Short Circuit: A Roundup of Recent Federal Court Decisions

ATV noise, threat threats, and wasting judicial resources.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

State constitutions don't have enumerated powers like the U.S. Constitution. On the one hand, that's a dangerous thing. On the other, state constitutions try to compensate by guaranteeing rights even more strongly than the federal version. And a key aspect of that guarantee is judicial engagement. So says IJ's Anthony Sanders in his review, over at Duke Law's Judicature, of the book Who Decides? by Sixth Circuit Chief Judge Jeffrey S. Sutton.

Friends, if you only read one article today about the FBI and U.S. attorneys lying to a judge and seizing over $100 mil. in cash, precious metals, and jewelry from hundreds of people's safe-deposit boxes over unknown crimes and without any probable cause whatsoever, we hope you'll read this one from the Los Angeles Times.

• Allegation: New York regulator threatens insurers who have relationships with the NRA that she'll come down hard on them unless they sever their ties with the gun-rights organization. NRA sues, claiming First Amendment retaliation for its First Amendment protected activities. District court: This case can go forward. Second Circuit: Qualified immunity. It was kind of a threat, but not like a threat threat.
• Allegation: Warren County, N.C. couple live in the woods a mile from the nearest paved road, but the tranquility of their rural existence is shattered in 2017 when an ATV racetrack and recreation park opens on their nearest neighbor's property. District court: Ooh, bummer, but since you want to sue the county over the 2011 changes to its noise ordinance that allowed for the racetrack and the statute of limitations is three years, it's too late. Fourth Circuit (unpublished): On the contrary, there was no injury in 2014; the couple's claims didn't accrue until 2017 at the earliest. Case undismissed.
• Back in 1980, the Supreme Court held that California could prohibit shopping centers from excluding pamphleteers, the state having determined that malls had replaced town squares as an "essential and invaluable forum" for exercising First Amendment rights. Fifth Circuit: Twitter's monopoly on tweets makes them the shopping mall of the twenty-first century. Thus, the Texas law requiring Twitter to host tweets it finds objectionable is un-enjoined.
• Plaintiffs challenging Harris County, Tex.'s felony-bail system can't sue state judges—they're barred from doing so by sovereign immunity. That's fine, say the plaintiffs, we'll just take third-party discovery from the judges. Fifth Circuit: No dice. Although sovereign immunity is generally invoked by state defendants, a major purpose of the doctrine is to "prevent the indignity of subjecting a state to the coercive process of judicial tribunals at the instance of private parties." Having to comply with a subpoena is one such indignity.
• "That federal officers who refuse to identify themselves can spontaneously, and unprovoked, beat an individual nearly to death and be entirely free from civil liability simply because the individual chooses not to waste judicial resources on a frivolous appeal is not compatible with notions of an ordered and civilized society." So writes Judge Clay, dissenting from a Sixth Circuit holding that not appealing the dismissal of one set of claims (which were not considered on the merits) means an entirely different set of claims are barred. It's "a profound and frightening miscarriage of justice." (This is an IJ case. We made a podcast about it. We're going to appeal.)
• Male Wisconsin inmate, a practicing Muslim, is strip searched in view of a transgender male prison guard. He asks that future strip searches be conducted and witnessed only by biological males, alleging that there will be (literal) hell to pay if he allows his nether regions to be viewed by a woman other than his wife. Seventh Circuit: For RLUIPA purposes, all that matters is the sincerity of the inmate's belief. And since he is sincere and an accommodation would be easy, the inmate wins.
• Courthouse News Service is renowned for reporting on civil litigation, suing court clerks to get immediate access to newly filed complaints, and demolishing arguments about Younger abstention. Just wrecking them. In the Fourth Circuit. In the Ninth Circuit. (Not in the Seventh Circuit.) And as of this week, in the Eighth Circuit as well. (Younger abstention is so pernicious we did a podcast about it.)
• Des Moines, Iowa police officers, sued after a suspicionless traffic stop: "[T]here is no clearly established right to drive with a nervous passenger through a high crime neighborhood with a temporary tag that is unable to be read by officers following the vehicle." Eighth Circuit: No dice. And no qualified immunity.
• District court: It was unconstitutional excessive force for an Edmond, Okla. officer to shoot a man three more times after the officer's initial shot stopped the man from barreling towards him. (The man dies.) Tenth Circuit: But not every reasonable officer would have known that. Qualified immunity.
• Pretty much the entire internet has capsule-sized views on the Eleventh Circuit's grant of a stay in the Trump-document-seizure case. All said takes are hereby incorporated by reference.
• Man spends night in Fulton County, Ga. jail after court employees leave some papers in the wrong pile and charges that had been resolved are referred for prosecution. Georgia Supreme Court: Which was an administrative foul up, not a judicial one, so the employees are not shielded by quasi-judicial immunity.
• And in en banc news, the Eleventh Circuit will not reconsider its ruling that a $30k fine over uncut grass is not an excessive fine. (This is an IJ case.)
• And in amicus brief news, IJ is asking the Supreme Court to finally take a keen look at something it has presumed—absolutely wrongly and to the great detriment of the republic—to be true for 70 years: that Congress meant to incorporate the common law into Section 1983 notwithstanding unambiguous language to the contrary.

If you enjoyed the podcast's trip to Montana last week, you'll surely be bowled over to learn that one of the cases featured on the show is now the State Con Law Case of the Week. In a voting rights case, the Montana Supreme Court heartens, tantalizes, and emboldens fans of judicial engagement everywhere by declining to apply federal constitutional standards to the state's constitution—for now. Click here to learn more.

Comments

[Drbusybody]

I am baffled by some of these thumbnail descriptions. No one should have to read these lines twice to understand them. Would you please make these descriptions more understandable before posting them?

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I second that request, and have asked before. I understand the desire to condense these so more fit in a small post. I understand the desire to be cute and clever. But the purpose of these posts is to illuminate court decisions, not to advertise the author's cleverness.

[David Nieporent]

You know, someone should invent something called a hyperlink. Then the IJ could add them to its roundup newsletters. People who are interested in learning about the cases could click on these
hyperlinks! These newfangled inventions would take people right to the cases themselves so people could read them!

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You know, someone should invent the concept of a single clear sentence in lieu of having to download and read 50 page PDFs of legalese.

[darkknight9]

Perhaps in lieu of going to law school to understand them, you could apply a desk reference and take the time to read many of them to begin to understand?
Or you could do what I do. I ask questions when I don't get something and can't figure it out.
You could, I suppose go the long haul route and perhaps listen to the podcast in question where you may hear a guffaw or two over the writing, but they may discuss topics enough to lend to understanding.
asking ? ftw!

[David Nieporent]

I fear you misunderstand the purpose and target audience of the Short Circuit newsletter. (If you can't understand the straightforward (but humorous) summaries of the cases, you aren't in the latter.)

[Noscitur a sociis]

Which of the descriptions did you find anything but pellucid?

[Brett Bellmore]

"This case can go forward. Second Circuit: Qualified immunity. It was kind of a threat, but not like a threat threat."

It was kind of the 2nd Circuit, and 2nd amendment related.

[Squirrelloid]

5th Circuit releases a terrible opinion on a constitutional right.

2nd Circuit: "Hold my beer"

[Harvey Mosley]

9th Circuit: Hey y'all! Watch this!

[Krayt]

Well, last week I wondered aloud whatever happened to this unconstitutional threat. I get my wish, and it is typical.

Allegation: New York regulator threatens insurers who have relationships with the NRA that she’ll come down hard on them unless they sever their ties with the gun-rights organization. NRA sues, claiming First Amendment retaliation for its First Amendment protected activities. District court: This case can go forward. Second Circuit: Qualified immunity. It was kind of a threat, but not like a threat threat.

Why? Is a strong knee to the nuts while filming it so we can laugh on YouTube out of the question? Or boob as the case may be?

Note to freshmen programmers at Reason: editing a post with tags like blockquote in it deletes the tags so you have to edit a second time to restore them.

[ThanksForTheFish]

The lawyers in the US vault case need to push for an special counsel to investigate the crimes of FBI agents and US Attorneys.

Multiple people need to be in jail for this.

[BillyG]

This ranks pretty low on the list of things people at the FBI need to be in jail for.

[bevis the lumberjack]

The FBI flagrantly ignored an explicit court order. Why should I trust them on anything?

[Brett Bellmore]

Not trusting the FBI on anything is kind of over-determined, and has been for decades.

[MatthewSlyfield]

FBI=Foxes (guarding hen houses) & Bumbling Idiots

[Chuck P. (The Artist formerly known as CTSP)]

New York regulator threatens insurers who have relationships with the NRA that she'll come down hard on them unless they sever their ties with the gun-rights organization... Second Circuit: Qualified immunity. It was kind of a threat, but not like a threat threat.

Allowing politically motivated regulators to get away with saying what is essentially, "This is a nice business you got here, it would be a shame if anything happened to it," is not a good look for a circuit court.

[Santaxd]

One Clinton judge, and two Obongo judges, including the slant-eyed chink who wrote the decision.

[Rev. Arthur L. Kirkland]

If it’s the Volokh Conspiracy, there will be bigotry!

[bernard11]

He's just trolling, Arthur.

Mute him and move on.

[Rev. Arthur L. Kirkland]

This blog censors liberals but not bigots. The incessant bigotry is a core element of this blog and should be mentioned. If the Volokh Conspiracy attracts bigots — racists, immigrant-haters, gay-bashers, Islamophobes, white nationalists, misogynists, white supremacists — and provides a safe space for them, why not direct attention to that?

[Curle]

You left off fantasists, shakedown artists, Bolsheviks, scapegoat mongers and serial defamers but I guess that would be against interest for you.

[Harvey Mosley]

And another use of the mute button!

[F.D. Wolf]

Back in 1980, the Supreme Court held that California could prohibit shopping centers from excluding pamphleteers, the state having determined that malls had replaced town squares as an "essential and invaluable forum" for exercising First Amendment rights. Fifth Circuit: Twitter's monopoly on tweets makes them the shopping mall of the twenty-first century.

This made me think of George Romero's 1978 film Dawn of the Dead, which concerns a group of survivors of the zombie apocalypse holed up in a shopping mall. Romero, who always had a penchant for inserting ham-fisted social commentary into his splatter films, was suggesting something about consumerism and those who flocked to shipping malls being akin to zombies. So, I think that Twitter really is the shopping mall of the 21st century.

When there's no more room in hell, the dead will post on Twitter.

[SRG]

New Oldsmobiles are in early this year.

[apedad]

I get it. 🙂

[F.D. Wolf]

District court: It was unconstitutional excessive force for an Edmond, Okla. officer to shoot a man three more times after the officer's initial shot stopped the man from barreling towards him.

Ponder the absurdity of that determination. The deceased (Lewis) had four bullets in his front torso. Imagine someone, a few feet away, rushing you. He'll be on top of you in, at most, a second. Do you fire one shot, then wait to see what happens? Only if you're an idiot.

Police were responding to a domestic disturbance call that Lewis was "beating up a girl". When they get to the residence, the guy removes all his clothes and goes running through the neighborhood. (This means he is almost certainly high on methamphetamine. People on meth get really hot, so they take their clothes off). Two other officers (Box and Scheman) spot him, order him to stop, but instead he runs to the nearest residence and busts through the oval glass window on the front door. (Meth power). Box follows Lewis inside, orders Lewis to stop, but Lewis rushes him. Box hits him with his taser to no effect. They begin to scuffle. Box hits him a second time with the taser to no effect. (Super meth power).

Scherman then enters the home and witnesses Lewis pummeling Box. Box attempts a third time to "drive stun" Lewis with the taser to no effect. Lewis then turns toward Scherman and rushes him. Scherman draws his firearm and shoots Lewis four times.

Keeping in mind these are the facts as viewed "most favorably toward the plaintiff", some effete district judge found this to be "excessive force". This case is an argument for qualified immunity. It is tragic that a man is dead, but to place that officer, in that position, at the mercy of a jury who can take away everything he has, in this era of anti-police animus, is unconscionable.

[Squirrelloid]

No, this case is not an argument for qualified immunity. It’s an argument for letting a jury hear the facts and render a decision on whether the force was excessive or not.

Regular citizens have no such protection from a jury. Juries are our last line of oversight in making sure government is doing the right thing. Government giving itself a get-out-of-trial card is effectively claiming government employees don’t need oversight.

So make the cop convince a jury. If it truly wasn’t excessive, then that shouldn’t be too hard, even with anti-cop animus.

Also, you could try getting the facts of the case right. The victim was not on meth. Toxicology showed he had Benadryl and THC in his system – neither of which are known for ‘superhuman powers’. (And as to the THC: “according to the DA’s statement it was not a level that concerned medical experts.” https://www.news9.com/story/5e34705f527dcf49dad6ef11/officerinvolved-shooting-that-killed-an-edmond-teen-is-justified-okla-co-da-announces )

While the initial caller thought he was assaulting his girlfriend, the police got a more complete picture before they ever caught up to him. “they received information that Lewis had ‘flipped out’ on his girlfriend, was involved in a dispute with another person and was not acting normally.” (same link) So they knew he was having some sort of mental health crisis, and they knew he had no weapon (because he was naked).

Now, if the police description of their encounter with Lewis is accurate, I’d think they’d have a pretty easy time persuading a jury that all the shots were justified. After all, they didn't know if anyone was home in the residence that was broken into (there was) or if they were in danger, so pursuing him into the house makes sense. At which point, they put themselves in close proximity with Lewis where they could be attacked, and pre-firearm seem to have been losing that fight. Certainly some shots were justified.

However, the cop’s description of the shooting claims that it was the last shot that stopped him, not the first. That’s a materially different set of circumstances than the Round Up’s description, and as that’s an inquiry into a matter of fact, a jury absolutely should have heard it and decided.

[David Nieporent]

No, this case is not an argument for qualified immunity. It’s an argument for letting a jury hear the facts and render a decision on whether the force was excessive or not.

Regular citizens have no such protection from a jury. Juries are our last line of oversight in making sure government is doing the right thing. Government giving itself a get-out-of-trial card is effectively claiming government employees don’t need oversight.

This times infinity.

A lot of people mistakenly think — and are encouraged to do so by copaganda — that a denial of QI is the same as imposing liability. It's not. It just subjects the cop to a trial. Why are people so scared to have a jury decide whether a cop's actions were reasonable? (Besides the obvious: that they realize that the cop's actions were unreasonable.)

[F.D. Wolf]

Likewise, a lot of people think, and are encouraged to think by anti-police propagandists, that a finding of QR bars recovery for a plaintiff. It, of course, means any recovery will come from his government employer, not the officer personally

Why would the plaintiff care where their check actually comes from?

The answer is, of course, they don't, but some people wish to use the civil court system to extract a pound of flesh and to destroy lives, which is not its purpose.

[David Nieporent]

Likewise, a lot of people think, and are encouraged to think by anti-police propagandists, that a finding of QR bars recovery for a plaintiff. It, of course, means any recovery will come from his government employer, not the officer personally.

1) I assume that QR is a typo for QI. If it's not, I don't understand what you're trying to say. If it is, then you're wrong. It's almost impossible to recover from the government employer, because along with the other aspects of immunity is the elimination of respondeat superior in these types of cases. A plaintiff has to show that it was essentially a government policy to violate people's rights in that way to recover from the employer.

2) The employee virtually never pays, even if QI is denied and he's found liable. Government generally — and virtually always when cops are involved — indemnifies employees.

Why would the plaintiff care where their check actually comes from?

The answer is, of course, they don’t, but some people wish to use the civil court system to extract a pound of flesh and to destroy lives, which is not its purpose.

Sure it is. If I sue someone, it's because I think that person wronged me. I want that person to compensate me. Sure, I want to be made whole, but I want to be made whole by the malfeasant, not by innocent bystanders (taxpayers). And in contexts where one is suing for punitive damages, the entire purpose is to punish the wrongdoer, which can only happen if the wrongdoer pays.

[F.D. Wolf]

Yes, I meant QI. Perhaps I was thinking of Quiet Riot. And yes, I confess, you were right and I was wrong about the difficulty about establishing vicarious liability.

But allow me to share an open secret. Eliminating QI will change nothing, because reality demands it. No one can function in an employment situation in which he is perpetually at risk of multi-million-dollar judgments against him at the whim of a jury. Police virtually never pay a dime of the judgments or settlements against them. Smart lawyers (and even dumb ones) know they'll never collect a multi-million-dollar judgment from a $40,000/year cop. Government always picks up the tab, because society couldn't function if it didn't.

[David Nieporent]

No one can function in an employment situation in which he is perpetually at risk of multi-million-dollar judgments against him at the whim of a jury.

And yet, doctors do it every day. Why are cops (and other government employees; we always focus on cops, but every state government employee operates under the umbrella of protection of QI) such delicate snowflakes that the fear of liability will prevent them from being able to do their jobs, while surgeons somehow manage to soldier on?

[Jason Cavanaugh]

That's an interesting argument, but I don't think it holds up.

Doctors are not asked to involve themselves in situations where violence is routinely necessary, resulting in arguments as to whether too much violence was used or not.

Despite that, I still think QI is absolute bullshit. I know how I'd react if a cop wrongly caused serious injury or death to one of my family members or loved-ones and the courts said "too bad."

Frankly, I'm shocked that more people don't take the vigilante route in those situations.

[tkamenick]

Do you ever drive a car? You are at frequent risk of multi-million dollar judgments against you at the whim of a jury.

[Toranth]

Aren't police usually insured against those sorts of judgements? At least in my area, they're required to be - and the department pays for it as part of the benefit package. As long as it isn't a "criminal act".
So why should the police officer modify (or even moderate) their behavior when they have no personal risk?

That said, while checking, I found an article explaining that one department did revamp all their policies and fire some officers because their insurance provider got tired of paying out, and no other one else would insure them unless they changed.

[Curle]

“Why are people so scared to have a jury decide whether a cop’s actions were reasonable?”

Because most people’s starting point for ‘reasonable’ is not a system designed to protect fuck-ups at all cost. The list of events in this encounter even assuming your qualifications is more than enough for average citizens to apply the do stupid things get stupid prizes rule. They really don’t want to see their tax dollars spent (wasted) litigating the interests of the equivalent of the man jumping into the lion’s cage at the zoo. And they really aren’t overly concerned about which drug prompted the behavior.

[Squirrelloid]

You realize it probably costs at least as much to get a QI ruling as it would to not have that and get right to the trial, right?

[Brett Bellmore]

"However, the cop’s description of the shooting claims that it was the last shot that stopped him, not the first."

That could easily be, even if the first shot killed him. A lot of people have the mistaken impression that a mortal wound drops people on the spot. No, unless it's a central nervous system hit, or the person is just so shocked by having been shot they collapse, it doesn't work like that. You could literally shoot somebody right through the heart, and they'd still be capable of fighting on for a significant period of time, and maybe not act any different from a flesh wound for some seconds.

Unless you're in a position where you can safely shoot the aggressor and then retreat to observe the results, you WOULD normally just keep shooting until they dropped, if you actually had an excuse to have shot them in the first place.

[Squirrelloid]

I'm not disagreeing that the cop has a good case all shots were justified. But he should be making that case to a jury.

[Brett Bellmore]

Absolutely agree.

[Noscitur a sociis]

I'm not sure how this is an argument for qualified immunity. Surely your complaint is that the plaintiff's allegations don't show a constitutional violation at all?

[Krayt]

Allegation: Warren County, N.C. couple live in the woods a mile from the nearest paved road, but the tranquility of their rural existence is shattered in 2017 when an ATV racetrack and recreation park opens on their nearest neighbor's property. District court: Ooh, bummer, but since you want to sue the county over the 2011 changes to its noise ordinance that allowed for the racetrack and the statute of limitations is three years, it's too late. Fourth Circuit (unpublished): On the contrary, there was no injury in 2014; the couple's claims didn't accrue until 2017 at the earliest. Case undismissed.

Let's perform a thought experiment. 2014 they file a suit. The same lousy original judge: There is no injury yet, dismissed!

[Davy C]

But how can anyone like him when he has literally the worst take on this case on the entire Internet?

Also, I am of the opinion that any paragraph in a pleading which incorporates itself by reference should result in the entire pleading being thrown out for being infinitely long.