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 Sixth Circuit (unpublished): Qualified immunity for the filming officer.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.

Comments

[SomeGuy 2]

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."

Geez. I was expecting some misconduct, but she highlights two examples: Prosecutor pointed out that if the defendant is into sodomy, then prison isn't as much of a punishment. This is obviously correct, for those interested in sex with men, being locked up with men presents plenty of opportunities. She's also outraged that the prosecutor pointed out the lives of the people murdered by the defendant matter and they should give the death sentence to reflect this. And... that's it. If this counts as "misconduct," then prosecutors must be exceptionally well behaved. Those are both obvious points the jury should properly consider when deciding between life in prison and death.

It's at worst harmless error, the death penalty is amply justified by the facts. The punchline, of course, is that the verdict was issued in 1996 and it's highly unlikely that he'll ever actually be executed, so it hardly matters if anything in the penalty phase was improper, he's really getting life in prison either way. So he'll still end up escaping justice by running out the clock, having all the sodomy he likes on the taxpayer dime and dying of old age.

[Bob from Ohio]

"lives of the people murdered by the defendant matter"

I bet she has/had a Black Lives Matter sign in her yard.

"raped and strangled to death four women, three of whom were more than seventy-eight years old. "

That doesn't bother her though.

[Noscitur a sociis]

She’s also outraged that the prosecutor pointed out the lives of the people murdered by the defendant matter and they should give the death sentence to reflect this.

That is not, in fact, what the prosecutor said.

It’s at worst harmless error, the death penalty is amply justified by the facts.

Did Judge Rosenbaum suggest otherwise?

[Gandydancer]

Judge Rosenbaum wrote: "...the prosecutor also told the jury to sentence Pace to death because if it did not, it would be 'saying that these victims’ lives didn’t matter.'”

SomeGuy 2: "She’s also outraged that the prosecutor pointed out the lives of the people murdered by the defendant matter and they should give the death sentence to reflect this."

You: "That is not, in fact, what the prosecutor said."

Pretty damn close. Why did you assert that it was different but not quote it. Thinking we might not agree with you?

[bernard11]

Prosecutor pointed out that if the defendant is into sodomy, then prison isn’t as much of a punishment.

I suppose you could stand on your head and defend this as meaning it’s only, say, 98% as bad as if you aren’t.

But what the prosecutor actually said was:

“if anal sodomy is your thing, prison isn’t a bad place to be.”

Which is utterly outrageous. The notion that the opportunities for sex are so wonderful as to compensate for all the privations of prison is insane.

I wonder how the male prosecutor would feel about being locked up for many years in a women’s prison.

[Commenter_XY]

I wonder how the male prosecutor would feel about being locked up for many years in a women’s prison.

Satiated, after a time.

[Rev. Arthur L. Kirkland]

Not necessarily if he were just another closeted Republican.

[Davedave]

"The notion that the opportunities for sex are so wonderful as to compensate for all the privations of prison is insane."

It's not like there's no gay sex _outside_ prisons. (Not, like, right outside. At least find some bushes or something.)

[Religion and Politics, my life]

But the argument defeats itself no matter what.

Even a lustful pig does not find everyone attractive and finds many disgusting.

In a prison the perversity goes to the lowest level and no other.

[Mr. Bumble]

When is Congress going to get of its ass and rein in qualified and prosecutorial immunity? The courts are all over the place with this.

[Brett Bellmore]

When they don't anticipate people following their own orders needing it?

[mse326]

If you ask the Louisiana Supreme Court it doesn't matter

[Bored Lawyer]

Not exactly. They did not hold the Legislature could not override the immunity, just that it didn't. Mainly because the statutory override was some 20 years prior to the adoption of prosecutorial immunity by the Court. So it's more a matter of interpretation than legislative power.

[mse326]

I read their argument. It basically boiled down to we ignored the first time, so we will continue to

[Bored Lawyer]

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."

Since a remedy for misconduct is rare, it will continue. When prosecutors can get away with it, some of them will.

[Noscitur a sociis]

Judge Rosenbaum notes that

Referring offending prosecutors to the relevant Bar is a meaningless gesture because, given that the professional misconduct in these cases generally has occurred decades earlier, the Bar cannot or will not discipline the attorneys. Similarly, by the time we get the case, the offending prosecutor has often left the prosecuting office, and the responsible supervising attorney is likewise gone from the office, so the prosecuting authority cannot take action against the prosecutor or her supervisor.

Here, however, it appears that the prosecutor currently does work for the same district attorney's office:

https://www.fultoncountyga.gov/inside-fulton-county/fulton-county-departments/district-attorney/da-executive-team/case-intake-division/john-m-turner

[Noscitur a sociis]

Although he also appears to have had some legal issues of his own:

https://www.news-daily.com/news/former-prosecutor-in-court-on-gun-charge/article_bafc7586-da8e-5322-bd8a-74c8e1844214.html

[David Nieporent]

I feel like these are bad statements by Rosenbaum because they pretend that the passage of time is a reason rather than an excuse. If it were to come before the bar or the prosecutor's supervisors the day after it happened, they still wouldn't discipline the prosecutor. Because FYTW.

[not guilty]

The sheriff's deputy who conducted the impromptu baptism was indicted on 44 counts of criminal conduct for that incident and other allegations of misconduct while on duty. The prosecution case file disappeared under unexplained circumstances, and the indictment was dismissed last week on motion of the prosecutor pro tem. https://www.chattanoogan.com/2023/5/12/468916/All-44-Criminal-Charges-Dismissed.aspx

[Commenter_XY]

Wait...exactly how does that happen, not guilty? = The prosecution case file disappeared under unexplained circumstances...

Did you ever see that kind of thing in 28 years as a criminal defense attorney? Just curious.

[Gandydancer]

Unexplained disappearing evidence happened in the case that came before SCOTUS this term of the guy twice condemned to death for soliciting murder of a motel owner. (Some was ordered destroyed after the first conviction, without good explanation for that, but some just disappeared.) I'd guess it happens all the time.

[not guilty]

I am aware of some evidence disappearing, but not a complete prosecution case file.

[A nerdy Fred]

Shooting a fleeing suspect was against settled law decades ago.

https://supreme.justia.com/cases/federal/us/471/1/

[Gandydancer]

Garner was in '85, but shooting fleeing suspects seems to be routinely allowed. It was just within the last year that the 5th Circuit said that shooting a TX guy who had driven into a ditch, then was shot when driving away between the cop car and the verge of the road (the shooting cop was on the other side of his car and in no danger) was perfectly OK, I forget why (though I did look at the video). And another case that springs to mind is when (back around the time of the Michael Brown shooting?) two murderers escaped prison in NY. They were shot down while fleeing unarmed on foot, killing one. I remember wondering why Garner didn't apply.

[JonFrum]

"sentenced to death after being convicted in 1996 of raping and murdering four women"

Imagine your boss told you to do something, and 25 years later, it still wasn't done. For Christ sake, he wasn't sentenced to death by natural causes.

[Rev. Arthur L. Kirkland]

The three judges who blessed the police baptism defendant were Republicans, in a circuit consisting of four states, not one of which is in the top half of the United States with respect to educational attainment (undergraduate degrees or advanced degrees).

Carry on, clingers. So far as better Americans -- and your profound inadequacies -- permit.

[Religion and Politics, my life]

That is false of course.
And you remind me of George Bush , who said he wanted to improve IQ so that everyone is over 100. Really you do. In the best country in the world there must always mathematically be a top half and bottom half but that has absolutely no translation into an absolute value. In a nation of giants you would call a 6foot 5 person bottom half and the world would laugh at you.

[Davedave]

"must always mathematically be a top half and bottom half but that has absolutely no translation into an absolute value"

Drivel. The mean is not the median or the mode. The mean number of fingers is below 10. Almost everyone has above the mean number of fingers.

[Bored Lawyer]

“who blessed the police baptism”

They did no such thing. You are a bald-faced liar. Typical arrogant leftist.

From the opinion:

On a winter night in 2019, Hamilton County Sheriff’s Deputy
Jacob Goforth received an unusual phone call from fellow on-duty officer, Daniel Wilkey. Wilkey, whom Goforth knew to be a preacher outside of work, asked Goforth to witness a baptism at a nearby lake. Although surprised, Goforth agreed, assuming that Wilkey was baptizing someone he knew from church. He wasn’t. Unbeknownst to Goforth, Wilkey had stopped Shandle Riley earlier that evening and found her in possession of marijuana. Wilkey told Riley that if she agreed to let him baptize her, he would issue her a citation and not take her to jail. She agreed and followed Wilkey in her car to a nearby lake. When Goforth arrived, he saw what appeared to be a consensual, if improper, situation. Wilkey proceeded to baptize Riley, while Goforth filmed on his cellphone. Critically, however, Goforth never learned of Wilkey’s improper quid pro quo.

. . .
Riley does not contend that Goforth personally violated her constitutional rights. Instead, she seeks to hold Goforth liable for failing to intervene in two alleged constitutional violations committed by Wilkey—an unlawful seizure in violation of the Fourth Amendment and a coerced baptism in violation of the First Amendment’s Establishment Clause. Successful failure-to-intervene claims are rare and largely limited to one context—the use of excessive force.

Even apart from QI, the second cop did nothing wrong. Anyone who thinks he (as opposed to the first cop) should be held liable is either a moron or a political hack.

[David Nieporent]

Even apart from QI, the second cop did nothing wrong. Anyone who thinks he (as opposed to the first cop) should be held liable is either a moron or a political hack.

He may not have violated her constitutional rights if he didn't know the details, but he obviously did something wrong. Government employees performing and witnessing baptisms while on the clock is… not allowed.

[Bored Lawyer]

Not completely clear he was "on the clock." In any case, even if he was, that's not her issue, its the Police Dept.'s issue. It's not a violation of her civil rights.

[Religion and Politics, my life]

You give yourself away. If you don't believe in Baptism it can only be 'someone poured water over me" -- You can't claim it is real and then argue that it isn't.
And the argument would more likely be made by liberals if you think about it.
And I don't see any connection to a Free Exercise issue. If the plaintiff complained only that someone poured water on them they would mocked into silence.

[Bored Lawyer]

Nothing like condemning a hypothetical decision of the Court.

[Bored Lawyer]

The Complaint here is that the cop used his authority to force her to perform a religious ritual. Not to mention drive out of her way to lake in the middle of the winter and dunk in ice-cold water. That is enough for this cop to be severely punished, religion or no religion.

[Gandydancer]

It's hard for me to imagine why the prosecutor would want to say that, but since he was asking for the death penalty it's hard not to surmise that Rosenbaum was leaving out some context.

[David Nieporent]

Why is it hard for you to imagine why the prosecutor would want to say that? It's precisely because he was asking for the death penalty. "You should sentence this guy to death; he's a sexual deviant, so putting him in prison is practically like a favor to him. He'd get to have all the anal sex he wanted."