Short Circuit: A Roundup of Recent Federal Court Decisions

Ketamine experiments, latex clubs, and paid Russian propaganda.

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

Friends, the Supreme Court has long held that claims for damages against state and local judges are a hard no go under Section 1983 because absolute judicial immunity was well-settled and uniformly followed at common law in 1871 (when Section 1983 was passed). Buuuuuuut . . . that's not really true. And more importantly, who cares what the common law said if Section 1983 was meant to create a new remedy after common law causes of action proved wholly inadequate in the face of KKK terror? That's on the most recent episode of the Bound By Oath podcast. Click here for more.

  • Raped as a child and threatened with death by her brother's gang, woman flees to the U.S. and establishes a life before being apprehended by immigration officers. She's imprisoned for 10 months after failing to show that she is not a threat or flight risk. But wait! On appeal, a federal court says that that it is the gov't's burden to show she's dangerous or a flight risk. And on remand, she's granted bond—on the exact same evidence. First Circuit: Crazy how important the burden of proof is huh? Anyways, the Fifth Amendment requires the burden of proof to be on the gov't. Dissent: Ever heard of judicial restraint? This is a statutory case that the immigrant should win, but not on constitutional grounds.
  • Judge Selya does not hold back with this week's First Circuit Vocab Quiz: behoof, immurement, indicium, limned, pavane, hyperlipidemia, calumnizing, exigible, pellucid. Along the way, the court denies compassionate release to a 62-year-old man who has served about 30 years of a 660-year sentence for laundering $136 mil of Colombian drug cartel money.
  • Syracuse, N.Y. police did not "search" a defendant when they forced him to put his hands on the back of a car and stand spreadeagle, says the Second Circuit (sitting en banc, over several dissents), because a search doesn't occur until an officer "physically intrud[es]" on a defendant's protected space. Also, the officers weren't unreasonable in frisking the defendant because he looked at officers' unmarked car for "a few seconds," hitched up his pants as he got into a car, squirmed as if concealing something after being pulled over, and then stood with his pelvis close to the car after being ordered to spreadeagle. Plus, it was a high-crime area.
  • After plaintiff leased the site of the former gun range and store with plans to get it up and running again, Robinson Township, Penn. officials changed the zoning to outlaw certain aspects of his business model (while permitting them elsewhere in town). Third Circuit: Which might violate the Second Amendment. Case un-dismissed, for the second time.
  • After the Biden Administration rescinded the third-country asylum rule (sending third-country nationals to Mexico or Canada while they make their asylum claims), Texas sued, arguing the recission violated the APA; the administration did not consider the harms that would come to Texas, like having to process more driver's license applications. (Sound familiar?) District Court: Indeed, the APA was likely violated so the program must be restarted nationwide. Feds: Stay pending appeal? Fifth Circuit: Nope. But we will expedite oral argument to consider the merits.
  • Fifth Circuit (en banc, over dissents): The district court erred in characterizing Texas' ban on a particular method of dilation and evacuation abortions as a total ban on dilation and evacuation abortions—and also by permanently enjoining the ban. In fact, the law leaves safe alternatives available. Reversed and rendered.
  • Anonymous caller reports shouting and breaking glass in an apartment, but when Southfield, Mich. police arrive, all is quiet. A female resident opens the door a crack and tells them nothing is wrong. They force their way in, and tackle and arrest a male resident. Sixth Circuit: It's clearly established that an anonymous phone call, without more, is not enough of an exigent circumstance to justify a warrantless entry.
  • Woman calls 911 seeking medical help for her husband, who's having a diabetic emergency. Milford, Ill.'s only full-time police officer beats the paramedics there, forces the husband onto his stomach, wrenches his arm behind his back, and uses pressure points behind the husband's ear to force submission. The man asphyxiates on his own vomit. Seventh Circuit: No qualified immunity.
  • When you're arrested by the City of Chicago, the jail confiscates your property. If you don't claim it within 30 days, the city sells it and keeps the proceeds. Which, the Seventh Circuit holds, stinks for you but does not violate the Constitution.
  • Thanks to agreement with FedEx, Kansas City, Mo. detective and his K-9 are at sorting center interdicting when the detective sees a box with its seams glued shut, which, according to the detective, "100% of the time" indicates a package contains illegal drugs. (And indeed the box contains about 25 pounds of marijuana.) Defendant: Which violates the Fourth Amendment. Eighth Circuit: Nope. (Though the sweep of the defendant's apartment did.)
  • Allegation: Hennepin County, Minn. paramedics injected an unresisting woman with ketamine as part of a research study without her consent (and lied in their reports, saying she was combative). The drug, which was known to have high risks of serious complications, causes her to go into acute respiratory distress. Can she sue the paramedics, the county, or the doctors conducting the study? Eighth Circuit: No.
  • Can the EPA moot a case by unilaterally withdrawing the order being challenged after a dozen years of litigation? The Ninth Circuit says of course not. (But rest easy, federal regulators: The panel also holds that the property owners, whose dozen years of litigation already include a unanimous win at the Supreme Court, are still hosed on the merits.)
  • Last year, the Supreme Court ruled that there is no possible remedy in an American court for a fatal cross-border shooting, no matter how unreasonable, of a Mexican teen by a U.S. border agent. What about when an agent fatally shoots someone climbing the border fence (entirely on U.S. soil)? Ninth Circuit: "This case illustrates the law's inability to remedy certain wrongs."
  • Herring Networks, owner of the pro-Trump network OAN, sues MSNBC host Rachel Maddow for defamation for calling their news coverage "paid Russian propaganda," just because one of their on-air hosts is paid by the Russian government to write articles for the state-owned Sputnik News, which the U.S. intelligence community has concluded published propaganda intended to influence the 2016 election. Ninth Circuit: SLAPPed!
  • Another week, another "Ag-gag" law. This time, the Tenth Circuit strikes down a Kansas law that prohibits animal rights groups from using "deception" in order to get undercover agents hired as employees at agricultural facilities. Dissent: Lying to facilitate trespassing isn't protected by the First Amendment.
  • Allegation: DEA agents conspired with an obviously unreliable informant to raid a legit Colorado medical marijuana farm, arrest man on charges that are soon dropped. Tenth Circuit: Illegal arrest and malicious prosecution are not claims that can be brought against federal officers. And even if they were, these officers would be entitled to qualified immunity (as they are for the plaintiffs' search-and-seizure claims).
  • Allegation: Lakewood, Colo. officers call man (that they suspect of shooting a gun at an escort earlier in the evening) and order him to exit his apartment. He does, clearly unarmed. The officers then inexplicably hide and fail to identify themselves. (This repeats several times.) They order him out again, but this time it's evident to the officers that he no longer believes they are officers, and he comes out gun in hand. An officer shoots him without warning. Tenth Circuit (over a dissent): No qualified immunity.
  • Hearing-impaired man and lawyer sue two Florida gas stations, arguing that the failure to include closed-captioning on gas-pump TV screens violates the Americans with Disabilities Act. Uh oh! District court notices some "red flag[s]," does a little digging, and discovers they've filed scores of these cases, settle them for money with no changes to the captioning, and split the fees. Eleventh Circuit: The district court's sanctions against them were reasonable.
  • The Eleventh Circuit, sitting en banc, overrules its precedent requiring the suppression of illegally obtained evidence unless there's a "reasonable probability" it would have been discovered anyway by lawful means. Instead, the gov't must now show by a "preponderance of the evidence" the evidence would have been discovered. The upshot: a postal worker caught smuggling cocaine will get another chance to argue the evidence should be suppressed.
  • Federal law makes it a crime for an alien who has been deported to be present in the United States. Man charged with this crime moves to dismiss indictment, arguing that the law was enacted in 1929 (and reenacted in 1952) "with a discriminatory purpose and … has a disparate impact on Latinx persons." D. Nevada: The government had to show the law would have been enacted without discriminatory intent, which it failed to do. Indictment dismissed.
  • And in en banc news, the Ninth Circuit will not reconsider its decision to deny habeas relief in a case in which they really, really wanted to grant habeas relief. Judge VanDyke dissents from denial, and wants everyone to know how fed up he is with the Ninth Circuit's lax habeas practices.
  • And in more en banc news, the Fifth Circuit will not consider this stunningly insightful amicus brief requesting en banc review of a grant of qualified immunity to officers who left a suicidal detainee in a cell with a 30-inch phone cord and then stood by idly as he strangled himself to death. Per the panel, neither common sense nor a prior case (involving an inmate who strangled himself to death with a sheet) put the officers on notice such a thing might be unconstitutional.

Last November, the DEA seized nearly $30k from IJ client Kermit Warren, who was flying with the cash because he'd intended to buy a tow truck for his scrapping business. It is perfectly legal to fly domestically with any amount of cash, and even though the feds found no evidence connecting Kermit or the money to criminal wrongdoing, in April the gov't filed a complaint to permanently forfeit the money. This week, Kermit—a hardworking grandfather, lifelong resident of New Orleans, and head deacon at a historic Baptist church—teamed up with IJ to get the money back and to put a stop to the DEA's policy of seizing money and forcing people to prove their innocence to get it back. Click here to learn more.

NEXT: Would-Be Peaceful Demonstrators Lack Standing to Challenge Florida's Anti-Riot Act

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  1. The Second Circuit case is terrible. The Second Circuit virtually never goes en banc — one is more likely to get a cert. grant than an en banc hearing — and yet chose this relatively unimportant case as a vehicle (no pun intended) to eviscerate the fourth amendment.

    They claimed that it was perfectly reasonable for the police to have sufficient grounds to search a guy because he was black,¹ in a so-called “high crime area,” that he looked for a few seconds at an unmarked car as it drove by him, and that he hitched up his pants. Oh, also he fidgeted when the police later approached his car, denied having anything in his hands when asked to show his hands, and complied with all police commands.

    ¹Actually, the court vigorously disputed that this was a consideration. And I’m Donald Trump.

  2. Re the 7th Circuit case about the jail destroying inmate property after 30 days: This is an example of how the law screws over poor people. If I were to be arrested, I’ve got friends, family and resources to navigate the rules for getting my property back. If you don’t have anyone, or any resources, and you can’t figure the system out, or make it work for you, you’re stuck.

    Orange County, Florida, has a rule that if you’re arrested, you can’t use money you were carrying at the time of your arrest to make bail. Corrections officers are too busy to retrieve your wallet from the property room. Same issue: If I get arrested, I’ve got someone who’ll come bail me out. If you don’t, you’re stuck.

  3. Well it looks like the D.C. Circuit is letting the illegal CDC moratorium remain, as expected. Which means Biden’s thuggish nazi behavior had the exact effect he wanted, to delay.

    The Supreme Court got played. They should have enjoined it the day it come out.

    1. I love that the resident racial eugenicist is using the ‘Nazi’ hyperbole.

      1. Landlords are having the fruits of their labor stolen. To the extent that labor represents parts of one’s life he can’t get back, he’s having part of his life seized.

        It’s not hyperbolic.

        1. First, I was just laughing at your invoking of it, you seem to have a lot in common with those guys.

          Second, if the Nazi’s had stopped with ‘temporary eviction moratorium during pandemic’ most people wouldn’t know who they were.

          Again though, the main point is that your comment really shows that invoking ‘Nazi’ hyperbole by many on the right is just some parrot-like exercise where they don’t really know what or why it’s bad just that it’s considered bad.

  4. The ketamine injection was the most horrifying for me.

    People can not just inject you with poison without your consent but lie about it? And that’s ok?

    What the fuck

    1. I am perpetually surprised that rulings like this don’t end with everybody involved murdered execution style. Perhaps we’ve grown too domesticated to remain free?

      1. Wow, I see why you find Behar’s comments to be reasonable just not always agreeable.

        1. They subjected somebody to involuntary and dangerous medical experimentation, and they’re getting away with it. Paging Dr. Mengele, paging Dr. Mengele.

          I suggest anybody who isn’t violently outraged about this has lost their sense of outrage.

          1. I suggest that anybody who thinks that outrage must express itself in murder has lost their sense of right and wrong.

            What happened here was clearly awful, those who did it deserve serious punishment. But murder? No.

            1. Outrage needn’t express itself in murder if the judiciary doesn’t shelter the guilty. If the government insists that its monsters not be held accountable, then either there is private justice, or no justice at all.

              You’d have been a right good German, I expect.

              1. You’d have been the best German, the Nazis always talked of the foolishness and immorality of formalism and extolled those who *acted* on *will.* To put it another way, they, like you, would have seen Thomas More in A Man for All Seasons as a naive fool standing in the way of ‘private justice.’

                1. So, yes, outrage, big outrage. We live in a liberal democratic society (we’re lucky there!), we should work through those channels with anger to remedy this awful wrong.

                  But you? Your approach is pure fascism. The ‘system’ is weak and naive, real men would be murdering someone.

                  1. You’re standing things on their head. The fascists centralized these things in the government, like you would. I think a people who treasured their freedom wouldn’t be peaceful in the face of this sort of outrage being sheltered by the government.

                    1. People who are obsessed with outrage aren’t “free”, Brett.

      2. Now you know why I want a bloody civil war. It’s the only way we’ll get back what used to be America.

        1. Again, couldn’t make this stuff up about you if I tried.

          You’re a sick, sick person, sadly there’s a growing sick, sick political trend marinating people like that.

          1. Yes, and I’m hoping it comes to a tipping point soon.

            Many tens of millions of Americans don’t like what America has become, and yearn for its past glory, no matter how it has to happen.

            1. Many, many people want to party like it’s 1959.

              1. 1959? People like Aktenturd are aiming for 1859.

            2. You’re a fascist and quite possibly a psychopath.

        2. “Now you know why I want a bloody civil war. It’s the only way we’ll get back what used to be America.”

          America used to be in the bottom of a 6-foot-deep hole?

      3. I came here to question that particular decision.

        “Hennepin County, Minn. paramedics injected an unresisting woman with ketamine as part of a research study without her consent (and lied in their reports, saying she was combative).”

        Unresisting. Without consent. Lied in their reports. All for the purpose of a ‘research study.’

        “When Buckley continued objecting, the officers and paramedics handcuffed her and carried her to the ambulance, where she was placed on a gurney and secured by cuffing each arm to a rail, with a shoulder harness, and hip, thigh, and ankle straps.”

        How much more sedation does a completely-restrained individual require?

      4. I wouldn’t go that far, but even with qualified immunity, how is it not clearly established that you can’t inject someone with something that’s not medically indicated and then lie about it in official reports? Do we really need a case to tell us that?

        1. Why do you say it was not medically indicated?

          1. It was “part of a research study,” apparently not treatment for an illness.

            1. Treatments for illnesses get research studied. Being “part of a research study doesn’t answer that question.

  5. I always the verb form of “calumny” was “calumniate,” not “calumnize.”

  6. “Federal law makes it a crime for an alien who has been deported to be present in the United States. Man charged with this crime moves to dismiss indictment, arguing that the law was enacted in 1929 (and reenacted in 1952) “with a discriminatory purpose and … has a disparate impact on Latinx persons.” D. Nevada: The government had to show the law would have been enacted without discriminatory intent, which it failed to do. Indictment dismissed.”

    Unconstitutional until proven constitutional? Seriously?

    And the DOJ looks like they’re not going to appeal. Was this some sort of setup?

    1. Where did you see that the DOJ isn’t going to appeal?

        1. Castro is the *former* Sec. of HUD (which, of course, is *not* the DOJ). And his quote is even ‘I *doubt*!).

          Classic Brett post.

    2. Unconstitutional until proven constitutional? Seriously?

      No. Where did you get that from?

      And the DOJ looks like they’re not going to appeal. Was this some sort of setup?

      No. I have no idea where you get your claim from that they “look like they’re not going to appeal,” but everyone else doesn’t operate in bad faith the way you think they do.

      1. https://en.wikipedia.org/wiki/Miranda_Du

        What do you know, the ruling is by a non-white Obongo judge. I hope this traitor chokes on a bowl of pho.

        1. She’s not only appointed by a ‘non-white,’ she’s ‘non-white’ herself! You know she’s operating in bad faith then, amirite?

          1. When it comes to racial issues, yes, of course.

            1. There it is, folks.

      2. “No. Where did you get that from?”

        “The government had to show the law would have been enacted without discriminatory intent, which it failed to do. Indictment dismissed.”

        1. Er, I think that’s because the original discriminatory intent was not contested.

        2. Sigh. You’re once again misunderstanding things because you’re not a lawyer. After the plaintiff made his showing that the law had originally been passed with discriminatory intent, the burden shifted to the government to show that the law would have been enacted anyway.

  7. Ever thought about making this into a monthly podcast? Just this, but with you (others too?) riffing on it for an hour. You already have a fun name for it.

    1. They have a podcast!

      It’s called (shockingly enough) “Short Circuit.”

      1. Great Scott! I swear I know what Google is. Haha.

        Thanks! I will check it out.

  8. The 10th Circuit Lakewood case dissent reads like it was written by a complete idiot ignoring the facts.

    “The majority states that Agent Trimmer had “ample opportunity” to warn St. George of her presence and identity. The facts in the record simply do not bear this out. Once Agent Trimmer heard St. George exit his house and rack his shotgun, she hid and took cover farther away from his location.”

    The dissent ignores that it was only after the SIXTH phone call where the officers failed to show or properly identify themselves as officers that St. George came out of his home armed with the shotgun.

    First call he didn’t answer.
    Second call he opened the door and looked outside, seeing no police officers because they were hiding.
    Third call he didn’t answer.
    Fourth call he tried looking into his backyard to see if the callers were in fact the police. They were still hiding completely out of sight.
    Fifth call he went outside with his cellphone light to try and see if anyone was in fact out there. The police continued to hide and avoid announcing themselves.

    Agent Timmer did, as a matter of fact, have ample opportunity to announce and show herself to be a police officer during St. George’s unarmed trips outside long before he armed himself with a shotgun because the police were behaving like cowardly criminals.

  9. “raid a legit Colorado medical marijuana farm”. They’re federal DEA agents. Aren’t marijuana farms illegal under federal law?

    1. “Aren’t marijuana farms illegal under federal law?”

      Not until the farm is sold and transported across state lines. Until then, it’s just land.

  10. The First Circuit is crazy. An alien no more has a constitutional right to be in the United States than a fetus has a constitutional right to be born.

    1. A fetus DOES have a Constitutional right to be born. What it does not have is a Constitutional right to stay inside an unwilling host(ess).

  11. The 9th Circuit’s ruling in the border shooting case illustrates that the Supreme Court acted more broadly than it needed to. If it had simply reaffirmed that extraterrtorial aliens lack constitutional rights, then a border agent shooting this side of the border might have a remedy. But in deciding the broader proposition that there aren’t generally remedies available against border agent misconduct, the current outcome follows.

  12. For the Colorado marijuana case, so long as it remains against federal law, it can’t violate the constitution for federal agents to arrest an open marijuana grow that publicly advertises itself. The quality of the evidence as to whether it fits within enforcement policy is irrelevant.

  13. In the 10th Circuit shooting case, the fact there was a dissent when police officers deliberately and premeditatedly exwcuted a person they could have safely and easily arrested speaks vumes about the current sorry state of constitutuonal law.

    In this case these officers deliberately researched and carefully planned a pretext for performing a hit rather than arresting him, carefully looking for one that wasn’t covered by current legal precedent. Far from being the type of circumstance qualified immunity was intended to cover, their carefully planned anz executed zero-day exploit reflects their skill and deliberate intent as legal hackers.

    Qualified immumity was intended to adress honest mistakes, not reward cunning zero-day exploits.

  14. In the gas station closed caption case, I’m not sure I would have sanctioned them. I agree they don’t have a case. But it’s not so obvious it’s frivolous. And if they had a case, then repeatedly suing violators is something activist groups do and something that would be considered legitimate. It isn’t itself inherently wrongful, and doesn’t strike me as a basis for issuing sanctions.

    1. “repeatedly suing violators is something activist groups do and something that would be considered legitimate.”

      Activist groups don’t repeatedly sue and then settle for what they asked for not being provided.

  15. In the Nevada present-in-the-United States can, the United States can use the same criteria in determining who can be present in this country as a woman can in choosing abortion. The constitution only prohibits unlawful racial discrimination. There’s nothing the least bit unlawful about prefering to admit aliens of particular races. There’s nothing unconstitutional about the law.

  16. In the forfeiture case, the forefeiture law requires probably cause. Ong thing I’ve womdered is why, in the complete absence of probable cause, when the agent simply claims that in his expertise and experience everybody carrying a large aum of cash is always about to commit a crime, why doesn’t the owner claim the property was not seized according to the forefeiture law and the forefeiture law doesn’t apply? It seems to me the government first has to establish probable cause, and only then can the burden shift to the defendent. And rediculously pretextual evidentary claims just aren’t probable cause.

    1. That said, if you’re going to buy something major, use a cashier’s check or something.

      1. You have something against VISA? AmEx?

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