Short Circuit: A Roundup of Recent Federal Court Decisions

Adult diapers, scalding hot showers, and a deadly joyride.

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

Friends, qualified immunity is no picnic. But in a series of recent decisions federal courts have upped the ante, bestowing a de facto absolute immunity on federal officers who (1) put an innocent teenager in prison for about two years on completely made-up evidence, (2) tried to shoot a man in the face in a fit of pique, (3) beat up an unresisting Vietnam vet for no discernible reason, and (4) beat up unresisting people who were protesting police brutality. That's all on the latest episode of the Bound By Oath podcast. New to the podcast? Start with Episode 1.

  • A warrantless drug-doggie sniff outside your home might be a Fourth Amendment violation. So, too, might a sniff outside your apartment. But outside your commercial storage unit? Decidedly not, says the Second Circuit.
  • In a rare "mini en banc" opinion, a three-judge panel of the Second Circuit clarifies/overrules some old circuit precedent on entrapment after giving a heads-up to the other circuit judges. All of which means a new trial for this Dominican immigrant who was busted after selling fentanyl to his barber, who was secretly a confidential informant for the DEA in exchange for cash and deportation deferrals.
  • Man is convicted of a drug crime, and the feds move to deport him under a statute that allows the removal of "aliens" convicted of such crimes. But wait! He was a naturalized citizen at the time of his conviction, making him not an "alien" under the statute. Feds: No matter, we also stripped him of his citizenship because he lied on his immigration papers. Third Circuit: Nope, removal of citizenship is not retroactive. He was a citizen at the time of the crime, so he cannot be deported under the chosen statute. Concurrence: Maybe under another one, though.
  • Cameroonian man—a speaker of "Pidgin English"—enters the Escherian world of immigrant-removal proceedings. Despite many clues that the man is not fluent in Standard English, the immigration judge proceeds with several removal hearings and denies the man's asylum application. Third Circuit: The Due Process Clause (yes, yes, of the Fifth Amendment, not the Fourteenth) entitles the man to an opportunity to make arguments and present evidence on his own behalf. And the immigration judge's failure to inquire into his need for an interpreter violated that right. He gets a new hearing.
  • Highly paid, salaried employees with executive, administrative, or professional duties are generally excepted from federal law requiring employers to pay time and a half for overtime hours. So an oil-and-gas company need not pay overtime to a supervisor earning over $200k/yr, right? Fifth Circuit (sitting en banc, over a pair of dissents): Nope, pay the man. He's paid a daily rate that doesn't meet the relevant definition of a salary.
  • In 2016, the en banc Fifth Circuit struck down Texas's voter ID law. Are the plaintiffs in that case "prevailing parties" entitled to attorneys' fees? Fifth Circuit (opinion by Judge Ho): I mean, obviously. Concurrence (also by Judge Ho): But let me reiterate why they should have lost.
  • The 12th Man tradition at Texas A&M stems from an incident in 1922 when, facing a stronger team and with a bench thinned by injuries, the Aggies' coach called former player E. King Gill down from the stands to suit up and stand ready to substitute in. The Aggies won, and though Gill was never called in, his readiness to serve his fellow Aggies stands as an inspirational example to this day. Fifth Circuit: In a less inspirational example, Texas A&M, which straight-up stole a biography of Gill from its copyright owner, is entitled to sovereign immunity.
  • Allegation: Texas prison guards beat up inmate who asked them to lower "scalding hot" shower temperature. There's no video or witnesses, just the inmate's word (plus medical records of his injuries) against the guards. District court: Which isn't enough to get the case in front of jury. Fifth Circuit: Reversed. And since it's clearly established guards can't use gratuitous force on inmates, no qualified immunity.
  • Article III standing helps ensure that federal courts don't issue advisory opinions, observes the Sixth Circuit, before devoting seven pages to dicta about the associational-standing doctrine. Concurrence: Those seven pages are unnecessary to resolving the controversy before us—whether the Association of American Physicians & Surgeons has standing to sue the FDA over its early-COVID regulation of the federal gov't's stockpile of hydroxychloroquine. (It doesn't.)
  • The Sixth Circuit takes a philosophical dive into the nature of severance: Is it a remedy to fix unconstitutional statutes? Or, because unconstitutional enactments are void ab initio, is it simply a recognition of what the law has always been? Three judges say the latter, which means that an energy company that made prohibited robocalls is still on the hook, even though it made those calls during a five-year period when the federal robocall statute contained an exemption the Supreme Court later held unconstitutional.
  • Was a motorist actively resisting a Kenosha, Wisc. officer when the officer tased him? You be the judge! (Skip to about :30 seconds in.) Seventh Circuit: Also, a jury should judge. No qualified immunity.
  • Among myriad abortion requirements, Indiana prohibits non-doctors from performing medication abortions, requires second-trimester abortions to be performed in a hospital or surgical center, and bans telemedicine in abortion care. District court: Improvements in medicine and technology place these laws outside the existing precedents okaying them. Seventh Circuit: It's not for the district court to modify higher-court precedent. Indiana officials may continue to enforce these laws while this case proceeds. Dissent: The Supreme Court hasn't overruled Roe v. Wade yet.
  • Police visit home of Hot Springs, Ark. homeschooling family after 16-year-old accuses his parents of neglect, abuse. The parents' seven minor children are removed from the home for several months, and it takes 21 months to resolve the charges against the parents. Who sue. Eighth Circuit (2018): Taking the parents' allegations as true, their lawsuit against at least one of the child-abuse investigators can proceed. District court (2020): On the summary-judgment record, all the remaining defendants are entitled to qualified immunity. Eighth Circuit (2021): Affirmed.
  • Have you been lying awake at night wondering why Congress included § 1158(a)(2)(D) of the Immigration and Nationality Act as a subsection of § 1158(a)(2) instead of as a free-standing section? The Ninth Circuit has you covered.
  • While appealing his conviction, California man is required to complete a sex-offender treatment program as a condition of supervised release. Uh oh! Part of the treatment program is admitting his offense! He refuses to do so, is kicked out of the program, and is incarcerated. He sues, alleging a violation of his Fifth Amendment right against self-incrimination. Ninth Circuit: The Fifth Amendment protects against the use of self-incriminating testimony in criminal proceedings. That hasn't happened yet, so there's no violation. Dissent: Dude's in jail because he wouldn't admit to a crime. Sounds like a Fifth Amendment problem to me.
  • Now-paroled Colorado inmate suffering from extreme case of ulcerative colitis (that forces him to use the bathroom nearly 30 times per day) missed hundreds of meals per year rather than risk soiling himself at the dining hall. Inmate: If officials had renewed my "movement pass" to let me skip the chow line, I could have eaten and gotten back to my cell (and bathroom) in time. Instead, they just offered adult diapers—that is, a choice between skipping meals or eating while sitting in my own feces. Tenth Circuit: A reasonable jury could find a violation of the Americans with Disabilities Act. But not the Eighth Amendment.
  • Teen takes car without permission, crashes after high-speed police chase. When a Columbus, Ga. officer (who's on foot) sees the car's reverse lights turn on, he begins to fire 11 rounds into the car, continuing as it slowly reverses past him. The car comes to a stop, and, as a passenger begs the officer for help, he walks directly in front of the car, reloads, and fires another 10 rounds. (The driver is killed. Two passengers, also teens, survive; one is shot in the face and the other in the shoulder and arm.) District court: The officer is entitled to qualified immunity for the first barrage, but not the second. Eleventh Circuit: QI for both. Dissent: QI for neither.
  • After a Little Rock, Ark. officer shoots and kills a motorist, the police chief fires him for violating department policy requiring officers not to place themselves in the path of an oncoming vehicle. State trial court: Let's make that a 30-day suspension. State appeals court: Take another look. The question isn't whether the officer behaved reasonably, it's whether he violated the policy. (We had occasion to discuss Little Rock officers' tendency to shoot motorists on a recent episode of Bound By Oath.)

In May 2019, Harris County, Tex. officers took over $42k in cash that couple Ameal Woods and Jordan Davis had scrimped and saved for years, and which Ameal was traveling with to buy a used tractor-trailer for their business. He wasn't arrested, charged with a crime, or even given as much as a warning. Later, officials filed a forfeiture action with boilerplate, copy-pasted language written by an officer who was not at the scene (a review of hundreds of cases over the past five years reveals that this is a common practice). But now Ameal and Jordan are taking the fight to Harris County. Represented by the Institute for Justice, they have filed a class action under the Texas Constitution challenging the county's system of policing for profit. Click here to learn more.

NEXT: The CMS Vaccine Mandate As Applied To State Employers

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  1. “And the immigration judge’s failure to inquire into his need for an interpreter violated that right. He gets a new hearing.”

    Isn’t this lawyer horseshit made obsolete by Google Translate?

    1. As to diaper guy, how about a gastrointestinal specialist consult to treat severe ulcerative colitis? Avoid the nightmare in a closed air environment. Why is the lawyer so stupid?

      1. The kids in Life Skills class have seen these treatments in TV commercials. They could have told the dumbass lawyer.

        1. From the FIRST paragraph of the opinion: “Brooks has an extreme and incurable case of ulcerative colitis. As a result, even when his
          disease is well treated, Brooks suffers from frequent, unpredictable fecal incontinence”.

          Dumbass lawyer-hater missed that. Surprise!

        2. We are all sick of this immunity lawyer bullshit. Immunity justifies violence in formal logic.

          The law should begin to comply with critical thinking. It totally stinks because it refuses to do, and continues to commit dozens of fallacies. Fallacies violate the Fifth Amendment Procedural Due Process Right.

          1. “The law should begin to comply with critical thinking.”

            I don’t think you’d like that.

    2. Also, Pidgin does not seem to be a currently supported language by Google translate:

      https://en.wikipedia.org/wiki/Google_Translate#Supported_languages

      Lawyer horseshit indeed…

    3. No. The quality of Google Translate varies considerably from language to language. For some it isn’t very good even as a dictionary. Even where the language is one it handles well, it is unable to understand the context the way a human interpreter can. And, finally, Google Translate does not presently handle this pidgin, or indeed any pidgin. There is no such thing as “English pidgin”. There are multiple English-based pidgin languages.

  2. Some truly horrible law enforcement behavior in many of today’s cases. But hey, BACK THE BLUE, amirite?

    1. Actually litigated cases are a small subset of police activities. Then, an anti-police activist group cherry picks cases to advance its activism.

      Tens of thousand police/citizen interactions everyday with no bad things happening.

      1. Millions of contracts without breach. Millions of medical procedures without incident. Millions of cars travel without accident. Billions of other human interactions that don’t result in needless harm. But guess what? We have real legal remedies for those harmful situations that do arise. Your contract is breached, you have a remedy. Your doctor or lawyer screws up, you have a remedy. Your car gets hit, you have a remedy. So it’s absolutely irrelevant that most interactions are harmless. The legal system exists and provides remedy for the comparatively few people who have been harmed.

        1. What happens if the scumbag lawyer profession screws up, and they do 100% of the time? There is no legal liability. That fully justifies violence in formal logic. Formal logic supports the physical eradication of the hierarchy of this toxic profession. Round up those 25000 traitors. Hold an hour’s trial, where the sole evidence would be their legal utterances. Then, shoot them in the court basement.

          1. “What happens if the scumbag lawyer profession screws up, and they do 100% of the time?”

            Which member of the scumbag lawyer profession made you bad at math?

        2. The legal system exists and provides remedy for the comparatively few people who have been harmed.

          You need some untinted glasses.

          And what about QI? Don’t the cases we’ve seen here provide a counter-example to your claim?

          1. Oh dude. My glasses are un-tinted.

            But my point could have been much clearer I suppose. Bob’s idea is that there are so many great police interactions so who cares about the bad ones, and to ask why should there be a legal remedy if that will discourage cops. My point is that the legal system overall exists in part (maybe not totally!) to address the times things don’t work. Most people perform contracts: but the legal system has answers and remedies for when they don’t. QI, and the defenses of it, are perversions of the concept.

            1. Bob’s idea is that there are so many great police interactions so who cares about the bad ones,

              Bob’s idea is that police mostly abuse minorities, and he doesn’t care about them.

              1. You should demand your money back from that on-line mind reading course you took. It’s not working.

                1. The regular kind of reading, plus a bit of memory, is sufficient to determine just how deep Bob’s care is for people who are not Bob.

      2. Then what’s wrong with fighting the “few bad apples”?

        There is no such thing as a good cop, if all the good cops you champion don’t turn in the bad cops.

      3. Tens of thousand police/citizen interactions everyday with no bad things happening.

        Think of all the people that Jeffrey Dahmer didn’t kill and eat.

        1. Which, technically, is most of them.

  3. “Teen takes car without permission, crashes after high-speed police chase. When a Columbus, Ga. officer (who’s on foot) sees the car’s reverse lights turn on, he begins to fire 11 rounds into the car, continuing as it slowly reverses past him. The car comes to a stop, and, as a passenger begs the officer for help, he walks directly in front of the car, reloads, and fires another 10 rounds.”

    One question, no peeking!

    1. So, what do you think…. any consequences for the LEO?

    Hahahahahahahahaha! Yeah, right.

    Here’s the great thing- this was a call from the grandfather about his grandson joy-riding (also with the grandson’s cousin and some girl with a baby). Thought he’d teach ’em a lesson.

    Yeah, lesson taught. This one’s a classic, too, not just emptying the clip at some teens, but then pausing and reloading and shooting into the car again!

    That’s some good police work there. Except for the part where he left two witnesses alive. Maybe next time!

    1. Weird week where the Fifth Circuit not only doesn’t have the worst QI grant, but actually got it right in a QI case for once.

      1. Reading QI opinions is not a fun experience.

        I try to keep in mind that given the procedural posture, they are reciting the plaintiff’s facts. But … I mean … c’mon.

      2. LTG (and loki13)….I thought the 5th circuit case with Judge Ho commentary was hysterically funny = Fifth Circuit (opinion by Judge Ho): I mean, obviously. Concurrence (also by Judge Ho): But let me reiterate why they should have lost.

        John Ross has a gift.

        1. He does have a gift for demonstrating some of the absurdity of judicial opinions and results in short sentences.

        2. I’ll add that even though his short descriptors are occasionally criticized for being misleading here, I do appreciate that he cuts out the lawyer-brain to get to what he sees as the point.

    2. There is sometimes (many?) instances in family disputes where calling the cops only makes matters worse.

      1. The obvious solution is to put more firearms into private possession, so that when the cops shoot your kid(s) it’s because they were armed at the time.

    3. I could imagine Judge Bill Pryor keeping that dash cam video playing on repeat in his house to get the mood right like Patrick Bateman did with Texas Chainsaw Massacre. Pryor probably fantasizes about it being him pulling the trigger on those kids instead of the psycho cop. What a sicko.

    4. I’m always amazed at how rarely in these cases the survivors hunt the cop down and kill him. It certainly seems like a justifiable thing to do, once the legal system tells you to forget about getting any justice.

      I suppose you face the fact that you’d be the most likely suspect, and just suck it up and move on with what remains of your life.

      1. Survivors? Heck, what about the parents of non-survivors?

      2. And I’m still sometimes surprised that Lon Horiuchi hasn’t been sniped yet.

      3. If that amazes you, so must the failure of families of victims killed by very bad people who are on the street because a judge let them free on personal recognizance or very low bail, or because a prosecutor refused to pursue the criminal charges or agreed to a settlement that put the perp back on the street.

        We hope that vigilante justice will not happen in any of these situations.

      4. “I’m always amazed at how rarely in these cases the survivors hunt the cop down and kill him.”

        In the comics, Bruce had trouble finding Joe Chill. But in the movies, they decided that Joker killed Bruce’s parents, not Joe Chill. And in the end, Batman kills him. Comics-Batman is also fairly strongly on the gun-control side of that particular argument. Iron Man, on the other hand, is a defense contractor. Nick Fury, Agent of SHIELD, once was SGT. Fury (of the Howling Commandoes).
        I guess this is all just background. The comics character you’re looking for is the Punisher, or possibly Cloak and Dagger.

  4. Does the Texas A&M case mean that a State Institution can make multiple copies of entire textbooks without permission, and be immune to lawsuit for copyright infringement?

  5. “Cameroonian man—a speaker of ‘Pidgin English'”

    It sounds like he spoke some sort of creole, non a pidgin.

    1. Yes, “Cameroon Pidgin English” is a creole, not a pidgin. Which doesn’t change that the standard name used in Cameroon for the creole is “Cameroon Pidgin English”.

  6. “…Dominican immigrant who was busted after selling fentanyl to his barber, who was secretly a confidential informant for the DEA….”

    Having handled confidential informants (CIs), I can tell you a lot of them are absolute sleaze bags who would sell out their mother for a steak dinner.

    Sure they’re great for law-enforcement but in the long term they’re helpless and hopeless losers.

    1. I can tell you a lot of them are absolute sleaze bags who would sell out their mother for a steak dinner.

      Still better than prison snitches, who are all perjurers.

  7. “Whether a debt collector had fair notice that it faced punishment for making robocalls turns on whether it reasonably believed that the statute expressly permitted its conduct. That, in turn, will likely depend in part on whether the debt collector used robocalls to collect government debt or non government debt. But applying the speech-neutral fair-notice defense in the speech context does not transform it into a speech restriction.”

    Yes it does.

    1. If a legislature passes a law that bans using a bullhorn in the park except for speech supporting Donald Trump, and adds a severability clause requiring the exception to be severed if it’s found unconstitutional, they’ve effectively created a content-based speech restriction, unless courts want to say that people are required to guess the outcome of court cases.

      1. Ignorance of the law is not an excuse.

  8. “an energy company that made prohibited robocalls is still on the hook, even though it made those calls during a five-year period when the federal robocall statute contained an exemption the Supreme Court later held unconstitutional.”

    That’s absolutely insane. How does that come remotely close to comporting with due process? Even assuming the conclusion is correct that the addition of the exception is void ab initio, the robocall company was not on notice what it was doing was unlawful.

    1. You have to understand the posture of the statute and the SCOTUS case
      1. Congress enacts law banning robocalls to collect any debt
      2. Later Congress amends the law to except government debts from the prohibition
      3. SCOTUS says that combination is unconstitutional as a content based speech restriction but the exception is severable (i.e back to the status quo of no robocalls for debt collection).

      The energy company wasn’t covered under the exception. So they violated even the amended statute. They are arguing that the whole law was unconstitutional because of the amended exception so they shouldn’t be liable.

      1. Ok, that makes a lot more sense now. The initial description could have used that clarification.

        I.e.: “an energy company that made prohibited robocalls is still on the hook, even though it made those calls during a five-year period when the federal robocall statute contained an exemption *that did not apply to them* which the Supreme Court later held unconstitutional.”

      2. “They are arguing that the whole law was unconstitutional because of the amended exception so they shouldn’t be liable.”

        And the law, as amended, was unconstitutional. But the court is saying that they can be sued because their speech didn’t contain content that fit within the exception, but that’s somehow not a content-based restriction on speech. This is a problem with courts severing exceptions from statutes.

        1. The law was about banning the speech of robots, which do not as yet have any right of free speech. Johnny Five is not alive, legally.

  9. It’s possible to have a valid legal argument but a stupid and destructive reason for pursuing it.

    1. Not only possible but not uncommon.

    2. Destructive reasons like corruption, graft, kickbacks, and one’s grateful cronies in crony capitalism, which are the real motivations for everything. Even anything good is really only important to the politician insofar as it aids their re-election to continue the gravy train.

      A quick look around the world and at history shows one should presume skullduggery until proven innocent.

      1. this sort of ranting is why you can’t be in charge of criminal justice.

  10. AI should soon solve the problems you bring up. But, surely the defendant spoke one of its 100 languages.

    He came in 2018. He should have gone to night school and learned to converse in American English, by now. He had representation by a white shoe law firm. His English was probably easier to follow than that of those dumbasses.

  11. Pryor’s opinion is a complete joke. On one hand, he says that after the first set of gunshots, the cop couldn’t know that the threat was over, because he couldn’t see into the car and know that the driver wasn’t going to start driving toward him again. But he also says that the cop should be commended for going in front of the car to protect his community. So, even assuming the first set of shots was justified, he’s basically saying that once a suspect does something that justifies deadly force, anything the cop does to make sure the suspect is dead after the fact is similarly justified.

    WTF

    1. You can often tell how an opinion is going to go from the first sentence. Here, we had:

      This appeal requires us to decide whether a police officer, after a high-speed
      chase, reasonably used deadly force when he stepped out of his vehicle to make an arrest and the suspect’s nearby car suddenly went into reverse.

      The word “suddenly” there is utterly nonsensical. Cars do not, cannot, gradually go into reverse. The word was used there just to make it sound like the situation was dangerous to the cop.

      (Later in the opinion, he pulled the same shenanigans:

      a vehicle that had seconds ago backed up without warning

      “Backed up without warning”? What does that even mean? That the driver didn’t roll down his window and yell, “Hey, I’m going to back up!” before backing up? Of course not. It’s, again, just a rhetorical flourish to make it sound like a non-dangerous situation was actually dangerous.

      Possibly the worst part was when he labeled police cowardice — which is what police shootings almost always are — as “courage.” The shooter was unreasonably scared¹, so he killed an unarmed teenager.

      ¹Or, hell, maybe he was reasonably scared. But you know who needs to decide that? A jury, not Bill Pryor.

      1. Pretty much. It’s the reverse of when people say “The gun just went off.” It misstates what actually happened.

      2. “Cars do not, cannot, gradually go into reverse. ”

        By which you mean they can’t do it any other way than gradually, presumably.

      3. “‘Backed up without warning”? What does that even mean? That the driver didn’t roll down his window and yell, “Hey, I’m going to back up!” before backing up? Of course not. It’s, again, just a rhetorical flourish to make it sound like a non-dangerous situation was actually dangerous.”

        Stand behind a forklift sometimes. You’ll get warned it’s backing up. Modern automobiles have this thing called a “back up light” that comes on when the car is moving in reverse gear. It’s there so that the driver can see if there are any obstacles behind the car, but it also helps tell following drivers that the car is going in an unexpected direction.
        If the tires are spinning without traction, then get traction, the car will start to move backwards without a light activating.

        1. Do you honestly think the judge meant that the reverse lights didn’t come on rather than using “without warning” incorrectly as a synonym for “suddenly?”

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