Short Circuit: A Roundup of Recent Federal Court Decisions

A grizzly murder, double jeopardy, and public magistrations.

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

This week, the DOJ announced that the DEA will cease its "cold consent encounters" at airports, during which agents demand to search people's bags while telling them things like, "I don't need your consent." The suspension coincides with an inspector general report condemning the practice. "We welcome DOJ's suspension of this program as a first step," says IJ Senior Attorney Dan Alban, "but policy directives can be changed at any time, under this or future administrations. We call on Congress to pass the FAIR Act to permanently reform federal civil forfeiture laws." In the meantime, IJ is currently suing the DEA and TSA over their airport seizure and forfeiture practices.

New on the Short Circuit podcast: Wisconsin appellate attorney Joseph Diedrich explains the ins-and-outs of the Rooker-Feldman doctrine amidst a most Seventh-Circuity Seventh Circuit en banc decision.

1. In ordinary circumstances, we would assume this First Circuit opinion's description of the Lizzie Borden story as "grizzly" was just a typo. But since this is a Judge Selya opinion, we expect it was instead a deliberate word choice meant to convey that the age-old story has gone a bit gray. (Bonus vocabulary words include "pellucid," "exigible," and "rescript.")
2. Caldwell County, Tex. has a policy of categorically excluding the press and the public from observing criminal pretrial proceedings commonly referred to as magistrations, at which the accused is informed of the charges against him and the rights to which he is entitled. Does this violate the First Amendment right of access to judicial proceedings? Fifth Circuit: Applying the "experience and logic" test, it sure seems to. Preliminary injunction affirmed.
3. Texan meth and fentanyl importer pleads guilty in 2022 and receives a "career-offender enhancement" at sentencing. He objects because his prior marijuana convictions wouldn't have been "controlled substance offenses" after 2018 reforms. Fifth Circuit: We agree, and thus also agree with three other circuits.
4. We won't go too deep into this half-decade, four-Fifth-Circuit-opinion death march of a lawsuit over whether the City of Jackson or the State of Mississippi gets to control the governance of the Jackson-Medgar Wiley Evers International Airport. But we do wonder whether the Article III standing issue that finally put the kibosh on the case this past week could quite easily have been addressed in the first appeal—five years ago—with a little assist from 28 U.S.C. § 1653. If that piques your interest, we won't deprive you of the joy of going down that rabbit hole yourself. If it doesn't, well, just keep swimming.
5. Ohio woman seeks approval to collect signatures for a ballot proposal to amend the Ohio Constitution to eliminate gov't immunities in certain state-law causes of action. The Ohio Attorney general refuses—eight times—to approve the summary of the proposal on the grounds that it is not "fair and truthful." So the woman turns to federal court. The district court denies a motion for preliminary injunction, the Sixth Circuit reverses, and then the en banc Sixth Circuit grants rehearing, vacating the panel ruling. Sixth Circuit (en banc): And now all that work is wasted because the election has passed and the request for a preliminary injunction is moot. But the case can move forward on the merits. Dissent: That's silly; we can grant an injunction for the next election.
6. Ohio prison guard is fired, and her union refuses to seek arbitration on her behalf. So you know she must have done something pretty, pretty terrible. Sixth Circuit (unpublished): Yup.
7. What do you get when you combine a routine traffic stop with the driver's criminal history, several air fresheners in the car, driving from a job interview, and the driver's movements while looking for proof of insurance? Knoxville, Tenn. drug interdiction officer: Reasonable suspicion of drugs that justifies prolonging the stop to request a drug dog? (Which reveals an illegal gun but no drugs.) Sixth Circuit: No! And no good-faith exception. Evidence of the illegal gun should have been suppressed. Reversed and remanded.
8. An indigent criminal defendant has a right to a public defender for many aspects of the criminal process, but not necessarily for all aspects. For example, what about an appeal of a denial of the reduction of a sentence based on certain retroactive amendments to the U.S. Sentencing Guidelines? Seventh Circuit Judge #1: Is this an advisory opinion? Judge #2: I think we can appoint one, I mean we've done it before. Judge #3: The text says no.
9. Allegation: Missouri inmate fills out form saying he feels threatened by another inmate, which means he's not supposed to be left alone with that inmate. Nevertheless, a week later, a guard puts that inmate in a cell with him while he's sleeping. The inmate attacks him. Can he sue the guard under state law? District court: Quite possibly. Eighth Circuit: Reversed. The guard enjoys official immunity, and while he may have had a duty to check those forms that doesn't mean he had a duty to do it.
10. Minnesota landlord can't evict terrible tenants during the COVID-19 pandemic due to a moratorium, so he sues the responsible state officials with various constitutional claims. The district court dismisses them all. Eighth Circuit (2022): Actually, you've pled Contract Clause and Takings Clause claims! Here's some careful analysis with lots of citations. Good luck on remand! District court: I'll allow another motion to throw out the claims, and this time you lose on Eleventh Amendment immunity. Eighth Circuit (2024) (unpublished): Affirmed.
11. Detainee at Davis County, Utah jail is withdrawing from meth, falls from top bunk. A nurse wheelchairs her to another cell and leaves her there unmonitored without checking her vitals. She has another fall and ruptures her spleen. She dies. Turns out the jail has no protocols or training for nurses—for anything. Tenth Circuit: No need to disturb the jury's $3.85 mil verdict against the county for violating the U.S. Constitution nor its additional $3.85 mil and $2 mil verdicts for violating the Utah Constitution.
12. Thirteen-year-old boy picks up a neighbor's ball that's in a ditch across the street from her house and plays with it; she angrily demands it back. He curses at her, flips her off, and flips the ball to her. The neighbor calls the police. A Martin County, Fla. officer finds the boy nearby. The boy declines to give his name or remove his hand from a pocket. (Turns out he has a pocketknife.) The officer tries to handcuff him, but he pulls away. The officer (250 lbs.) picks him (120 lbs.) up and body slams him, fracturing his skull, shoulder blade, collar bone, and ribs, and also causing permanent brain injury. Officers then ask an underage witness to lie and say the teen was menacing the officer with the knife. (The teen is prosecuted but acquitted.) Teen: It's clearly established that you don't body slam a suspected nonviolent misdemeanant in these circumstances. Eleventh Circuit (unpublished): Qualified immunity.
13. And in state supreme court news, Oregon considers whether there is a double-jeopardy problem if prosecutors convict a woman of a crime and obtain a $50k criminal forfeiture from her, and then file a civil-forfeiture suit to try to take her house, too, based on the same underlying crime. Oregon Court of Appeals: Yes, especially because Oregon has reformed its civil-forfeiture laws to generally require a conviction, making clear that civil forfeiture here is punitive. Oregon Supreme Court: Wrong, that double-dipping is totally fine. (IJ wrote an amicus brief urging a different course.)

New case! After two Escambia County, Ala. school board members criticized the superintendent, the district attorney and county sheriff (political allies of the superintendent) retaliated, seizing their phones and opening a bogus investigation. And then, after a local journalist wrote about the investigation, the sheriff and DA arrested four innocent people (the two board members, the journalist, and the school board's bookkeeper) on bogus felony charges. (The charges were immediately dropped with prejudice after the DA admitted he had personal and professional conflicts and turned the case over to the state.) This is unconstitutional, and we look forward to punching back (against prosecutorial immunity, qualified immunity, and municipal immunity). Click here to learn more.

Comments

[Absaroka]

The opening paragraph discusses this case, involving the DEA doing warrantless searches at airports: "The passenger, identified only as David C., had already passed through a Transportation Security Administration (TSA) checkpoint and was boarding his flight when he was approached by a DEA officer who demanded to search his carry-on. When David refused to give permission, the agent declared he was detaining the carry-on bag, and David could either board his flight or consent to a search."

Would any of the resident lawyers like to opine on the 'you can go but your bag(/car/dog/wallet/bag of groceries/property in general) can't'. From a legal POV, what happens if Mr. C said 'Since you said I'm free to go, so I am' and walks off bag in hand?

For example, I'm on a deserted highway during a blizzard, and a trooper says 'you can go, but your car, parka, and mittens stay here unless you consent to a search', or 'you can go, but your phone and laptop can't'.

(to be clear, I get that there may be immediate practical downsides like getting tackled or shot or whatever ... but I'm interested in the legal angles)

[Noscitur a sociis]

I’m not entirely sure what you’re asking. The Fourth Amendment regulates the seizure of both “persons” and their “effects”: a law enforcement needs a legal justification to seize either.

[Absaroka]

So, generally, you have to obey lawful commands from the police: if the officer says ‘move your car out of the way of the ambulance’, you need to obey that command or you are committing a crime and can go to jail, and be convicted. At least that’s my IANAL understanding.

So suppose Mr. C walks off bag in hand, contrary to the DEA agent’s orders. Can he be convicted of any kind of ‘failure to obey’ crime? Or if the agent tries that, does Mr. C prevail with a ‘it wasn’t a lawful command, because 4A’ defense?

And one could hope the agent is denied QI in the subsequent wrongful arrest suit?

[TwelveInchPianist]

Unsurprisingly, there's a buttload of conflicting caselaw about what constitutes a seizure of baggage at an airport. The pig in this case is almost certainly entitled to QI.

[jenyliza762]

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[Lennyk78]

Searches of bags should be for anything dangerous for the flight, only. If they're searching for contraband unrelated to the safety of the flight, they should need probable cause.

[John F. Carr]

(5th circuit pretrial case)

Massachusetts has some closed court hearings. The Boston Globe has tried and failed to have "show cause" hearings opened to the public. These are preliminary hearings to determine if charges should be accepted. The defendant can drop names to get out of trouble. Or the judge can say "she had it coming" or "just pay for the merchandise and it's all good." Traffic court magistrates, I am told, prefer to hold court in private rather than in public. The state Supreme Court ruled long ago that defendants can not appeal from violations of rights in a traffic court hearing with a magistrate. The only recourse is to request a de novo hearing with a judge.

[Dr. Ed 2]

Oh, and you have to pay $25 for the clerk magistrate hearing and $100 to see the judge, so much for the provision in the state constitution that justice should be free.

Thank you Mitt Romney, and they wonder why I am no longer a Republican...

[John F. Carr]

A federal judge ruled that the fee had to be refunded if the driver beat the ticket. I knew somebody who asked to have the fee waived because he was indigent – recently out of school and not yet employed.

[John F. Carr]

The case in the afterword reminds me of the lawsuit by a Texas woman who was charged with murder for having an abortion. Under state law a woman does not commit murder when she kills her own fetus. The indictment was invalid on its face and was promptly dismissed. I predict the Texas prosecutor will get absolute immunity because it does not appear he lied to the grand jury about the facts. Maybe about the law.

[SRG2]

A new law: “it shall be an absolute defence to a charge of assault with a baseball bat that the victim severely wronged the accused and current immunity jurisprudence denied the accused the justice they sought”. #9 and #12…and perhaps your Texas prosecutor

[Bill Poser]

In the Florida case, since flipping your neighbor the bird is not a crime, the police officer lacked a lawful basis for questioning or detaining the boy. He was therefore acting outside the scope of his authority as a police officer and should be prosecuted for assault and battery. And for asking a witness to lie, he should be prosecuted for obstruction.

[loki13]

Reading the synopsis of that case made me sad. Because it's all too typical.

As for punishing an LEO for lying? You're kidding, right?

You know the joke...

Q. How do you know a police officer is lying?

A. He's been sworn in, is in the witness stand, and his lips are moving.

Ugh. I kid, kinda. Not all LEO are bad- far from it. But there is some serious rot, and the good ones protect the bad ones.

(Which makes me wonder how good they are, but that's a different issue.)

[David Nieporent]

Ugh. I kid, kinda. Not all LEO are bad- far from it. But there is some serious rot, and the good ones protect the bad ones.

You know what they say: it's the 95% of cops who are bad who make the other 5% look bad.

[John F. Carr]

Today the First Circuit published a correction to the Lizzie Borden case:

On page 2, line 10, replace "grizzly" with "grisly".

[Noscitur a sociis]

Judge Selya, what’s your username here?

[GKHoff]

Buya R, Selya

[Dr. Ed 2]

People forget that Lizzie Borden's New Bedford wasn't the rough fishing community of today. Like most American cities in the era before the automobile, New Bedford circa 1892 had it's "nice" neighborhoods where the mill owners lived -- back when the mills were profitable.

[Dr. Ed 2]

"Ohio prison guard is fired, and her union refuses to seek arbitration on her behalf."

I have a problem with this -- if the union acquires the exclusive right to speak for the employee, it ought to be obligated to do so regardless of its (union's) opinion of the merits of the employee's claim.

Remember that this was pre-Janus where she had no option but to pay the union to represent her, so why wouldn't it have fiducary duty to do so?

[Noscitur a sociis]

Remember that this was pre-Janus where she had no option but to pay the union to represent her

I am legitimately fascinated by how your mind works. Janus was decided in June 2018; the conduct at issue in this case started in 2019.

If you could walk me through the chain of events that led you to write that, I’d be much obliged.

[Dr. Ed 2]

As I understand it, it took a year to exercise Janus rights -- AFTER the respective public sector union realized that it had to comply with it.

Do you have evidence that her union was fully compliant with Janus in 2009? It's possible, but...

[KBeckman]

Did you discount the possibility her actions could have voided any obligations the union may have had to defend her? I'm fairly certain most unions do have some rules of conduct members have to abide by.

[Lennyk78]

The problem in number 12 is not the decision. The panel did what SCOTUS told them to do. It's the SCOTUS QI jurisprudence that needs to go.

[Lennyk78]

The 11th Amendment plainly does not apply when a resident of a state sues his own state, and any case law to the contrary is a fiction.

[momo]

Oregon, Yamhill county

DA Brad Berry has had numerous run-ins with the “the law” and his over-zealos prosecution.
1. He got a grandfather convicted to child molestation, which the Court of Appeals later basically said he framed the grandfather of.
2. He tried to convict 2 8th grade boys of sex assault for playing grab a** at school, while letting the 2 girls that also played it off (they grabbed too). Withdrawling the case only after a huge public uproar.
3. Not content with this he (or his puppets) filed ethics complaints against the boys’ defense attorney. While the Bar refused to cite the defense attorney for the complaint, they did suspend him for … filing this income taxes late. He paid the taxes well before this, and filed them late because his mother & accountant had cancer, but still suspended hm.
4. He investigated a city counselor that fired a policeman, for various reasons. Once the policeman was re-instated that investigation against the city counsel was dropped.
5. and now he is back for this double jeopardy thing.

Keep in mind all but 1 (last I counted) judges in Yamhill used to work for him.

I encourage you to read about him yourself, lest my memory be faulty.

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

I know the mother of one of the boys he went after for slap ass. The public uproar was well warranted, the whole thing was one civil rights violation after another.

[KenveeB]

I disagree with #3. If you violated a law, you violated a law, even if years later they decide to make that conduct not a law. The legislature is free to absolve everyone who committed that crime in the past when they change the law if they think it's a terrible thing that never should've been against the law in the first place. Otherwise, what happens to the law in the future doesn't have any impact on the law *you* violated.