The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Police baptisms, candy crushing, and reasonable violations of clearly established law.


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

New on the Short Circuit podcast: A sitting senator threatens Amazon with censorship and the case of the abandoned jacket.

  • A pair of vacationers from Memphis run out of money while in Los Angeles and, as one does, steal a car for their return trip. But a chance encounter with police at a Stratford, Tex. gas station leaves one of the men dead, shot from behind while trying to evade the police. His estate sues. Fifth Circuit: You can't really be in reasonable fear of your life when someone is driving away from you, so there's enough here to go to a jury.
  • After the Texas legislature amended its election code in 2021, the United States and others sued, alleging that the changes were racially discriminatory. Those plaintiffs would very much like to compel discovery from members of the legislature, but, as the Fifth Circuit explains, legislative privilege bars the way.
  • Fifth Circuit (Feb.): It is a clearly established constitutional violation to keep an inmate in prison over two years past his release date, but this Louisiana official gets qualified immunity because there is an extra, third inquiry to the qualified immunity analysis that says plaintiffs must show it was "objectively unreasonable" for officials to violate clearly established law. This inmate didn't attempt such a showing, so he forfeited the issue. Fifth Circuit (this week, after receiving notice that a cert petition is in the works): Well, maybe that third inquiry is really just part of the second inquiry. And, ok, the inmate didn't forfeit the issue, but he still failed to show that the official's violation of clearly established law was objectively unreasonable.
  • Hamilton County, Tenn. sheriff's deputy stops a woman and finds her in possession of marijuana. He tells her that if she lets him baptize her, he won't take her to jail. He also calls a fellow officer, who came to film it without learning of the quid pro quo. Sixth Circuit (unpublished): Qualified immunity for the filming officer. (The claims against the baptizing officer continue.)
  • Allegation: Rutherford County, Tenn. sheriff gives the go-ahead for Operation Candy Crush—in which deputies raided vape shops, seized their inventory, and arrested their owners—despite knowing that the CBD products the shops sold were legal under both state and federal law. District court: Yeah, but he wasn't, like, personally involved in the investigation or raid. Sixth Circuit: "Section 1983 civil conspiracy claims do not contain a 'personal involvement' requirement." The case goes to trial.
  • In 2015, the superintendent of the Cook County, Ill. Juvenile Temporary Detention Center allowed the facility to be used for several days for filming scenes for the TV series Empire. Detainees file a putative class action against, inter alios, the superintendent, alleging that security and scheduling restrictions had been unusually severe on the filming days. Does the superintendent enjoy sovereign immunity for the detainees' state-law claims? Seventh Circuit: Yes.
  • Federal prosecutors in Arizona charge 19 alleged gang members with running a crack house network and doing the RICO. Defendants: Whoa, one of the prosecutors is into some shady stuff. District court: That does look shady. And because other prosecutors probably know about it, I'm gonna disqualify all of the 180 prosecutors from that office from this case. Ninth Circuit: As there's no evidence the whole office is out of order, all you get to do is disqualify the one prosecutor.
  • Does the Heck bar (which bars a Section 1983 claim relating to a conviction when judgment for the plaintiff would contradict the existing conviction) apply once a defendant is no longer in custody on his criminal conviction? Though the question divides the circuits, the Eleventh Circuit sidesteps it while authorizing a man's excessive-force claim to go forward against Florida corrections officers who pepper sprayed him after he (allegedly) tampered with the sprinkler in his cell. There's also a thoughtful, semantic (the majority's descriptor, with which your editor agrees) concurrence.
  • Convicted serial killer Lyndon Pace—who was sentenced to death after being convicted in 1996 of raping and murdering four women in the Atlanta area in the late 1980s—appeals from a habeas denial, raising multiple arguments that his rights were violated during the sentencing phase of his trial. The Eleventh Circuit spends 107 (unpublished) pages rejecting his appeal, but the real action is Judge Rosenbaum's three-page concurrence in which she "underscore[s] [her] disgust at how outrageous the prosecution's conduct in closing argument was" and calls on states to rein in prosecutorial misconduct "in real time."
  • After a Louisiana prosecutor tells a judge that the underage victim of a sex crime does not want the perpetrator to go to jail, the judge sentences the perp to probation. Yikes! In fact, she did want him to go to jail, and the judge says he would have sent him to jail but for the prosecutor's alleged misrepresentations. Can the victim sue the prosecutor? Louisiana Supreme Court: The legislature may have passed a statute denying immunity to officials accused of intentional or outrageous misconduct, but that does not override the doctrine of absolute prosecutorial immunity. (H/t: Matthew Segal.)
  • And in amicus brief news, IJ is asking the Tenth Circuit to join the correct and virtuous side of a developing circuit split on whether federal officials can be held liable for violating the Fourth Amendment over their use of excessive force. The case involves Deputy U.S. Marshals who snuck up on a suspect as he was fixing his friend's generator, kicked him in the head, and took turns stomping on him while he was unconscious. (We're on the side that thinks the Constitution provides a remedy against this sort of thing.)

Friends, Humboldt County, Calif. code enforcement officials have a nasty habit of levying hundreds of thousands of dollars in fines against property owners for things they did not do or that a prior owner did. Then, when owners contest the fines, the county refuses to schedule hearings. Many of IJ's clients have been waiting years for a hearing. Unfortunately, this week a federal magistrate dismissed the case, ruling that the outlandish fines were merely hardball negotiating tactics meant to "coerce" people into signing settlement agreements and that the plaintiffs, who've had the threat of $10,000 per day fines hanging over their heads for years, haven't been harmed. We will appeal. Click here to learn more.