male under Idaho's "Crimes Against Nature" statute. He would not have committed that crime had the 16-year-old been a female. He serves seven years in prison and years later moves to Montana, where because of his conviction must register as a sex offender. Montana federal district court: That is unconstitutional in all the ways, including under rational basis scrutiny on his equal protection claim.

Friends, 44 states allow doctors to prescribe and dispense medications directly to patients. Doctor dispensing is safe, it's commonplace, and it saves patients time, expense, and hassle. But until this week it was almost totally illegal in Montana—a testament to the power of the pharmacy lobby, which wanted all prescriptions to go through them. Last year, IJ challenged the restrictions under Montana's state constitution, and we're pleased to say that this week a bill making Montana the 45th state to allow doctor dispensing was signed into law. The bill passed unanimously—and also with the support of the state pharmacy association, which acknowledged that "the root of our previous opposition to similar bills was protectionism," and declared that "taking care of patients . . . means being amenable to change and looking ahead and not being so protective of our profession." Holy cow, that never happens. Good on ya, Montana Pharmacy Association. Click here to read more.

NEXT: Another "Racial Ridicule" Arrest in Connecticut, This One for an Online Insult

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  1. There’s more to the 1st Circuit cop case —
    “In July 2020, Millinocket agreed to a $90,000 settlement with Gamble [aka Roe]. As part of the settlement, the town asked Lynch to rescind her Giglio impairment of Gamble, which she has not done.”
    See: https://bangordailynews.com/2021/04/14/mainefocus/a-prosecutor-ended-his-police-career-he-doesnt-understand-why-she-wont-hear-his-side/

    Millinocket is a factory town that lost its factory. Roughly halfway between Bangor and Canada, it is a mess with no jobs and lots of drugs. They wound up abolishing the police dept.

    1. The extra background is appreciated.

      I also note Lipez—who as a Mainer took special interest maybe—wrote a concurrence that is worth a look; it’s not very long either.

      1. Lipez addressed a real issue of due process and this is happening a lot in Maine — another interesting aspect: https://wgme.com/news/local/former-cop-sues-penobscot-county-da-claiming-shes-keeping-him-from-working-in-maine

        The state allowed him to keep his cop license, but he’s unemployable. And he’s not the only one this is happening to.

  2. Question: Have any cases in which “fighting words” were prosecuted ever resulted in actual fighting? Surely, if (1) these magic words by their utterance can cause men of normal temperament to lose complete control over their emotions and (2) such words are ubiquitous in society, then there have to exist at least a few instances.

    1. The word “nigger” is one such magic word, yet it appears in thousands of rap songs. If we are to believe the fighting words doctrine, wouldn’t we see a lot more fights? How do people maintain their composure when a Cadillac with spinning wheels rolls by blasting DMX?

      1. Was JohnnyAppleseed “quoting an important source,” Professor Volokh . . . or are you ready to acknowledge that the Volokh Conspiracy just doesn’t mind publishing vile racial slurs — roughly weekly, this year — at this White, male, conservative blog?

        Whether this blog is lathering or merely appeasing the right-wing bigots it attracts is scantly important; either circumstance is shabby enough to support excoriation.

        1. “or are you ready to acknowledge that the Volokh Conspiracy just doesn’t mind publishing vile racial slurs”

          And shouldn’t mind, as has been explained many times. Get over it.

          1. A White, male blog that regularly publishes vile racial slurs while banning mean words about conservatives (sl_ck-j_w, c_p succ_or) is just the type of ‘often libertarian free speech champion’ for disaffected right-wingers.

            1. The difference between “use” and “mention” has been explained to you many times.

              1. How does that improve the publication of JohnnyAppleseed’s bigoted comment . . . or justify the viewpoint-driven censorship at a blog that claims to champion free expression but upon examination is revealed to be just partisan polemics and vivid hypocrisy?

                Carry on, clingers . . . so far as your betters permit.

      2. considering the violence in inner cities it apparently does lead to a lot of fights

      3. There are certainly a lot of fights where that word is used in close proximity to the actual fight, so it seems like a pretty poor example if you’re trying to establish the theory fighting words never lead to fights.

  3. “T.S.H.; M.J., Next friend of H.R.J., a minor,
    Plaintiffs – Appellees,v.Clarence Green; Anthony Williams,
    Defendants – Appellants.”

    This was the appellate court’s heading of the above-referenced “football camp” case. I’m puzzled by the “Next friend of” language. Something I have not seen in a case before. I’m guessing that it has something to do with the fact that HRJ is a minor. But what does it mean? Anyone have specialized knowledge about this????

    1. Your guess is correct. Definition linked below. I don’t know that it’s “specialized” that much since it comes up on a fairly regular basis in lawsuits.

      https://www.law.cornell.edu/wex/next_friend

      1. If minor is defendant, the term is “guardian ad litem.” Remember it from PR a while ago.

        1. A caveat: at least in Maine, a “guardian ad litem” can also be something else — when child protective is trying to take a child away from the parent(s), the court must appoint a “guardian ad litem” to be the advocate for the child.

          See: https://www.courts.maine.gov/courts/family/gal-pc.html

          1. Apparently Florida has them too: https://www.youtube.com/watch?v=ZG4wbW8xuaI

            30-35 years ago, I believe they were all volunteers in Maine as well.

      2. hard,
        Thanks. I’ve done about 2,000-3,000 cases in Dependency Court. It’s something I’ve never seen before, so I doubt it’s wording that is common in California courts. (Or, at least, common in LA County courts.). We do see “GAL” (Guardian ad Litem) all the time. But this was new for me.

        1. No question you are the family law expert, not me. I don’t claim to be a torts expert either, but even I’ve seen NF enough just casually in torts cases with minor plaintiffs or the above sort of education/education-adjacent cases to know it’s a relatively common thing. NF is also a big issue in habeas, e.g., the Gitmo cases, but that sort of stuff is way over my pay grade.

          Maybe the terminology in CA is different, but the same concept does seem to exist in civil procedure code section 372. It’s possible “next friend” is more of federal rules terminology because of FRCP 17.

          As seen just from Section 372, GAL is a closely related concept, but AFAIK it comes up mostly in family law (your area) and probate law cases where the minor either has no guardian or has a distinct interest from the guardian(s). GAL is also appointed pursuant to state law criteria, so that’s something of a significant difference from where an ordinary parent/relative is acting as NF.

    2. Cheerleader coach believes that high school boys are looking at her, and not the high school girls?

      Further, as she can observe from her window the goings on within an adjacent dorm room, she should know that she too has no reasonable expectation of privacy, just as she is not averting her gaze of the minors in the next room.
      And, oops, an adult peering into the room of minors? She was lucky that none of the boys stated a reverse claim of a peeping Tammy while under police interrogation.

      1. Sad fact is that cops would have ignored that.

        It’s part of why female teacher rape of male students doesn’t come out until the teacher is pregnant and there is DNA evidence…

  4. In the sex offender case, the court found that Montana accidentally waived 11A immunity for claims that would otherwise be barred under Pennhurst. That seems like sort of a basic mistake by the Montana AG. Granted, the claims aren’t for damages and maybe the finding won’t hold up on a later appeal, but still. I wonder if the responsible party or parties at the AG’s office are getting some heat for that mistake.

    1. I have a more basic question than that. The guy was convicted for conduct the Supreme Court has since told us is constitutionally protected. He strikes me as long overdue for a pardon from the governor. Even Idaho can’t be that homophobic.

      1. That’s an excellent question. From a quick glance at the relevant ID rules, it seems like he was eligible to request a pardon starting in roughly 2019. I don’t see any indication that he did though. Why not is something you’d have to ask him about.

        I do note that, in addition to the MT registration challenge, he is directly challenging the constitutionality of the underlying ID statute. So maybe he just decided to dispense with a pardon request in favor of the lawsuit, which I think has fairly decent odds of succeeding. If so, that seems like a sensible decision.

        He might also have thought his chances of a pardon were slim anyway. That seems to be correct. While statistics from earlier years suggest the grant rates are fairly decent, those are from ID’s Pardon Board, which AFAICT doesn’t handle sex offenses like this. The governor handles those, and it seems like ID governors historically don’t grant many pardons. Just as a general matter, a pardon’s discretionary and unreviewable, with not much potential for political upside and a non-zero chance of downside, so the path of least resistance is usually not to grant. Without speculating about the Idaho’s populace’s current sentiments, I can see why a guy in his position wouldn’t be optimistic about his odds for a pardon.

      2. Ummmm — there’s three issues here:
        1: The gay sex.
        2: Statutory rape.
        3: The differing ages of consent M/F.

        The _Lawrence_ decision only addressed the first issue.
        Age of consent laws are still valid, and absent a state ERA, I don’t know what grounds he’d have to challenge the differing ages of consent.

        1. I hear you on that, but AFAIK the underlying conviction was only for the ID “crimes against nature” statute, which doesn’t include considerations of 2 or 3, just 1.

        2. I’m not sure, based on the information given, if it was statutory rape. I just looked up the Idaho statute. It’s statutory rape if:

          a child who is under the age of 16 and a defendant who is 18 years of age or older, or
          a child who is age 16 or 17 and a defendant who is three or more years older than the child.

          It seems to me that if a prosecutor can charge statutory rape they normally do; the fact that he wasn’t convicted of it makes me think it probably wasn’t the case.

          1. What’s the date on the statute?
            Could it have been rewritten from an earlier one?

            1. It could have been, but given that recent trends are in the opposite direction I doubt it. However, you have the same access to online research that I do.

              1. The problem with the on-line statutes, as opposed to the dead tree version, is that they don’t include the revision dates….

  5. I like IJ and I like most of what they do. But I saw a huge downside of doctor dispensing when I lived in Malaysia. Doctors there over-prescribe because they dispense the medicine and make profits from their in-practice pharmacies. The more they over-prescribe, the higher their profits. I realized the separation between doctors and pharmacies in the US avoids this huge conflict of interest. Is there a way to avoid this conflict of interest in Montana, or anywhere else in the US where doctor dispensing is allowed?

    1. Your argument would be more credible if there were evidence of rampant over-prescribing in the other 44 states but not in the other 6. There is no such pattern. Doctors over-prescribe at about the same rates. Studies very credibly suggest that over-prescription has far more to do with pacifying patients and getting them out of the office quickly than with what are, by comparison, relatively minor prescription profits.

      1. Aren’t most of the MD prescribed drugs free manufacturer’s samples anyway? Yes it can lead to more expensive drugs being prescribed when cheaper ones would work, but I’ve never paid a MD for samples.

        1. That’s been the case most times my MD has prescribed and dispensed. He’s not running a mini-pharmacy, he just dispenses if he has samples on hand, especially if it’s something otherwise expensive.

          Basically the only time I’ve had an MD prescribe and dispense, and charge for it, was when it was something he had to administer, too.

  6. In the 6th Circuit takings case, the deficit was about $3000, but the costs were over $2000, leaving a net deficit of less than $1000.

    At some point, does the difference become so de minimus as to not be worth a federal case? The cost of litigating in federal court doubtless far exceeds the amount in controversy.

    The answer is probably no, even the most de minimus violations get civil rights claims if the plaintiff can find a lawyer willing to take the risk. But should it be? The amount in controversy here is tiny compared to the legal fees that are involved. This case will doubtless return to the 6th Circuit following its remand to the District Court. Why should states have to pay hundreds of thousands of dollars in legal fees over disputes over timy sums?

    At some point who is benefitting from all this litigation? The plaintiff or the lawyers?

    We hear of plaintiffs who get paid by lawyers to file cases so the lawyers can get a chance at the legal fees, and settlements that don’t really benefit the plaintiffs. If the plaintiff has been paid all he would have gotten in court, why shouldn’t that extinguish his case? If the plaintiff ends ip getting virtually nothing, why should the law make if worth the lawyer’s while?

    1. Why shouldn’t the state just not try to steal the $1000?

    2. Simple solution. Give the man his money from the beginning and you won’t incur any litigation costs.

  7. At some point, does the difference become so de minimus as to not be worth a federal case? The cost of litigating in federal court doubtless far exceeds the amount in controversy.

    The answer is probably no, even the most de minimus violations get civil rights claims if the plaintiff can find a lawyer willing to take the risk. But should it be? The amount in controversy here is tiny compared to the legal fees that are involved. This case will doubtless return to the 6th Circuit following its remand to the District Court. Why should states have to pay hundreds of thousands of dollars in legal fees over disputes over timy sums?

    Who says the states have to pay that? They could just cough up the three grand to begin with.

    Anyway, to some degreede minimus is in the eye of the beholder. A tiny sum to one person is a lot to someone else, including probably someone whose property just got foreclosed on for taxes.

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