Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Federal officials, dear friends, are generally immune to claims for damages caused by violations of the Constitution. The Supreme Court however has made it clear that “garden-variance” searches-and-seizure cases are subject to liability. So, over at JuristIJers Anya Bidwell (IJers) and Nick Sibilla (Nick Sibilla) explain why the Court should allow review of a pair and ask lower courts to cease to tossing searches-and seizure cases.
- Robert Indiana, a late painter made quite a profit from his painting of “L”OVE”, with letters placed two by two, and the O at an angle. This contractual dispute was with the publisher of “H” similarly-titled.O“PE” was it correct to hold that arbitrators must decide the issue at hand? First Circuit: NOPE.
- American Express is being sued by merchants who refuse to accept American Express. Is this the truth? The allegation? Visa, MasterCard, or Discover have less incentive to charge merchant fees. That means merchants accepting Amex pay higher fees. Second Circuit: People who do not take Amex may be too distant to make it enforceable, if there is a case.
- Allegation: Philadelphia police conspire to fabricate evidence, force witnesses and withhold evidence. Man is sentenced to death for lying about his testimony. Third Circuit: No qualified immunity. Third Circuit: No qualified immunity. The right not being framed is so apparent that detectives had been alerted even when there was no case in fact similar to his. It is unclear whether his suit will be barred since he pled not guilty to the lesser but more serious charges in 2017, in an attempt to get his release. Interlocutory appeals are allowed. You can find more journalism here.
- Maryland man is obsessed with Bill Cosby and rape claims. He has fabricated a document that (imputing tax fraud on one of Cosby’s accusers) was added to the docket in a civil case against Cosby. This resulted in him being convicted of two counts each of making false statements, and sentenced to 32 month imprisonment. Third Circuit. This was a very stupid thing to do. It also wasted lots of people’s time. But it isn’t a crime, unless the “material” element was proved by the gov.t. Set him free.
- Judge Elrod from the Fifth Circuit makes a joke in the footnotes. Because, the SEHOs rightly found out at the DPHs that (1) the ARDC IEPs for K.S. included PLAAFP statements and TEKS goals. . . .”
- It is against the Constitution that someone be put in a freezer cell for more than four hours with no shoes, jackets, or blankets. District court: It could. No qualified immunity. Sixth Circuit federal officer. For violating the Constitution this manner, you cannot sue federal officers. Dissenting: The lawyers for the government repeatedly refrained from making that argument. It shouldn’t be their fault. [For more on federal officer immunity, please do consider giving a listen to this lovingly crafted podcast.]
- A confidential informant has purchased $10 marijuana from a Detroit woman. Police officers of the Major Violators Unit force open the door to the woman as she approaches it. This causes severe facial injuries and requires corrective surgery. Sixth Circuit. Her claims that she didn’t hear officers knocking at her house should not be dismissed. However, the city’s admission at a press conference (after the district court made its ruling) that officers in the Major Violators Unit frequently lied on search warrant affidavits doesn’t mean she can reopen discovery—earlier news reports prior to the ruling indicated substantially the same thing.
- On the basis of the testimony of the victims as well as the pediatrician who examined the children, a man was convicted in 1994 of sexually abusing four of his nieces. Four of the victims have now retracted their accusations, as forensic medical science has advanced and replaced the methods used by the pediatrician. Eighth Circuit: This is not sufficient to reverse a conviction.
- Asylum is sought by Indonesian Christians. Although the Board of Immigration Appeals rejects their request, Ninth Circuit confirms it. They attempt to resubmit their request again, alleging that things are worse at home. BIA denials, Ninth Circuit supports it. Are the charms working third time around? BIA: No. Ninth Circuit: Well, maybe. BIA has not assessed whether the status of their applicants is evangelical Christians who preach the Gospel may be subject to persecution. Contrary: “Follow the law and not follow your heart. . . That is what makes it difficult to judge.
- Public property is governed by the forum one is speaking in. This can be anything from non-public forums with little protection to traditional public forums with high protection. Here, the Tenth Circuit does a 110-page deep dive on the many ways Albuquerque failed to satisfy its burden when it restricted expressive activities on sidewalks and medians—both traditional public forums.
- Beginning in 2019, “United Constitutional Patriots,” set up tents along the U.S.–Mexico border to catch illegal migrants. The group wore camouflage, had firearms on them, approached the people and said “border patrol” before they called the border patrol. The group was convicted one member for impersonating an employee of the government. Tenth Circuit: The conviction was affirmed. However, the conditions for supervised release (including a ban from incurring credit charges and permission for the gov’t search his finances and property) seem a little excessive.
- Face-elbowing non-resisting secure arrestees does the Fourth Amendment clearly establish? Eleventh Circuit: Quite maybe-ly. These claims must be brought against the officer as well as Miami Beach.
- Plowshares members, a Catholic activist and protest group against nuclear weapons, broke into the Naval Submarine Base Kings Bay at St. Marys in Ga. where they engaged in “symbolic disarmament” which involved defacing facilities using spray paint and blood. They raise the Religious Freedom Restoration Act as their defense when they are arrested for a variety of federal offenses. Eleventh Circuit – Arresting vandals and trespassers is the most restrictive way to keep them out of secure military installations.