Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Ray Lamb, DHS agent, pointed a gun at Kevin Byrd’s head in 2019 and pulled the trigger. It jammed. Agent Lamb took his badge and got police to arrest Byrd even though Byrd hadn’t committed any crimes. The Fifth Circuit ruled that federal law enforcement officers can be sued by victims who have been misled. IJ has asked the Supreme Court for review of the case. Agent Lamb also wants to be reviewed by the Supreme Court. Our brief reply is available here.
- A think tank seeks to compel FERC to disclose the names and addresses of the property owners in the path of a planned-but-since-scuttled pipeline to see if the agency is complying with its legal notice obligations. D.C. Circuit: A noble project! You can also pursue a noble cause without FERC requiring you to provide addresses and names.
- Third Circuit: Officers cannot simply shoot motorists because they are escaping a traffic stop. An Elizabeth, N.J. police officer who shoots a motorist in the arm does not have qualified immunity. The jury will decide whether the officer reasonable believed that officers and the public were at risk enough to warrant the use of deadly force. Consent of three judges: An officer has violated department policy. Officers should be held accountable when they do so. Furthermore, officers cannot pretend to be up-to date on the “probably hundreds or thousands” of court opinions.
- Allugation: Dallas police officers continue to kneel down on the backs of mentally ill men long after they’ve been restrained. Others officers sit around and laugh as the man becomes unconscious, then succumbs to asphyxiation. District court: Qualified immunity. Fifth Circuit: Reversed. Mother of victim can sue kneeling officer as well as several others.
- When you reach page 63, you will find that the Fifth Circuit states: “We have reached page 63, but are still not ready to consider all of its merits.” The Fifth Circuit is denying the Biden administration’s attempts to stop the “Remain In Mexico” policy. It gleefully reminds of “what’s best for the goose” by using Supreme Court precedents, which were derived from less conservative outcomes. It also features the Stuart Kings.
- SEC charges an accountant. She defends herself during the proceedings and sues to stop the prosecution. Is she able to do this? According to the Fifth Circuit sitting in banc, yes. “All civil proceedings” is “all civil activities.” Concurrence. Woodrow Wilson was an evil man who preached too much Hegel. This is a disruption to the entire Congress scheme. Plus, “We are supposed to be chary—not champing at the bit—to create circuit splits.”
- An injunction will not be necessary to stop employees from getting vaccinated under a United Airlines policy, according to the Fifth Circuit without comment. Dissent: The religious liberty case involves an unusual case in which money damages will not be sufficient because it is impossible to undo the vaccine.
- The Fifth Circuit is the latest circuit that addresses the question, “Can the Bureau of Alcohol, Tobacco, Firearms and Explosives define’machineguns? To include bump stocks?” The answer was “Yes,” which they sided with. This avoids the awkward question “Yes.” Chevron It is acceptable to defer.
- A district court in Louisiana stopped the OSHA mandate to mandate vaccines for staff of Medicare- and Medicaid certified providers after 14 states opposed it. In an appeal, the feds request a temporary stay of the injunction. Fifth Circuit: We deny. While there may be hard questions in this case, it is not enough to prove that the hard questions exist to receive a stay. However, the injunction is only applicable to the 14 plaintiffs states.
- Royal Oak driver, Mich. (with a blood alcohol content of.27), ignores an officer’s instruction to pull over and continues on through the White Castle drive thru. The officer attempts to stop the driver from exiting the White Castle drive-thru, but the man manages to get through. The officer fires four shots and kills the driver. Sixth Circuit – The officer reasonably thought that the driver could endanger public safety. QI granted.
- After it was revealed that three teenagers were convicted in 1995 East Cleveland murder, the detectives falsified a statement from a fourteen-year-old eyewitness. The girl later retracted her statement and prosecutors kept other eyewitness accounts that could have identified a different suspect. Each exoneree must be paid $5 mil by the detectives. Sixth Circuit: There is no need to start a fresh trial. Jury instructions were excellent.
- Chicago is accused of being a lazy city that tows cars, destroys them and gives no notice to their owners. Chicago also does other awful things with cars. IJ is also suing. Was the class action properly certified by the district court to contest this system? Seventh Circuit: We don’t really know. Actually, we are a bit confused as to what the court actually said. Remanded to the district court “for another attempt, if that’s the route the parties decide to chart.”
- Eighth Circuit. Cedar Rapids police in Iowa did not “arrest” two men they were holding them at gunpoint for twelve minutes. Additionally, officers did not have the description of the one suspect they wanted to arrest, and they had probable suspicion that they would stop any person. Note: The IJ has filed a cert petition to challenge the Eighth Circuit’s extremely broad definition of “a” Terry stop.)
- A criminal defendant appeals successfully her conviction and convinces the Ninth Circuit that California’s government did not establish proper venue. But the victory is only temporary—the en banc Ninth Circuit reverses the ruling. Uh oh! The venue decision was reversed by the en banc court. However, it did not remand the issue. After 300 days, both the defendants and the government move together to recall that mandate. Ninth Circuit (en banc). A recall of the mandate doesn’t replace timely motions to reconsider. Motion denied (over a dissent).
- Institute for Justice (2011) – Your boss requests your summarist’s opinion on the recently-filed case Kerr v. HickenlooperA lawsuit claiming that Colorado’s Taxpayer Bill of Rights, (TABOR), violates Article IV of Constitution. “The Guarantee Clause!” This has been held by courts for over 100 years. The case is not moving forward.” Tenth Circuit (2014): This case is possible to move forward. SCOTUS (2015). Take another look. Tenth Circuit (2016): The legislator plaintiffs have been expelled and the district court must decide if the TABOR can be challenged by political subdivisions. District Court 2017: Political subdivisions do not have standing. Tenth Circuit, 2019: They don’t. Tenth Circuit (en banc, 2021): Whatever; they still lose … just as your summarist predicted!
- Allegation: A woman is found guilty of child abuse in Alamosa County. Following the overturning of the conviction, the woman sued. Social worker: No case has ever held that social workers cannot lie about confessions. Tenth Circuit: It doesn’t have to. That’s obvious. Dissent: To know that she could not fabricate evidence, the social worker had to have a particular case.
- Californian man sent a torrent of abusive and threatening messages to the family members and friends of Marjory Stoneman Douglas High school shooting victims. Federal cyberstalking prosecution ensues. But, wait! Wait! Eleventh Circuit: No. Conviction affirmed.
- In en banc news, however, the Fifth Circuit has not reconsidered its decision that Texas’ high school teacher who claimed to have retaliated against student who didn’t take the Pledge of Allegiance in writing was exempt from qualified immunity.
- More en banc news. The Sixth Circuit has not granted initial en bloc consideration for a challenge of OSHA’s employer-vaccination requirement. Judge Moore supports this decision because it is very difficult to hear cases en banc. Judges Sutton and Bush disagree that Congress has never given OSHA such power. Judge Bush, however, disagrees that Congress could have granted OSHA that power if it desired.