Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
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- Starting in 1971 The New York TimesThe Pentagon Papers published extracts which revealed the U.S.’s Vietnam activities, including JFK’s participation in South Vietnamese president Ngo Dinh Diem’s death and LBJ’s “we seek to end all wars” lies. Nixon examines the source of these documents and subpoenas Harvard’s political scientist to give evidence. He is then held in contempt and sent eight days to jail. Seems like a riveting read! A Harvard historian is unable to access the records of grand jury members because they are sealed indefinitely. First Circuit, adding to a Circuit Split: Records shall be kept under seal.
- An ICE agent waited in front of him while a Massachusetts state judge and her assistant stole an illegal immigrant into a Massachusetts courthouse. This was quite a clever scam! A federal crime, too! First Circuit: This will be determined at trial. We are not allowed to dismiss the indictments before trial because of the Tenth Amendment and the doctrines of judicial immunity. Perhaps this could have been a conference instead.
- An investment analyst discovers that ADT, a home security company, is being bought by a private equity company. This information leads him to buy $25,000 worth ADT call options. The price of these options has soared by 6,000% since the announcement. His employer applies for restitution under Mandatory Victims Restitution Act to recover legal costs incurred in cooperating with federal agents after he is convicted. Second Circuit: They can obtain them for participation in criminal and/or trial but not for related SEC civil investigations.
- Allergations: A prison guard mislabelled a prisoner as a sex offenders (he was wearing a “Sex Offender T-shirt”), putting him in danger of being brutalized and beaten by fellow prisoners. Officer is sued by prisoner, alleging violation of the Eighth Amendment. Third Circuit: Perhaps we could kick the whole case. Bivens grounds (new context, etc. etc.). We’ll give the prisoner (and development of the law), the courtesy to address at least some of his Eighth Amendment claims directly. The prisoner loses. He can’t be required to wear a T-shirt containing sex offenders in prison because it is against the Eighth Amendment. He also cannot claim damages because the guard didn’t protect him against attacks.
- Navy SEALs, and others challenge COVID-19’s vaccination requirements. They claim that the requirement violates their religious convictions. The Navy follows a 50-step procedure to decide such requests for accommodation. It invariably denies them. District Court: This sure seems like it violates the Religious Freedom Restoration Act. Fifth Circuit: Agreed. The Navy requests a stay on the preliminary injunction until appeal.
- Motivational speakers Pump you up. They egg you on. They After the Twitter account of the softball team posts a brief passage from their book, sue your high school. Fifth Circuit: No, that’s not what they should do.
- Coldspring, Tex. A high school janitor was brutally killed by the sheriff. The sheriff then set his sights upon a nearby family. After less than an hour of jury discussion, the jury sentenced the father to 75 years and the girl to life. However, the son was exonerated. Texas High Court: The father and the daughter must be released. There is a lot of litigation about the behavior of the government officials. Fifth Circuit (2012) – The claims of the son may be pursued. Fifth Circuit (2018): A son can bring his claims to court. Fifth Circuit (2018): The claims of the daughter can be brought to trial. Jury trial (2020 final): It appears that the sheriff deliberately or recklessly left important details out of her application for an arrest-warrant. $1 million for each of the siblings. Fifth Circuit (2022): Indeed.
- You have the constitutional right to record police. But can they make arrests if you are too close? Fifth Circuit: Sure. Austin, Tex. Officers who arrested and took to the ground “cop watcher” when he blocked their view of their ability to do their duty.
- IRS: The new notice that we have published doesn’t require comment or notice. Sixth Circuit: These taxpayers were fined five figures because they failed to perform something that was required of them before your notice was published. This is substance.
- Geneva, Ohio Officer responds in an emergency to a family disagreement that ended up with a damaged TV remote. He knew the adult son of the family was suffering from mental illness and wanted to help. “Throughout the encounter, [the son]You have never spoken anything. [the officer]He never tried to reach out toward him. [the officer]He. . . He did not make any threats or raise his hands. However, he continued to walk towards the officer and did not reply to his commands. He was tased three more times by the officer and then shot nine times. District Court: Qualified Intent granted. Sixth Circuit (over dissent): Reversed.
- Allergations: A creepy college instructor did a lot of strange things to students, and the school took a while to fire him. Title IX: Student sues school for deliberately indifference after her initial report of sexual harassment. District Court: She didn’t allege the elements of deliberate indifference in student-student harassment cases. Case dismissed. Sixth Circuit: But the deliberate-indifference standard is different (and less stringent) for Teachers-student harassment. Case un-dismissed.
- In the wake of Larry Nassar’s conviction for sexually abusing hundreds of victims in his 18 year tenure as USA Gymnastics team doctor, the team filed bankruptcy. This was in response to a number of civil lawsuits. Did Liberty Insurance—the team’s insurer—have a duty to defend those lawsuits and pay expenses incurred in investigation? Are those costs excluded by the policy’s “wrongful behavior exclusion?” Seventh Circuit, Appeals Division: The majority of these expenses were covered. However, there may be a maximum of $250,000 that is available for consideration on remand. Dissent: This policy does not cover claims that are “in any manner related” to an insured’s wrongdoing, as these claims certainly are.
- Texas Attorney General Ken Paxton sent a Civil Investigative Request (CID) to Twitter after the platform banned Donald Trump. He asked the company for documentation relating to its content moderators decisions. Twitter sues, alleging that the demand is government retaliation for the company’s First-Amendment-protected content moderation decisions. Ninth Circuit: Return when the AG enforces the CID. The CID can chill your speech, but the case cannot be considered “prudentially ripe” until then.
- Three California district attorneys are refused intervention in an appeal against California’s death-penalty process (which they want to defend), and a Ninth Circuit member is appointed. sua sponte calls for rehearing en banc. There are not enough votes to allow rehearing. Several members of Ninth Circuit have issues with that.
- Allegation. A Federal corrections Officer in Atwater (Calif.) publicly called prisoner “snitch” while offering a reward for his physical attacks. The prisoner was quickly beaten, as expected. It is an entirely new situation. Bivens This case is deemed to be in the context of the facts and must therefore be dismissed. Ninth Circuit (over dissent): Nope. It is not possible to advocate against an “very modest increase” of the Bivens This is the remedy.” It is possible that the case will continue.
- Casper, Wyo. A man suffering from schizoaffective disorder was shot and killed by officers in Casper, Wyo. Tenth Circuit was constitutionally permissible. Concurrence Perhaps not constitutionally reasonable under the circumstances—we really should be looking harder at whether police needlessly escalate in situations like this. However, the law was not violated in this case.
- A New Mexico politician posts disparaging comments to an Otero County commissioner’s Facebook page. This led the commissioner to remove him. An aggrieved gadfly files suit, claiming unconstitutional reprisal for exercising his First Amendment rights. Tenth Circuit (unpublished). But all defendants have qualified immunity. Cases involving officialGovernment Facebook pages don’t meet the legal requirements. The one case that could be considered out-of-circuit is not enough to establish the law.
- The Eleventh Circuit has a case regarding standing in marsh. This can be used in two senses.
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