Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
The Short Circuit Podcast: Qualified immunity reform is not being addressed by Congress or the Supreme Court. All the action now takes place in the state legislatures. Alex Reinert, Cardozo Law’s special guest joins us to discuss civil rights enforcement in state law.
- The D.C. says that some plaintiffs may be able to challenge an FCC rule governing the placement of radio antennas if they have a sensitivity. Circuit. This means that we can hear their arguments and decide if they are right or wrong.
- A Texas district court issued in January a nationwide preliminary order against Executive Order No. 14043 directs federal agencies that their workers must be immunized against COVID-19. The government requested a stay of proceedings pending appeal. Fifth Circuit (motions panels): The merits panel will decide if they wish to take action on this. Dissent
- “Fuck the Police,” Fucking Thugs With Badges,” Six Bitch Ass Fucking Pigs” Indelicate phrasing? It’s possible. However, constitutionally protected speech is? It is very clear. The Sixth Circuit does not grant qualified immunity to the officers who arrested the Ohio fairgoer. Trial will be held in the case. [Ed.: We would’ve hyphenated “bitch ass,” but reasonable minds can differ.]
- Kentucky man abducts his 2-year-old girl from her custodial grandparents. He fought back against police with “superhuman” strength, and he charged one officer. Police then shot and killed him. Did he suffer brutal beatings by police before being shot unnecessarily in the head? Sixth Circuit. Most witnesses agree with the former. However, one witness says that he believes the latter and it’s sufficient to present this case to a jury.
- It’s almost certain that Ben Kramer had more adventures in 1980s than you. He was a champion of offshore powerboat racing, a drug kingpin, who imported 500klbs of marijuana via barges and freighters. A murderer of his ex-idol (the billionaire inventor of Cigarette speedboats and friend of GHW Bush); and a prisoner serving a sentence for his helicopter escape attempt. You can imagine a more wild decade. The courts sentenced him to $110 million in forfeiture and ordered that he work for the satisfaction of the judgements. Kramer says: It was too much. Give it back. Seventh Circuit: No.
- Sufficiency-of-the-evidence challenges to a criminal conviction are notoriously hard to win. It is possible, however. A Californian man was able to persuade a unanimous Ninth Circuit panel not to overturn his convictions in drug-dealing-related charges. Although the evidence clearly showed the man had a problem with methamphetamine use, it was not clear that he sold the drug.
- 2020-SCOTUS watchers could recall United States v. Sineneng Smith—where the Supreme Court (sua sponteThe Ninth Circuit was admonished by ). sua sponte Overbroading the federal statute which makes illegal immigration a crime for the purpose of financial gain. Ninth Circuit (2022: We have again found that the statute is too broad.
- The Department of Education was accused of unlawfully delaying student loan decision making during Betsy DeVos’s time as Secretary of Education. Are the plaintiffs allowed to compel DeVos for a deposition Ninth Circuit. The plaintiffs showed that DeVos acted in bad faith. However, they had to also show that they cannot get the information that they desire any other route. So no deposition. Disagreement: There is no reason to not require an FormerCabinet official will testify. She’s obviously not busy.
- California officials contest law that prevents public employers (and their employees) from dissuading or discouragement of employee organizations. What is the First Amendment violation? Ninth Circuit: The officials do not have standing to make that decision. This restriction does not apply to any individual; speech is restricted only in the cases where it can be attributed to the government employer.
- Boulder (Colo.) and the Boulder County, San Miguel, are suing energy companies for climate-related damages. Although the energy companies would love for the case to be heard in federal court, the Tenth Circuit finds that the Six arguments they present are not sufficient to warrant removal.
- Oklahoma inmate sues prison because they allegedly provide inadequate nutrition. The inmate was told that the prison did not have the money “to fix” the spoiled foods, cockroach infestations and restricted portions. Because the district court failed to find constitutional violations, it dismissed the case. Tenth Circuit (2019): Undismissed. District court: Ok, now he loses due to insufficient exhaustion. Tenth Circuit (2022).
- The 2020 Decision Tanzin v. TanvirThe Supreme Court unanimously ruled the Religious Freedom Restoration Act allows people to sue federal officials that substantially hinder their religious exercise. The Court refused the request of the govt for a policy-based exemption to liability under RFRA. This was because such policymaking would be invading the power and authority of Congress. Tenth Circuit: Yeah, but the official can still invoke qualified immunity—a judicially created, policy-based exception to liability.
- Georgia is an independent state and a country with right-to bear-arms. If your spouse spots someone outside of your house at night, you have the right to get a gun and go investigate. However, the police officer who appears to be the prowler, and shoots your wife in the driveway in complete anonymity, will not get qualified immunity. The Eleventh Circuit is at least.
- Allegation: Suspecting a Lamar County, Ala. student has marijuana—quelle horreur—two female school staffers strip search her, twice, while she’s on her period, once in front of an open window to a school hallway. Eleventh Circuit. That will be going to the jury. If true, no qualified immunity.
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