Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
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- Under Brazil’s Mais MédicosProgram, where the country employs doctors from abroad to improve its health care for Brazilians in need. Cuba in turn rounds up Cuban physicians and exiles them, possibly without their consent or in violation of human trafficking laws. The Pan American Health Organization (PAHO), which handled the money via its Washington, D.C. account, is sued by four doctors who managed to escape. PAHO claims that it is immune under the Constitution for the World Health Organization. This gives it the right to all “privileges, immunities, as may be required” in order to perform WHO functions. D.C. Circuit: These privileges and immunities should be defined in separate agreements, but that never occurred. The case continues.
- Does the Speaker of New Hampshire’s House of Representatives discriminate against state legislators most vulnerable to COVID-19, by refusing them remote participation in proceedings? First Circuit (sitting en banc): Can’t say. Absolute legislative immunity is available to the Speaker. Dissent: Legislative immunity protects legislators from being unable to perform their duties. This isn’t possible by forcing legislators to make a choice between these duties or a substantial risk of death.
- Please enjoy the following week’s Vocab Quiz: Cergestrate. Judge Selya from the First Circuit brought this to your attention.
- Shi’a men claims that he was kidnapped by Sunni Taliban and made to clean and wash his clothes. He escapes, and is granted asylum by the U.S.A in 2000. In 2016, however, the feds decide that he can’t become a permanent residence because he, among others, used a weapon. Second Circuit: OK, there are elements to the “weapons ban”, and the feds did not adequately explain how they met them in 2016. They can’t simply check these boxes right now. There are many other matters that need to be resolved on remand.
- U.S. citizens with connections to Haiti sued the Haitian government, as well as several multinational corporations. They claimed that the companies conspired for the fixing of the telephone and remittance prices from the U.S. to Haiti. According to the “act doctrine”, the district court dismissed the case. Second Circuit: This was incorrect. Courts cannot declare foreign acts of government under the act doctrine Invalid. However, it doesn’t stop them from declaring acts of foreign government Wrongfulunder a U.S. valid cause of action
- Third Circuit: Princeton student was expelled after his ex accused him for sex abuse. He reportedly claimed that Princeton discriminated against him because of his sexual orientation. Case undismissed.
- Macon County Sheriff’s deputy in N.C. shoots from the porch into a home, killing a man who just fired a shotgun. Fourth Circuit (over a dissent): No qualified immunity. The question of where the man pointed the shotgun is still open. It also remains to be disputed whether the deputy was law enforcement. Moreover, some state-law claims shouldn’t have been denied.
- The Zen tradition uses indecipherable words like “what’s the sound of one hand tapping?” to help us discover greater truths about our universe. Fourth Circuit poses the question, “Can prisoner’s criminal record be used against him if there is no criminal background?” In this spirit, it answers the question, and after achieving true enlightenment, it says yes.
- Williamson County (Texas). In Williamson County, Texas. He agrees to plead guilty. Yikes! His conviction was vacated many decades later because there wasn’t any such evidence. Is he allowed to sue for damages against the county because of the closed-file policy by the district attorney that permitted the prosecutors withholding evidence until trial? According to the Fifth Circuit, no. It could have been a policy. EnabledAlthough he told the prosecutors to lie it hasn’t been proven. caused They will lie.
- Man convicted for murder requests habeas review after exhausting all state appeals. He alleges ineffective counsel assistance. Defense counsel was unable to stop sneezing during closing argument. He did so for a total of 27 times over the 60-minute period. Sixth Circuit: Indeed, counsel’s failure to take a non-drowsy antihistamine—despite knowing he suffered seasonal allergies—materially prejudiced defendant’s right to a fair trial. Let him go or retry him!
- Allugation: A Nashville officer who was accused of child abuse is cleared. The Cheatham County Tenn. police investigator that led to her indictment is disgraced and she faces an unfounded internal affairs investigation. During which, she is forced to accept a promotion. Sixth Circuit. Her state law malicious prosecution claims are exempted from state-law qualified immunity, which is almost the same as federal QI. Defendants’ counter arguments range from weak to stronger.
- Allegation: A pretrial detainee told Butler County, Ky. jail officers that he is concerned about his safety as other prisoners think he is a snitch. Soon after, he was knocked unconscious, and he suffered a fractured jaw. Is it possible to sue for guard justice? District court: Sixth Circuit (over a dissent): Yes.
- Allegation. Man flees from a petrol station after trying to rob it. He attempts to obey the conflicting instructions of Indianapolis officers. He reaches for his ID and is shot by the officers. (He survives.) Seventh Circuit. This case must go to a jury. No qualified immunity.
- According to the Tenth Circuit, a Kansas inmate claimed that he had been placed in solitary by his jailhouse lawyer in retaliation against filing a suit. But there is no constitutionally protected interest for jailhouse lawyering so his claim that it was for helping other people with their lawsuits cannot be pursued. Another case dismissed due to pro se pleading difficulties: The claim that his cell had been rattled for two months, and that it was lit constantly. This caused sleep deprivation.
- Circuit split alert! Are you trying to force someone to withdraw funds from their bank accounts? (A federal crime) Or just the person (not federal crime). Seventh Circuit (2005): Bank. Fifth Circuit 2005: The person. Tenth Circuit (this Week): Bank.
- Denver officer commands homeless man to climb out of behind some bushes. He then tases the victim seconds later, and he runs out. District court: No qualified immunity. He was not allowed to follow his “bang bang” commands. Tenth Circuit: The video “blatantly contradicts” that finding. Reversed. The man’s claim against the city will live on to another day.
- Transgender woman seeks asylum in the United States. She claims past persecution in Honduras as a result of her uncle’s abuse, and fears future persecution because of pervasive discrimination in Honduras against transgender women. The Board of Immigration Appeals rejects the appeal of an immigration judge. Tenth Circuit. Her uncle, no doubt, is a monster. But he seems that way to everybody. Therefore, there is no asylum for past persecution. Any reasonable adjudicator will find evidence of previous persecutions against transgender Hondurans. Partially dissenting: What’s the point?
- The University of Alabama’s Christian evangelist opens a business on the sidewalk. He is then asked to vacate because he lacks a permit. The evangelist sues for a preliminary injunction. However, the Eleventh Circuit rules that the sidewalk in question is not a public forum. The evangelist believes that the sidewalk belongs to Tuscaloosa and is therefore a traditional forum. Eleventh Circuit: The government is the owner of all property that can be subjected to forum analysis.
- Serial ADA plaintiff claims that she experienced “frustration” and humiliation while booking on a hotel site whose website did not provide information regarding rooms with accessibility features. The serial ADA plaintiff also claims that she intends to return to the site in the near future. However, she admits that she doesn’t plan on staying in the hotel and not even going into the surrounding area. For lack of injury-in fact, the district court dismisses. Eleventh Circuit (with concurrences separate from each of the three judges).This was an error. Plaintiff has correctly AlluvialIt is possible to claim a stigmatic injury. However, the district court could hold an evidentiary Hearing to establish if this claim is credible as well as if all other requirements for standing are satisfied.
- The Fourth Circuit has affirmed that it will not reconsider its refusal to accept a constitutional challenge by the NSA for allegedly spying on Wikimedia internet communications.
- And in further en banc news, the Ninth Circuit will not reconsider its decision upholding a $3.6 mil jury award (part of a total $13.2 mil award) to the family of a man killed by Anaheim, Calif. police for post-death “hedonic” damages—that is, the lost pleasure the man would have gotten out of life. California law prohibits these awards (as do 44 other states). They are not permitted at common law. They should not be allowed in Section 1983 cases.
- IJ is making amicus appearances next week to argue that it’s against due process for state trial courts in Michigan to rely on costs incurred from convictions to pay the bills and keep their staff paid. A quarter of the funding for Michigan’s trial courts comes from convictions. Some courts make a profit for the local municipality or county. One judge described Michigan’s trial courts as “the cash cow of local government.” You can read the brief by clicking this link.
Three weeks ago, friends, we shared with you the story about IJ’s attempt to overturn a Idaho law that prohibited African-style hairdressers from making a living as a result of their skill without first obtaining a credential in a non-relevant and costly beauty school. Governor. Brad Little signed a bill that was unanimously passed by the legislature and that makes Idaho the 32nd state to free the braiders from cosmetology licensing laws—using language from IJ’s model braiding bill. Huzzah! Dan Alban, IJ Senior Attorney: “Braiders have a right to economic liberty in all 50 states. We’ll continue standing for natural braiders until braiding liberties are a nationwide reality.” To earn a decent living, no one should need to have a lawyer or lobbyist. To learn more, click here