Short Circuit: A Roundup of Recent Federal Court Decisions

RV park leases, wrongful birth, and a major question.

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

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• Allegation: During the mid-2000s, the terrorist group Jaysh al-Mahdi openly controlled Iraq's Ministry of Health and used it as a vehicle for terrorist activity. They were abetted in this by medical supply and manufacturing companies with U.S. ties, who provided kickbacks to the group in exchange for lucrative business opportunities in the country. Victims of Jaysh al-Mahdi's terrorist attacks that were in part funded by those kickbacks sue the companies under the Anti-Terrorism Act. D.C. Circuit: Yeah, if that's all true, it's pretty bad. I mean, the Ministry of Health Headquarters is alleged to have had "Death to America" signs hanging all around it. So the case goes forward.
• Woman attending her boyfriend's plea hearing (attempted murder of the mailman) exclaims "piece of shit!" as she leaves the courtroom. The judge calls her to the bench, holds a two-minute hearing, declares her guilty of criminal contempt, and sentences her to ten days behind bars, to begin immediately. (She's ultimately confined for 13 days due to "an error.") Fourth Circuit: There's not a lick of evidence the woman had the criminal intent necessary for a contempt conviction. Overturned. And lay off these summary hearings.
• Medicare administrative contractor concludes that a Medicare service provider for nursing homes received $8.3 mil in excess reimbursements and begins recouping payments. The service provider seeks redetermination from the administrative contractor and loses. So it takes the next step, seeks reconsideration by an independent contractor and loses. So it takes the next step and seeks review by an ALJ and loses. Finally it takes the next step and seeks review by the Medicare Appeals Council, wins, and sues HHS for repayment of the recouped funds (meanwhile, during this years-long process, the company has gone out of business). District Court: No jurisdiction. Your grievance about not getting repaid is a separate agency action that hasn't been administratively exhausted. Fifth Circuit: No, it's a continuation of the same agency action—and the administrative contractor's sneaky, eleventh-hour attempt to drag the case back into administrative hell was ultra vires.
• Man is sent back to jail for attending his plea hearing drunk. Were Crawford County, Mich. jail officials who saw his delirium tremens symptoms—hallucinations, agitation, and disorientation brought on by alcohol withdrawal—deliberately indifferent for not seeking medical treatment until it was too late? Sixth Circuit: A jury might think so. No to qualified immunity; yes to trial.
• Is whether the president can require federal contractors to employ vaccinated workers a "major question?" Sixth Circuit: Yep. So the relevant statute likely does not give him that authority.
• Michigan man: No, I wasn't super drunk at the airport. My daughter (in tears, afraid to leave with me), a bystander, and several police officers were all wrong about that. I can sue the officers for arresting me for disorderly conduct, yes? Sixth Circuit: No.
• A handy rule of thumb in Fourth Amendment cases is that drivers always lose. So it is in this case out of the Eighth Circuit, in which police claim to have detected the smell of burning marijuana coming in through the back windows of their patrol car while 100 meters behind a suspect's moving car on a windy day. Now that may seem unlikely, particularly because the suspect's car contained less than a gram of unburnt marijuana in a closed container, but don't worry, the plausibility of this was confirmed by a trainer for Desert Snow, a company run by cops that trains other cops on how to civilly forfeit as much property as possible. So anyway, this guy is going to jail for being a felon in possession.
• Allegation: Motorist arrested for suspected DUI turns out to have a prescription for the only drug found in his system. He dies after going without medication, experiencing mental health crisis, and scuffling with Willcox, Ariz. jail officers. Ninth Circuit: Qualified immunity for punching, tasing, and pinning him down until he was restrained. No qualified immunity for tasing and choking him after he was restrained. Also Ninth Circuit: Where's the video?
• Washington state woman goes to a federally qualified community health center for her regularly scheduled injection of the birth-control drug Depo-Provera. Oops! They give her the flu shot instead. When she goes back for her next birth-control injection, they explain their whoopsie-doodle and suggest she take a pregnancy test. She's pregnant, and later gives birth to a child who suffers from epilepsy and bilateral perisylvian polymicrogyria, a birth defect of the brain's cortex that causes neurological delays. She brings a "wrongful birth" claim under the Federal Tort Claims Act, and she, her partner, and her child receive over $10 mil in damages. Ninth Circuit: We're going to ask the Washington Supreme Court to clarify whether you can have a wrongful birth claim when there's no reason to suspect a birth defect. We are also—INEXPLICABLY!—going to use a "(simplified)" parenthetical instead of @SCOTUSPlaces now-standard "(cleaned up)" parenthetical.
• Decades ago, a group of RV owners purchased 50-year memberships to an RV park on the banks of Lake Chelan, Wash. Yikes! The RV park only had a 25-year lease. Can the RV owners stay? Ninth Circuit: Well, it's complicated—this is American Indian land currently held in (disputed) trust by the Bureau of Indian Affairs, and resolving the question requires our delving into 19th century land ownership, 20th century executive orders and treaties, and 21st century estate statutes. The short answer is the RV owners are going to have to find somewhere else to vacation.
• Is it cool for a district court to impose a longer sentence on a defendant for having pleaded guilty without a plea agreement? Tenth Circuit: What? Decidedly not cool. And more to the point, inconsistent with 18 U.S.C. § 3553(a) and hence procedurally unreasonable. Case remanded for resentencing.
• Allegation: On learning one of her dancers, a high school senior, had been selected to be on a major university's dance team, Overland Park, Kans. dance coach texts her disappointment to a colleague (cleaned up): "It actually makes my stomach hurt. Bc she's f*****g black. I hate that." The principal fires the coach, but the coach, among other things, encourages the dancer's teammates to be unkind to her. (They oblige.) Tenth Circuit: There may not be a case right on point, but it's been obvious since the 1950s that treating African-American students differently because of their race is unconstitutional. No qualified immunity for the coach.
• Tenth Circuit: Though some states allow it, there's nothing in the U.S. Constitution or federal law that requires courts to grant defendants access to a crime scene that is in the control of a third party. So no need to disturb man's convictions for, among other things, murdering his ex-girlfriend in her trailer (now in the control of relatives) on tribal land in Oklahoma.
• Does the State of Florida have standing to appeal a federal district court's order making federal funds available for a federal public defender to appear in state post-conviction proceedings on behalf of a death-row inmate? (Confused? Welcome to habeas.) Eleventh Circuit: No. Two-judge special concurrence: Here's an advisory opinion on why we'd reverse the district court "if we had jurisdiction over this appeal."
• Plaintiff: In the 1940s, the City of New York contaminated land I eventually bought in 1986. That means they're trespassing by leaving their contaminants behind, and they owe me damages, and also I shouldn't have to pay the taxes I owe on the land! Eleventh Circuit: Sir, this is an Arby's a bankruptcy proceeding. You can't fight about your property taxes here, and your trespass claim is way, way time-barred. Concurrence: But, since you asked, your trespass thing is also just wrong.
• And in en banc news, the First Circuit will reconsider its (2018, unpublished) decision granting qualified immunity to Massachusetts prison officials who allegedly kept an inmate in solitary confinement for 611 days without adequate justification or meaningful review.
• And in more en banc news, the Eleventh Circuit will reconsider its decision allowing a lawsuit to go forward against Martin County, Fla. officers who arrested and jailed a man named David Sosa for three days even though he told them they were after a different man named David Sosa (which he knew because he'd previously been mistaken for the wanted Sosa).

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Comments

[BillyG]

Ok, the BS about cops being able to smell weed through cars at speed needs to end one way or another.

[David Nieporent]

Yes. But there is an insane amount of court bias in favor of cops who recite the magic incantation, "Based on my training and expertise." Unlike a scientist, the cop is not required to prove that his training or expertise are valid. All he has to do is say those magic words and the courts say, "Okay, he's telling the truth."

The cops perjured themselves. Judges pretend otherwise. "Oh, they seemed credible and they all told the same story." Whoop-de-doo. They're trained liars, and they coordinated on their story.

[bacchys]

The courts love "training and experience" even though it's copspeak for "I'm lying my ass off."

[Kenneth Almquist]

There were expert witnesses on both sides of the case. The defense witness hadn't done any experiments on the odor of burning marajuana, so I don't think it was unreasonable for the judge to conclude that the evidence favored the prosecution.

[David Nieporent]

I dunno; the fact that there wasn't any burning marijuana in the car probably should have called that into question.

Also, there were not expert witnesses on both sides of the case; that's my point. There was an expert witness for the defendant, who had conducted some experiments but maybe not the perfect one, and there was an "expert" witness for the prosecution, who would have been excluded under Daubert if courts took that seriously when applied to prosecutors. What experiments had he done? None. He had just driven around a lot and claims to have smelled marijuana sometimes, and some cops told him that they had done that too.

[Merlin's Beard]

When Judge Ebinger (who denied the motion to suppress in this case) was a state court trial judge, I can't remember winning a single suppression motion in front of her. Plus, the DMPD is locally infamous for its officers' ability to smell marijuana and alcohol at great distances and through closed windows.

[John F. Carr]

After the voters eased restrictions on marijuana the Supreme Judicial Court of Massachusetts mostly outlawed traffic stops based on its odor. The judges must have recognized that officers would testify to a "strong" smell if that's what was required. There was also a period when police were supposed to testify to one of fresh or burnt marijuana smell but not the other (I forget which one was bad).

[rsteinmetz]

I'm sure that gut David Sosa was being helpful when he told the cops they got the wrong David Sosa, unless they got the right one and he was lying to them.

My dad used to get periodic calls looking for a sketchy who had the same name and was involved in a number of illegal activities. My dad (a WWII vet) who went to college on the G I Bill in the early 50s had to deny he had outstanding and delinquent student loans for this same guy.

I once got a call from the police looking for the other guy because of my last name.

[BillyG]

I think duplicate names are pretty common. Cops really need to check SSN and photos before arresting.

[mse326]

Didn't you know. You don't need to probable cause that the individual did something, you only need probable cause that someone with your name did something. John Smith but be on the lookout

[nobody 2]

"The judge calls her to the bench, holds a two-minute hearing, declares her guilty of criminal contempt..."

I don't actually know where the term "contempt of court" originates from, but I think it's interesting that every single time I've ever heard of it being used in real life was a situation where any normal person would naturally view the court with contempt.

[robbbb]

Seems like the judge was beneath contempt in fact. Does anyone know if she has an opportunity for restitution?

[mse326]

Given judicial immunity I doubt it

[John F. Carr]

I was trying to imagine the consquences if a summary contempt jailing overturned on appeal rendered the judge personally liable. It would give a strong incentive to simply remove the unruly party and handle the case as a regular criminal prosecution.

[TwelveInchPianist]

Sure. Do you think courts would need such extraordinary powers to prevent people from showing contempt for them if they weren't so worthy of contempt in the first place?

[David Nieporent]

Yes.

[DewbieDewbieDoo]

What happened to the notion that one needs to have the opportunity to obtain counsel before facing a proceeding that may deprive them of liberty?

[Commenter_XY]

Something I learned early in life: Do not, do not, do NOT ever 'diss' a Judge in their courtroom. This case is a good reminder of that valuable life lesson.

[MatthewSlyfield]

Personally, I think it's not at all clear on the record we have who the woman was calling a "piece of shit" as she left the court.

[bacchys]

I'm not a fan of qualified immunity at all, but there was some schadenfreude in reading the Bauman granting qualified immunity to the officers who arrested him upon reading these words:

"Bauman is a police officer..."

[Noscitur a sociis]

Note that the case did not really involve qualified immunity.

[David Nieporent]

I mean, I get your point, but it was a bullshit arrest. Not in the legal sense of not having probable cause, but in the real world sense of this not being a legitimate crime. Based on the description in the opinion, he obviously should not have been allowed to drive home. (And his "Oh, I'll just let my partially-licensed kid drive, and I'll supervise her while drunk" doesn't do it, either.) So, fine: stop him, detain him, don't let him drive.

But why is that grounds for arrest? They used a fake charge: disorderly conduct. This is part of the overcriminalization of society. There was no disorderly conduct. This should've been resolved by calling him a cab. If he got belligerent and refused to do that, then maybe you have no choice but to arrest him. But that's not what the opinion describes.

[ReaderY]

In the Nebraska dance case, I think the 10th Circuit is mistaken in its reasoning on the question of state action, altjough I think the result is correct. I think the correct rationale is to note that interlocutory appeals are based on qualified immunity, but qualified immunity only protects state actors, not private individuals. So to assert one was not a state actor is to assert one isn’t entitled to an interlocutory appeal. Ms. Fine was entitled to plead in the alternative -either she was not a state actor, or she was a state actor entitled to qualified immunity. But for purposes of the interlocutory appeal, which is only given to state actors, she could not assert she was a private individual without pleading herself out of interlocutory appelate jurisdiction.

The 10th Circuit’s reasoning - that being a state actor is an element of Section 1983 but not an element of the Equal Protection Clause - is nonsense. The Equal Protection clause requires only states to provide equal protection of the laws. It does not apply to private individuals. State action is indeed an element of the Equal Protection Clause itself.

I agree that there need not be a case specifically on point for a state official to know that orchestrating the ostracism of a black student because she is black violates the Equal Protection Clause.