Short Circuit: A Roundup of Recent Federal Court Decisions

Shooting motorists, slapdash practices, and noble projects.

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

In 2019, in a fit of pique, DHS agent Ray Lamb pointed a loaded gun at the head of our client, Kevin Byrd, and pulled the trigger. The gun jammed. Then Agent Lamb used his badge to get police to detain Byrd, though he had committed no crime. But when Byrd sued, the Fifth Circuit said there is no cause of action under the Constitution that victims of law enforcement misconduct can bring against federal officials. Now IJ is asking the Supreme Court to review the case. And, notably, so is Agent Lamb, who, like IJ, wants the Court to resolve a circuit split on this question: Do federal officials have absolute immunity against constitutional claims? Click here to read our reply brief.

• A think tank seeks to compel FERC to disclose the names and addresses of the property owners in the path of a planned-but-since-scuttled pipeline to see if the agency is complying with its legal notice obligations. D.C. Circuit: A noble project! But also a noble project you can pursue without specific names and addresses, so FERC doesn't have to give you those.
• Third Circuit: Cops can't just go around shooting motorists simply for fleeing a traffic stop. So no qualified immunity for an Elizabeth, N.J. officer who shot a driver in the arm. A jury will have to decide if the officer reasonably believed officers or the public were in danger sufficient to justify deadly force. Three-judge concurrence: The officer violated department policy, and it's reasonable to hold officers accountable when they do that. Further, it's unreasonable to pretend that officers keep up to speed on "maybe hundreds or even thousands of applicable court opinions."
• Allegation: Violating department policy, Dallas police officer continues to kneel on the back of a mentally ill man long after he's been subdued and restrained. Other officers stand around, joke as the man loses consciousness and then dies from asphyxiation. District court: Qualified immunity. Fifth Circuit: Reversed. The victim's mother can sue the kneeling officer and several of the others.
• If you arrive at page 63 of this opinion, what you'll learn is that: "We've arrived at page 63 of this opinion, but we're still not ready for the merits." So says the Fifth Circuit en route to denying the Biden Administration's attempt to end the "Remain in Mexico" policy. Along the way it gleefully reminds us of the "what's good for the goose" maxim by relying on Supreme Court precedents that arose from much less politically conservative results. The Stuart kings also make an appearance.
• SEC prosecutes an accountant. In addition to defending herself in the agency's proceedings, she sues the agency to try and enjoin the prosecution. Can she do that? Yes, says the Fifth Circuit sitting en banc. "All civil actions" means "all civil actions." Concurrence: Woodrow Wilson was a bad guy who did way too much Hegel. Dissent: This disrupts the whole scheme Congress set up. Plus, "We are supposed to be chary—not champing at the bit—to create circuit splits."
• There's no need for an injunction pending appeal of a United Airlines policy requiring employees to get vaccinated, says the Fifth Circuit, without comment. Dissent: This religious liberty case is an "extraordinary case" where money damages won't be enough because you can't undo a vaccine.
• In which the Fifth Circuit becomes the latest circuit to address the question "Can the Bureau of Alcohol, Tobacco, Firearms and Explosives redefine 'machineguns' to include bump stocks?" And they have sided with the others by answering "Yes." In doing so they avoid the pesky question of whether Chevron deference applies.
• After 14 states challenged the OSHA vaccine mandate for the staffs of Medicare- and Medicaid-certified providers, a district court in Louisiana enjoined the mandate nationwide. The feds seek a stay of the injunction pending appeal. Fifth Circuit: Which we deny. There are hard questions here, but you need to show more than the existence of hard questions to get a stay. But the injunction should only apply within the 14 plaintiff states.
• Royal Oak, Mich. driver (with a BAC of .27) ignores officer's instructions to pull over and heads through the White Castle drive-thru. After the driver pays for his order, the officer attempts to block his exit, but the man maneuvers through. Officer fires four shots, kills the driver. Sixth Circuit: The officer reasonably believed the driver would endanger the public. QI granted.
• Three teens convicted of 1995 East Cleveland, Ohio murder are exonerated after it's revealed that detectives fabricated a statement by a 14-year-old eyewitness who later recanted (and that prosecutors withheld other eyewitness accounts identifying a different perpetrator). Jury: The detectives must pay $5 mil to each exoneree. Sixth Circuit: No need for a new trial. The jury instructions were fine.
• The City of Chicago allegedly has a slapdash practice of towing cars and destroying them while providing inadequate notice to the owners. (NB: When it comes to cars, Chicago does a bunch of other terrible things. And IJ is suing over it too.) Did the district court correctly certify a class action to challenge this system? Seventh Circuit: Honestly, we don't know. In fact, we're pretty confused about what the district court said and did. Case remanded "for another try, if that is the course the parties choose to chart."
• Eighth Circuit: Cedar Rapids, Iowa police did not conduct an "arrest" when they held two men at gunpoint and in handcuffs for 12 minutes. Also, since officers didn't have a description of one of the suspects they were looking for, they had reasonable suspicion to stop anyone. (NB: Check out IJ's newly filed cert petition challenging the Eighth Circuit's wildly broad definition of a Terry stop.)
• Criminal defendant successfully appeals her conviction, convincing the Ninth Circuit that the government failed to properly establish venue in California. But the victory is only temporary—the en banc Ninth Circuit reverses the ruling. Uh oh! By reversing the venue ruling, the en banc court un-mooted the defendant's argument that the trial court applied the wrong standard to evaluating her self-defense claim, but the court didn't remand that issue. Over 300 days later, the defendant and the government jointly move to recall the mandate for reconsideration of that issue. Ninth Circuit (en banc): Recalling the mandate isn't a substitute for a timely motion to reconsider. Motion denied (over a dissent).
• Institute for Justice (2011): Your summarist is asked by his boss for an opinion on the then-recently-filed case Kerr v. Hickenlooper, a lawsuit alleging that Colorado's Taxpayer Bill of Rights (TABOR) violates the Guarantee Clause of Article IV of the Constitution. "The Guarantee Clause?! Courts have held that nonjusticiable for a century. This case is going nowhere." Tenth Circuit (2014): The case can go forward. SCOTUS (2015): Take another look at that. Tenth Circuit (2016): Okay, the legislator plaintiffs are out, and the district court has to determine if political subdivisions can challenge TABOR. District Court (2017): The political subdivisions lack standing. Tenth Circuit (2019): No they don't. Tenth Circuit (en banc, 2021): Whatever; they still lose … just as your summarist predicted!
• Allegation: Women is convicted of child abuse after Alamosa County, Colo. social worker reports that she confessed. After the conviction is overturned, the woman sues. Social worker: There's no earlier case that says social workers can't lie about confessions. Tenth Circuit: There doesn't need to be. That's obvious. Dissent: The social worker needed a specific case to know she couldn't fabricate evidence.
• California man sends a flood of threatening and abusive messages to family and friends of victims of the Marjory Stoneman Douglas High School shooting. Federal cyberstalking prosecution ensues. But wait! Is the federal cyberstalking statute invalid under the First Amendment? Eleventh Circuit: It is not. Conviction affirmed.
• And in en banc news, the Fifth Circuit (amid a flurry of separate opinions) will not reconsider its decision that qualified immunity is unavailable for a Texas high school teacher who allegedly retaliated against a student who refused to write out the Pledge of Allegiance.
• And in more en banc news, the Sixth Circuit will not grant initial en banc consideration to a challenge to OSHA's employer vaccine requirement. Judge Moore approves because hearing cases en banc is terrible. Judges Sutton dissents that Congress never gave OSHA this power, while Judge Bush dissents that Congress couldn't have given OSHA this power if it wanted to.

Comments

[A. Friend]

A police officer in Texas kneels on the neck of a man and kills him? If the deceased had been black, it would have been front-page news. Because the deceased is white, the media are silent, lest the public get the impression that blacks are not the sole victims of alleged police violence.

[MatthewSlyfield]

The man in the Texas case was also not on drugs, spoiling the narrative of the people who defend the officer who killed George Floyd.

Contrary to many of Chauvin's supporters, yes, kneeling on someone's back for a long time can lead to asphyxiation, without either drug use or obesity.

[Jason Cavanaugh]

"Because the deceased is white, the media are silent, lest the public get the impression that blacks are not the sole victims of alleged police violence."

I'd like to introduce you to my friend Sequitur. First-name Non.

[BillyG]

Dissent: The social worker needed a specific case to know she couldn't fabricate evidence.

I'm pretty sure it doesn't even require a training course to know that perjury is illegal.

[LawTalkingGuy]

Illegal sure. But a clearly established constitutional violation for the purposes of qualified immunity? Who’s to say?

[Absaroka]

Yeah. That dissent is why QI needs reforming in one sentence.

[Flight-ER-Doc]

A government agent doesn't know that either filing a false report, or lying under oath is wrong?

[Noscitur a sociis]

From the dissent:

As the district court observed, “common sense” should have informed Defendant that “a social worker, like any other public official, cannot knowingly create false information in furtherance of an investigation.” Aplt. App., Vol. 5 at 1268. Yet, neither common sense nor our prior case law would have informed Defendant that she could not do so for constitutional reasons, as opposed to some general, moral reason.

[Ben of Houston]

It's not a common sense matter. Fabricating evidence and lying under oath are clearly known crimes that we hold even small children to. Claiming that you cannot know that you cannot do so for constitutional reasons is baffling.

Furthermore, claiming that she cannot know this without an extremely specific prior case holding this, which no one outside of legal specialists would even have a way of knowing, is simply contrafactual. To the point that I would consider it perjury if a witness said that on the stand.

[Noscitur a sociis]

Section 1983 doesn't create a cause of action for committing "known crimes". It creates a cause of action for violating constitutional rights. If you want to criticize § 1983 for not creating broader protections, that's one thing. But I don't think the judge was wrong to engage with the actual inquiry that the law requires.

[TwelveInchPianist]

It's such an obvious due process violation that state actors don't need a case, and judges make themselves look like fools when they hold otherwise.

It reminds me of the North Carolina case where a couple of judges would have found that it wasn't clearly established that it was unreasonable to sexually assault someone in furtherance of executing a search warrant.

[David Nieporent]

If you want to criticize § 1983 for not creating broader protections, that's one thing.

No, I want to criticize the courts for inventing a non-statutory QI exception to § 1983 that requires that it be clearly established that it violates constitutional rights. Nothing about § 1983 requires such an inquiry.

Even given the existence of QI, it does not further the ostensible purposes of QI to require that the actor know that it violated the constitution as opposed to merely knowing that it it's illegal.

[ReaderY]

I think you need some kind of immunity because otherwise, the day after the Supreme Court decided Lawrence b. Texas, every police officer who ever enforced a sodomy law could get sued for relying on Bowers v. Hardwick. When the law suddenly changes, it’s not fair to punish people for relying on existing law.

But as the dissent in this case illustrates, Qualified Immunity has been interpreted far, far beyond simply not holding the police responsible when they fail to predict that the courts will in the future move the law in a completely new direction.

[David Nieporent]

Remember that QI is not a defense; it's an immunity. When we allow QI, we're saying that the cop doesn't even have to defend his actions. And conversely, when we deny QI, we're not saying he loses. We're saying that he has to defend his actions.

Which is to say that in the non-QI world, few people are going to sue cops over sodomy arrests because the suits will lose. (I mean, in real life few would sue over sodomy arrests because there's a statute of limitations and there were very few sodomy arrests in the few years before Lawrence overturned Bowers.)

[Squirrelloid]

Lying - knowingly creating false information in furtherance of an investigation - is on-face a violation of the 4th amendment right to be free of unreasonable searches and seizures, as the creating false information leads to a seizure that is patently unreasonable. And that's both common sense and a constitutional violation.

The dissent is full of it.

[fafalone]

Holy crap a denial of QI from the 5th?

:reads decision:

Yup, jackpotted the panel lottery by getting Judge Willett and two of the less insane others.

[F.D. Wolf]

If one's only knowledge of the federal courts came from this site, he would conclude that half of their caseload was devoted to determining whether law enforcement officers had qualified immunity in a given situation.

[LawTalkingGuy]

I’m actually still completely dumbfounded by that Ho dissent in the United Airlines case and Blackman’s endorsement of it. Just a complete misunderstanding of employment discrimination and it’s remedies. Ho probably knows that and knows he’s just engaging in some special pleading for “Christians.” I mean the assertion that it’s bad they’re suspending people at Christmas is kind of a tell. (He also says Christmas is one of the holiest times of the year…which also strikes me as overstated. I mean it’s certainly not compared to Lent/Holy Week/Easter and to the extent it is, that’s an invention of the last 150 years or so.)

In terms of remedies, there is zero difference between a suspension for a violation of an employment policy that might violate Title VII’s prohibition on religious discrimination and an adverse employment action that might violate any other Title VII prohibition. That it’s a vaccine is irrelevant. That it’s Christians around Christmas its super irrelevant. The remedy for the adverse employment action is damages. He sort of gives that away when he talks about “loss of livelihood” which is the same issue in every single Title VII (and ADEA and ADA) case involving a suspension, termination, or constructive discharge.

And if he actually believes that having a religious crisis of conscience is a unique and worse harm than say being fired for something you can’t control like your race, then that’s not only kind of messed up, but also just not legally supportable at all. There is no reason to believe religious discrimination opens up more preliminary remedies under Title VII or traditional equity principles than other types of discrimination.

Blackman on the other hand might genuinely not know how bad Ho’s reasoning is. For as good as he is at SCOTUS trivia, pedantry, and attempted tea-leaf reading based on the justice’s personalities…he can be kind of a smooth-brain when it comes to a lot of legal areas he doesn’t deal with much or things that most lawyers practice.

[Dilan Esper]

There's a running gag on Jesse Singal's and Katie Herzog's excellent "Blocked And Reported" about some tweet that said it was especially horrible that some politically incorrect thing was done "during Pride month", as in "how could you do THAT during Pride month?". The implication being that it's somehow worse than doing the same thing during the 11 other months of the year.

That's exactly what Judge Ho is doing with the Christmas references.

[Toranth]

There are some activities that are time-relevant, though. Last year, the closing of churches and synagogues during this season was more important than if it had been done during, say, early August.

[Noscitur a sociis]

Now IJ is asking the Supreme Court to review the case. And, notably, so is Agent Lamb, who, like IJ, wants the Court to resolve a circuit split on this question: Do federal officials have absolute immunity against constitutional claims?

Lamb's response to your petition seems pretty explicit that the Supreme Court should not take the case, and further denies that the circuit split even exists. It's true that it goes on to say that if the court does take the case, it should consider overruling Bivens altogether. But I don't see any way to conclude that it's asking the court to do that except as a second, dispreferred alternative.

https://www.supremecourt.gov/DocketPDF/21/21-184/201561/20211130093150856_21-184%20Brief%20in%20Opposition.pdf

Or am I missing something?

[ducksalad]

NAL but that lawsuit claiming TABOR violates the Guarantee Clause seems outrageous on its face. Why did they get 10 years worth of process before being told to go away?

[MatthewSlyfield]

They took the long way around to nowhere.

[Shamie Ervin iv]

My people came here from Ireland and made whisky on a 160-acre land grant in WNC. The men ran off and hid in the mountains from recruiters when the civil war came. They had no axe to grind since they had just arrived in the USA a decade or so before the war began. They always loved this country and thrived in it; but, you know, for me of the fourth generation since their arrival, it looks shameful to me, and like a banana republic, if Byrd can't have his recovery from the SOB Lamb.

[Brett Bellmore]

Your typical semi-auto, if it jams, can be manually cycled to clear the jam. The jam just keeps you from firing it a second time by only pulling the trigger.