Short Circuit: A Roundup of Recent Federal Court Decisions

Good government, better government, and corporal punishment.

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

Friends, the Supreme Court has long held that cities are not entitled to qualified immunity. But last year, when the Sixth Circuit granted qualified immunity to a Euclid, Ohio police officer for a fatal shooting, it also dismissed the claims against the city—because the shooting, though it may have violated the Constitution, hadn't violated clearly established law. This left the victim's family with no one to sue. Click here to read an IJ amicus brief urging the Supreme Court to grant cert in the case and put a stop to the disturbing trend of lower courts smuggling qualified immunity into municipal liability jurisprudence. And click here to read about Euclid's "highly inappropriate" police use-of-force training that trivializes police brutality.

• After being released from federal prison, Washington, D.C. man restarts his life and goes three years with nary a blemish on his record. Then he's busted for possessing less than two ounces of marijuana and is ordered to spend nine days in jail, to be served on weekends. Yikes! After his third weekend, they won't let him out! He was supposed to serve an additional two years in district jail following his release from federal prison, but had been led to believe his sentence had been reduced. D.C. Circuit: Which might violate procedural due process, if the District often screws up like this.
• A prisoner files his fourth successive habeas petition on actual innocence, and the Third Circuit holds, "[a]gainst all odds," that he might even win. (The feds are trying to keep him in prison for "using" a gun in a drug crime. The "use" was trading drugs and the gun.)
• Baltimore woman is murdered while her four children slept upstairs, and her boyfriend is convicted on the basis of a positive gunshot residue test. A slew of exonerating evidence bubbles up: Another man confesses to the murder, one of her children comes forward to say that he saw another man force his mother into the basement the night of the murder, and doubts arise about the gunshot residue test. The state drops the charges, and the man walks free after 19 years in prison. He sues, wins a $15 mil judgment against a Baltimore detective for withholding and fabricating evidence. Fourth Circuit: Just so. Also, the man's claim against the city should not have been dismissed.
• On the last night before the end of a trial, the defendant takes the stand at 7:13 PM. At 8:03, the judge recessed for the night, ordering the defendant not to speak to his attorney overnight. Fifth Circuit: We understand the risk of improper coaching, but this violated the Sixth Amendment right to counsel. New trial.
• Shreveport, La. police seek to pull over a car being driven without brake and license plate lights. The driver continues for two minutes—not speeding—until he pulls into a driveway. Police ask the man to exit the car, he does, and they conduct a pat-down and discover a pocketknife. He verbally expresses his unhappiness with the situation but allegedly doesn't physically struggle. Instead of telling him he's under arrest and giving him a chance to allow himself to be handcuffed, they force him to the ground and repeatedly punch and kick him. District court: Sure seems to be excessive force. Fifth Circuit (over a dissent): Qualified immunity.
• The Alliance for Good Government, a New Orleans-based nonprofit, sues the Coalition for Better Government, another New Orleans-based nonprofit, for trademark infringement under the Lanham Act. After multiple trips to the Fifth Circuit, the Alliance wins not only their claim, but attorneys' fees. Fifth Circuit: Which were perfectly reasonable. Dissent: Uh, guys, the Lanham Act only applies to commercial speech, and all these groups do is endorse political candidates (not to mention the First Amendment problems you're creating).
• Odawa Indians have inhabited for centuries what is now considered northern Michigan. The Sixth Circuit brings us the history of the Band's 19th-century negotiations and treaties with the federal government, concluding that the Treaty of 1855 did not create a reservation for the Band, but, rather, provided allotments of land for Band members to obtain permanent homes in Michigan.
• Sixth Circuit: "While the plaintiffs cite an ample number of cases that support the general notion that the Due Process Clause protects the right to bring up one's children, they point to no case law from either the Supreme Court or this circuit that indicates there is a clearly established right to use corporal punishment that leaves marks." Thus, qualified immunity for the social workers who investigated when a 14-year-old showed up to school with marks on his arms from being beaten with a belt.
• After a "tiff" in which an Indiana man's gov't employer "might have … called him a dumb motherf***er" and he "might have" called her vulgar names as well—leading to his demotion, reduction in salary, and loss of a government car—man goes to the feds to report his boss for illegally using gov't resources for political campaigns and demanding kickbacks from employees. An FBI agent instructs him to search the boss's office for incriminating documents, which leads to charges against both the boss and her administrative assistant. The boss takes a plea bargain, and the administrative assistant is convicted at trial. Seventh Circuit: That office was definitely a private space, and you guys definitely didn't get a warrant. Try again without the illegally obtained evidence.
• Allegation: Unilever sells men's antiperspirants and women's antiperspirants at different prices. Eighth Circuit: So what? Dicta: Just buy the men's brand.
• Allegation: Nevada guard (perhaps at the behest of higher ups) snoops on phone calls between prisoner and lawyer representing him in constitutional litigation against other prison guards. Does the Fourth Amendment protect against such snooping? Ninth Circuit: There's no prior case that says so. Qualified immunity. Partial dissent: We should have answered that question here.
• In the first of many trials against Monsanto alleging that their product Roundup caused non-Hodgkin's lymphoma, a jury awarded Edwin Hardeman $5 mil in compensatory damages and $75 mil in punitive damages. District Court: Wow, that's a lot, how about $20 mil? Hardeman: I would really like $75 mil. Monsanto: Federal law preempts the lawsuit, the district court made a series of errors in allowing in evidence, and $75 mil in punitive damages is unconstitutional. Ninth Circuit: No, No, and Yes. Judgment stands and $20 mil is really the outer limit here for what would be constitutional. Dissent: The judgment should stand, but $20 mil is unconstitutional.
• A Pryor Mountain wild horse walks into a bar. The bartender asks, "Why the long face?" The horse says, "That's just the shape of my skull. I actually feel fantastic because the Ninth Circuit revived a petition to classify me as a member of a federal protected distinct population." The horse then launched into this whole thing about the Fish and Wildlife Service and the Administrative Procedure Act, much to the bartender's chagrin.
• And in en banc news, the Ninth Circuit will not reconsider its decision that a bed-and-breakfast owner has a Bivens cause of action against a border patrol agent under the First and Fourth Amendments. Some judges dissent, including Judge Owens, who writes: "Congress didn't care what I thought back in 1997 when I was 25 years old, and it probably cares less now as I approach 50" while citing his student note, published (along with the first Harry Potter book) in that year.

When Elijah Durham lost his job as a chef during the pandemic, he and his wife Ashley decided to become their own bosses, opening up their SOL Burger food truck in Tarpon Springs, Florida. But soon after, city officials banned food trucks from the city except for a small strip of land on the outskirts of town. And the ban has another exception: Restaurants can operate food trucks on their own property anywhere in the city. City officials have repeatedly admitted the ban exists to protect the restaurants from competition, and this week, Elijah and Ashley teamed up with IJ to file a lawsuit under the Florida Constitution, which does not permit such naked protectionism. Click here to read more.

Comments

[fafalone]

re:Tucker v Shreveport, whenever there's a qualified immunity decision so beyond absurd it makes typical QI decisions look reasonable, you can bet it's the 5th Circuit.

SCOTUS has been trying as hard as they can to ignore the disaster QI has become, but still stepped in to smack the 5th Circuit for their ridiculous Taylor v Riojas QI grant. This really seems like straight up thumbing their noses at SCOTUS by distinguishing this case from any number of beating people for no damn reason cases.

[jb]

Yeah, honestly WTF?

From the decision:

"Considering the record in this manner, we find the district court erred in
concluding that the conduct of Officers McIntire and Cisco—in taking Tucker
to the ground—was objectively unreasonable in light of pertinent clearly
established law in November 2016. For the most part, the cases cited by the
district court and Tucker, including some not decided until after the November
2016 incident here—simply acknowledge uncontroversial general principles.
See, e.g., Hank v. Rogers, 853 F.3d 738, 747 (5th Cir. 2017) (as of February 26,
2013, “clearly established law demonstrated that an officer violates the Fourth
Amendment if he abruptly resorts to overwhelming physical force rather than
continuing verbal negotiations with an individual who poses no immediate
threat or flight risk, who engages in, at most, passive resistance, and [was]
stopped for a minor traffic violation”). Moreover, none of these pronouncements
“squarely govern” the particular facts at issue here such that, in November 2016, no reasonable officer would have thought that the Defendant Officers’
takedown of Tucker was legally permissible."

So, even though it was "clearly established" that an officer violates the fourth amendment by abruptly resorting to violence, that general principle doesn't apply for...reasons? (And then goes on to list a bunch of cases where the plaintiff was much less cooperative than this one, but where they did find that the use of force was unreasonable nonetheless.)

[Davedave]

The decision makes a warped kind of sense. I can't keep up with the developments, and I'm following this strand of law. It's unreasonable to expect a serving officer to be current on the law here. They have to know the law to be guilty. They don't know the law.

Obviously, if you lot just started prosecuting the bastards for committing crimes, it'd work. But as long as you give them not only a bunch of loopholes, but in particular a loophole that says if they're not sure they need a loophole, they're allowed to do [whatever], then there's no chance of a conviction.

[Michael P]

When did the rule for QI become "ignorance of the law is a perfect defense"?

[James Pollock]

Among the other things we ask police to do is to deal with actually dangerous, violent criminals and mentally ill people. Because they do these things, the courts don't want to limit them too much, because if the cops aren't dealing with those two categories, who will? Plus, there's an armed cop right there in the courtroom!

[LawTalkingGuy]

If I didn’t know better, I’d say the Fifth was making terrible QI decisions simply to force SCOTUS to do something about it by highlighting the absurdity.

Although I still don’t think I’ve ever seen anything in QI world as absurd as Sims v Abbott, even though the plaintiff ultimately prevailed. A district judge and a dissenting circuit judge would have granted QI to a detective who obtained a warrant to force a teenager to masturbate in front of him so he could take pictures to compare erections to pictures from a teenage sexting case.

[bernard11]

If I didn’t know better, I’d say the Fifth was making terrible QI decisions simply to force SCOTUS to do something about it by highlighting the absurdity.

Yeah. Doubtful that that's the game Clement and Englehardt are playing.

[LawTalkingGuy]

Correct. Unfortunately I do know better.

[John F. Carr]

The fourth habeas procedural victory is less impressive since I figured out it potentially reduces life+5 to life.

[Noscitur a sociis]

(The feds are trying to keep him in prison for "using" a gun in a drug crime. The "use" was trading drugs and the gun.)

They're also "trying to keep him in prison" for murdering someone during a drug crime. And it seems like they're going to succeed, since this case didn't call into question that conviction or the associated life sentence.

[John F. Carr]

He was acquitted of murder. Officially the life sentence is for drug dealing and conspiracy. Maybe he was sentenced for murder despite the acquittal, that sort of thing being typical as the sentencing guidelines were interpreted in the 1990s.

[Jerry B.]

"A Pryor Mountain wild horse walks into a bar. The bartender asks, "Why the long face?" The horse says, "That's just the shape of my skull. I actually feel fantastic because the Ninth Circuit revived a petition to classify me as a member of a federal protected distinct population." "

Horses are an invasive species in the Americas, having been introduced first by the Spanish conquerors in the 16th century.

[spoolin01]

Horses evolved here, apparently as did camels. The Spaniards were just ahead in the equity game.

[BrotherMovesOn]

"Judean Peoples' Front? F*ck off, we're the Peoples' Front of Judea! The only people we hate more than the Romans, is the Judean Peoples' Front."

[santamonica811]

Re the Roundup case: I vaguely remember being taught that 7 : 1 (punitive:actual damages) was the limit. But here, it seems that 3.8 : 1 is right at the edge.

This is an area of the law I have not followed at all...I do not do, and have not done, any real civil lit. Has this ratio trended downward over time? Or am I just not remembering correctly from my old law school days (late 80s/early 90s)? Is there a nationwide standard (even a rough standard? Or does this vary widely from state-to-state?

[John F. Carr]

The Supreme Court has been trying to push the ratio down since _BMW v. Gore_. The Supreme Court can not review every case. If you want to push it down, create a rule that the remedy for excessive punitive damages is to strike punitive damages entirely. The plaintiff will be encouraged to ask for an amount within legal limits.

[James Pollock]

What you do is you make each side submit a number and then the factfinder at trial picks one of the numbers. Or you set the limiting factor at revenue per year. So if you're suing your neighbor for emptying trash over the fence into your backyard for 2 years, you might say you can recover 10% of his income for those two years, but if it's Waste Management that's dumping trash over your fence for two years, you can recover 10% of their corporate revenue for those 2 years.

[bernard11]

It's not clear to me that a multiple of actual damages is the right way to limit punitive damages.

Shouldn't other factors be taken into account? Non-monetary damage, likelihood that lots of damge was done that wasn't litigated, degree of culpability, etc.

[MatthewSlyfield]

" likelihood that lots of damge was done that wasn’t litigated"

I can't agree with this being a factor in punitive damages. If it wasn't litigated, it either wasn't the plaintiff's damage or the plaintiff chose not to litigate it. Either way, no, damages not litigated should not be a factor in determining punitive damages.

[bernard11]

If it wasn’t litigated, it either wasn’t the plaintiff’s damage or the plaintiff chose not to litigate it.

By "not litigated" I mean people other than the actual plaintiff were damaged, but didn't bring suit. This can happen for a lot of reasons - the death of the potential plaintiff, ignorance of the situation, unavailability of an attorney, reluctance to spend years in litigation, etc.

You can disagree with any specific example, but my point is that punitive damages might take into account the full social damage done, and not just the damage in the case in front of the court.

[MatthewSlyfield]

"but my point is that punitive damages might take into account the full social damage done, and not just the damage in the case in front of the court."

Your point is bull shit. The courts absolutely should just be considering the damage in the case in front of them.

[James Pollock]

The point of punitive damages is to inflict enough cost on the defendant to make them change the way they were doing something.
so, for instance, if a car-manufacturer makes it's emission-controlls system look to see if the conditions resemble the way the government tests emissions-control systems, and locks down emissions if it thinks it's being tested, but otherwise doesn't control emissions, you want the punitive damages to be high enough to convince them that trying to cheat in this manner is too expensive to keep doing it. the actual damages done to an individual car-buyer just isn't going to have that effect.

[MaverickNH]

"Allegation: Unilever sells men's antiperspirants and women's antiperspirants at different prices. Eighth Circuit: So what? Dicta: Just buy the men's brand."

Irish Spring soap "Manly yes, but I like it too." ????

[Dr. Ed 2]

"As Schulte says in her brief, she prefers the scents in the Advanced Care line because she does not want to “smell like a man.”

One woman sues because she does not want to “smell like a man” while other women sue because they wish to have society affirm that they ARE men.

Does anyone not see how much of a house divided this has become?

[bernard11]

I do wish the Grand Global Council of Women would get its act together and start showing some consistency.

(JFTR. The 8th Circuit case, if it's as described in the OP, sounds ludicrous to me.)

[Squirrelloid]

So she's saying they're different products... why should they cost the same?

[Squirrelloid]

"That office was definitely a private space, and you guys definitely didn't get a warrant. Try again without the illegally obtained evidence."

Wait, a government office is a 'private space'. I'm sorry, that office is owned by the people - it's public property.

I mean, the government flagrantly violates property rights all the time with actual private property, and that's a problem. But the state shouldn't have to ask permission to examine stuff the state owns.

[James Pollock]

"Wait, a government office is a ‘private space’. I’m sorry, that office is owned by the people – it’s public property. "

That's... not how it works.