Short Circuit: A Roundup of Recent Federal Court Decisions

Drone speech, roofer speech, and quasi-judicial speech.

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

In Texas, Louisiana, and Mississippi, public school employees who use unconstitutional violence against students—and those who ignore such violence—enjoy complete immunity from Section 1983 claims. That is bananas, and this week we asked the Supreme Court to put a stop to it (and also to resolve a split between nine other circuits on how such claims should be handled). Click here to learn more.

• Witnesses testifying in court have long been shielded by absolute, quasi-judicial immunity from defamation claims. But what about a witness testifying at a campus sexual misconduct proceeding? Connecticut Supreme Court: Without an oath requirement, cross-examination, or, among other things, an adequate record for appeal, Yale University's proceedings weren't quasi-judicial enough. No absolute immunity. Second Circuit: And no qualified immunity for now, either.
• Under New Jersey law, a non-custodial parent's child-support obligation generally ends when the child turns 19. But if the kid goes to college, a court can order the non-custodial parent to continue support through age 23. Aggrieved dad sues, arguing that it is unconstitutional to require him to pay extended support when a still-married parent could throw the kid out on her ear the moment she turned 19. Third Circuit (unpublished): The state says children with divorced parents have a harder time affording college, and the state can rationally try to remedy that.
• Louisiana man serving 71-year sentence for manslaughter and aggravated attempted rape is up for a parole hearing in November 2016. The parole board votes to grant him parole, with a scheduled release date the following April. Following much negative press, the board then changes its mind and rescinds the parole days before the effective date, citing "technical irregularities" that appear not to have existed and that would not have justified parole rescission anyway. Fifth Circuit: Based on the parole statute in effect in Louisiana at the time, the man had a liberty interest protecting his parole grant from rescission, and there was indeed no permissible reason to rescind his parole. Let him out. (More details, for those interested, are available here.)
• Texas prohibits flying drones over various buildings (like prisons and sports venues) and using drones to "capture an image" of people or things on private (but not public) property. Journalists: Which facially violates our First Amendment right to report news. Fifth Circuit: Nope. The no-fly restriction doesn't regulate speech at all. And the image-capturing restriction doesn't regulate speech for its content, so intermediate scrutiny applies—and is satisfied here because "drones have singular potential to … invade the privacy rights of others." (Nor do FAA regulations preempt this sort of thing.)
• Fowlerville, Mich. police officer pulls over Japanese citizen (in the United States on a valid work visa) and royally screws up the sobriety tests that ensue. Most notably, she read the breathalyzer as showing an alcohol content of 0.22 (high!) when it actually reported 0.02 (low!). All charges are ultimately dismissed. Man: The officer's screw-up led to my visa's being revoked and my being deported to Japan, and it took months to sort things out. Officer: Qualified immunity? District court: No. Sixth Circuit: Not a chance. To trial the case must go.
• MD-Ph.D. student strikes up an online conversation with a girl who looks to be in her late teens or early twenties but claims to be 15. After some gross and also suspicious conversation, he invites her over for sex. Friends, you will never guess what happens next. She's a police officer! He's charged with soliciting a minor and sending lewd pictures. After seven months of motions practice, prosecutors add a charge for attempted production of child pornography, increasing his mandatory minimum from five to 15 years, which he is duly sentenced to following his conviction. Sixth Circuit: And he gets a new trial. There's a good chance prosecutors added the extra charge to punish the defendant for trying to suppress statements he made to police after he had invoked his right to counsel (and those statements should have been suppressed).
• Not being wheelchair-ramp experts, we're unsure how much exactly it would cost the federal gov't to install a ramp at the U.S. Post Office in Shelbyville, Ind. But (we'd hazard) it's probably less than the combined resources spent (a) by the DOJ in defending against a wheelchair-bound Hoosier's Rehabilitation Act lawsuit for the past three-and-a-half years, (b) by the U.S. District Court for the Southern District of Indiana in adjudicating and granting the government's summary judgment motion in said lawsuit, and (c) by the Seventh Circuit in vacating that judgment and remanding for further proceedings. Especially since the City of Shelbyville itself offered to pay for the post office to build the ramp—an offer the USPS declined. Anyway, the case is now going back to the district court for some more litigation on whether building that ramp would be a reasonable accommodation. Concurrence: "It's 2023, for heaven's sake. … One would be hard pressed to find any institution other than the Postal Service that would even dare make the arguments the defense has made in this case."
• If you successfully sue state government officials for violating the Constitution, you can usually get attorneys' fees. But if you want to get fees from the feds, you have to prove that their litigating position was not "substantially justified," which can be pretty tough. Case in point: The Ninth Circuit holds that the Department of Labor was substantially justified in going after a company for unlawfully inflating its value, even though the government's case fell apart when its only evidence—an expert's report—was excluded for having "significantly and unreasonably" undervalued the company. The dissent would have granted fees, arguing that if there's no evidence to support the feds' position, it can't be substantially justified.
• During the pandemic, both Washington State and the city of Seattle imposed moratoria restricting landlords' ability to evict tenants. Was this a physical invasion of the landlords' property in violation of the Takings Clause? Ninth Circuit (unpublished): 'Twasn't.
• Word to the unwise: If you're ever drunk and feel tempted to get in cops' faces ("What are you going to do, tase me? F—n' a—e."), officers can quite reasonably take you to ground and briefly deliver a few strikes until you're cuffed. Per the Tenth Circuit (unpublished), any skull fractures and permanent vision impairment you may suffer are on you.
• Wyoming man wants to hand out campaign literature at polling places, but state law bans him from doing so, or even displaying a bumper sticker on his car, within 300 feet of an election-day polling place or 100 feet of an absentee polling place during the 45 days before an election. The trial court strikes down the 300-foot election-day buffer, but upholds the absentee buffer zone. Tenth Circuit: Strike that, reverse it. The 300-foot election-day buffer is fine, but the 100-foot, 45-day absentee buffer just might be unconstitutional.
• Rogers County, Okla. sheriff deputy serving a protective order to take two children into custody shoots, kills the children's father. The deputy claims that the man became aggressive and violent and that he, fearing for his life, shot the man. The man's sister and mother were also at the home, but their accounts paint the deputy as the aggressor, punching and shooting a cussing but compliant man. Experts disagree about which story the evidence supports. District court: No constitutional violation here, so qualified immunity. Tenth Circuit (unpublished): A reasonable jury could find that the deputy used excessive force. Back down the case goes.
• The city of Doral, Fla. contracted to buy property for $10.75 mil. Property owners: before closing, the private contractors started using our land, contaminating the soil to the tune of needing a $2.8 mil remediation. The City Manager approved the use, so the City is liable for our Fifth Amendment and Fourth Amendment claims. Eleventh Circuit (unpublished): Might well be. The claims may proceed. Dissent: The city council would've needed to sign off on the use for the City to be liable, and there's no allegation that it did.
• Following a move to a new school district, Georgia single mom gives her 17-year-old son a choice: attend school in the new school district and ride the bus, or keep going to the same school (and either walk several miles home or hang out at school or the park until mom can pick him up). The son opts to stay in his old school. When the school's resource officer finds out, she has mom arrested for first- and-second-degree child cruelty. Mom spends four days in jail before posting bond. All charges are eventually dropped and mom sues the resource officer for malicious prosecution. Eleventh Circuit: And her case can go forward. We give cops a lot of leeway, but "even the most officer-protective doctrines have their limits."
• And in amicus appearance news, this week IJ urged the Texas Supreme Court to hold the state to its burden under the First Amendment: If it wants to make it illegal for roofers to talk to their clients' insurance companies (without first obtaining a public insurance adjusting license), the state must put forth evidence that the restriction actually protects the public in some way. (The gov't, meanwhile, said that it could require journalists to be licensed without triggering the First Amendment at all, an assertion quickly walked back after the Justices' jaws dropped in unison. Video here.)

Last year, DeKalb County, Ga. officials passed a measure requiring all gas stations and convenience stores to install security cameras on pain of losing their business license, fines, and jail time. Footage must be made available to police without a warrant. Cameras must meet certain resolution requirements, have night vision, and surveil a range of specific places (like points of entry, exit, and sale). This week, IJ urged officials to repeal the law. Click here to learn more.