Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Michigan friends: We’re headed to Plymouth, Friday May 20, for a forum about the Michigan Constitution. This event will feature litigators and scholars as well as retired Justice Stephen J. Markman, Michigan Supreme Court. Get your RSVP now!
- A campaign finance watchdog filed a complaint against the Federal Election Commission in 2016. It stated that Clinton and Correct The Record PAC did not properly disclose coordination expenditures. After a evenly divided vote, the FEC dismissed the complaint and the watchdog sued. The lawsuit is dismissed by the District Court for lack of standing. D.C. Circuit: This was an error. This group suffered an informational injury. It is unknown what the value of that information will be in 2022.
- Former California Congressman Devin Nunes sues Georgia-headquartered, Delaware-incorporated CNN in Virginia for allegedly defamatory claims made in New York about Nunes’ conduct in Austria. However, the case is transferred from California to New York. The New York court rules that California law will govern the claim. California Congressman objects to Virginia law applying New York law. Second Circuit. Virginia law would have applied California laws. Dissent: Virginia law could have been applied to New York law. Maybe D.C. law.
- A drug kingpin has committed “an array crime worthy of James Bond villain,” such as dealing arms and technology with Iran and North Korea, attempts to minor warlordisms in Africa and plotting a coup at the Seychelles. He immediately agreed to cooperate with the DEA when they caught him in Liberia, 2012, and he was sentenced to a 25 year term. His three underlings were convicted and sentenced for the murder of a Filipino real-estate agent. You wait! The feds didn’t hand over certain classified docs, including impeachment evidence against the kingpin, until after trial—and only at the Second Circuit’s behest. Brady violation? Second Circuit: They would have been convicted regardless if there had been enough evidence. Second Circuit: However, some of the convictions cannot be held due to vagueness in the law. Remanded to the Court for sentencing.
- West Virginia dealers in used cars file a motion for suppression of evidence from the search. A court, four years later agrees with the state trooper who requested the warrant and makes misleading statements. It also dismisses criminal charges against him (failing customers to be made aware that their cars were totaled prior to being repaired) without prejudice. Fourth Circuit: However, it is too late to sue for the unlawful search. They ought to have filed while the criminal case was pending.
- Allergy: A flesh-eating organism is causing the North Carolina prisoner to have his internal organs destroyed while nurses are treating him for alarming symptoms like burning in his lungs and bad cough. His life was almost at stake because he delayed proper treatment. Fourth Circuit. His lawsuit against the nurses which he brought from prison, without any counsel, and that didn’t name the nurses initially as defendants was nevertheless filed on the due date. Case un-dismissed.
- A car packed with teenagers drives away from the scene after hearing gunshots. A police officer shoots five shots at the vehicle, killing a passenger of 15 years. Fifth Circuit (over a dissent): No qualified immunity. The jury will decide whether the vehicle was speeding towards or away from the second officer. (The officer was convicted by the criminal court of murder. However, a discretionary appeal of that conviction has been allowed.
- Following the publication by the Biden administration of a memo outlining Department of Homeland Security’s priorities in immigration, Arizona and Montana filed suits against Ohio to stop the implementation. A nationwide preliminary injunction was issued by the district court and the feds requested a stay of proceedings. Sixth Circuit: Stay granted. It is unclear how states will be affected by this memo, or if it can even be reviewed. The states could lose regardless. By Judge Sutton: Self-Concurrence
- Chicago traffic tickets are big business. Chicago issues approximately 3 million tickets each year. This resulted last year in $1.8 billion in driver debt. Tickets revenue generated 7% of the operating budget for 2016. If the parking-ticket debt of the owner accumulates, then the city can impounded the car and attach a lien to pay unpaid fees or tickets. Many people declare bankruptcy because these costs can often be more than the vehicle’s value and the ability to pay. Seventh Circuit: This lien can be avoided in bankruptcy. The owner will not need to repay the debt she owes to obtain her vehicle back.
- Is it against Minnesota’s Anti-Harassment Law for nonprofits to mail postcards asking local businesses to stop advertising in local papers? The paper often runs advertisements for porn and strip clubs. Nonprofit: That law was enforced in 2019 against us for mailing our postcards. It certainly seems to limit our speech. We’d love the federal courts to uphold our First Amendment rights. Eighth Circuit: The law does not apply to your request, and you are therefore not allowed to challenge the decision. Dissent: Except . . . Three years ago, the law was enacted against them. They do exactly what they wish to continue doing.
- The Ninth Circuit remanded the Supremes’ decision and found that a data analysis company whose business model relies on the extraction of information from LinkedIn profiles can obtain a preliminary injunction. This will allow the data analyst to continue accessing the data, while LinkedIn files suit to stop the proceeds from being scraped. LinkedIn users can modify their privacy settings to prevent their profile being scraped.
- Oregon senators retreated from the chamber of the Senate in 2019, to prevent the body from having the required quorum. They are threatened by members of the majority party. The quorum-breaking senator responds to this threat with remarks like “[s]End bachelors and get heavily armed.” The majority leadership orders him to notify the Capitol 12 hours in advance before he visits. The senator then sues several senators and their staff. The district court dismissed the case. The Ninth Circuit restores it: It could be that the requirement for 12-hour notice was in retaliation to this man’s participation in protected speech.
- Allegation: 2020. Construction company transfer employees from one site in San Francisco with lots of COVID-19 infection to another site. Plaintiff, who is also an employee, gets the virus and returns home to his wife. She has to remain in the hospital for more than a week. Ninth Circuit. And, we have some questions that the California Supreme Court should answer about state law.
- The man escaped from San Joaquin County in California. Officers and K-9 caught up with him after he was gone for three weeks. Ninth Circuit. I find the facts favorable to plaintiff (apart from those that are clearly contradicted on bodycam footage), although the dog’s first bite didn’t violate the Eighth Amendment. However, any post-handcuff beatings or bitings (if these occurred) showed they did. There is no QI. Dissent: I would affirm the entire district court, leaving aside any post-handcuff beatings or bitings. [the]You can’t use excessive force, or fail-to-intervene claims. Instead, you can enjoy the excellent sound quality of contemporary computer speakers.
- After being jerked around by environmental groups for over a decade, and finally being shocked!The EPA has denied a petition to cancel a registration of a pesticide for flea collars. Ninth Circuit. The court ordered that you provide “reasonable” reasons. Your explanation was not sufficient. Retry it.
- A Utah Highway Patrol officer pulled over a vehicle with Kansas plates. He speaks with the driver and returns to his patrol vehicle, calling for a K-9 unit. Finally, the K-9 appears and warns the officer. A search results in the discovery of fentanyl along with a kilo cocaine. Was the officer able to justify extending the stop? Tenth Circuit: No. Only three things were mentioned by the officer: The presence of a bag of duffel in the backseat, air freshener in center console and that driver didn’t roll down his window completely. He also couldn’t locate the rental agreement and stopped briefly to answer questions about the trip. Hunches don’t suffice. You must suppress the evidence.
- When you’re reading an opinion regarding the New Mexico Meadow Jumping Mouse being designated a critical habitat by the federal government, you sometimes wonder “What does the New Mexico Meadow Jumping Mouse look?” The Tenth Circuit has a helpfully illustrated opinion.
- Allegiance: A Kansas prisoner’s suit against a staffer for calling him a snitch was dismissed. His access to the library of law is restricted during his time in isolation. Tenth Circuit: The new claim he made about being denied access to the library shouldn’t have been dismissed.
- Eleventh Circuit: Not only does the nonprofit group Speech First have standing to challenge the University of Central Florida’s discriminatory-harassment and bias-related-incidents policies, it’s entitled to a preliminary injunction on the former (and the district court should consider a PI for the latter on remand). Concurrence
- En banc news: The Eleventh Circuit is expected to reconsider its decision, and possibly its precedent in relation to the Prison Litigation Reform Act’s “three strikes rule,” which prevents pro se prisoners filing lawsuits. In forma pauperisIf they had previously been dismissed from three suits for failing to state a claim, According to its previous ruling, currently in doubt, the Eleventh Circuit ruled that cases dismissed due to failure of administrative remedies constitute strikes.
- IJ asks the Eighth Circuit for amicus brief information to affirm a Missouri district court ruling that denies absolute immunity to a judge who on two occasions jailed their minor siblings. They refused to return home with their mothers and preferred to be with their father. On one occasion, the judge put the children into a cell and kept them there for more than an hour. They weren’t in contempt of court, were not parties to any proceedings, and had never been in court. The doctrine of judicial immunity can be a problem for your normally calm Short Circuit staff. It is not compatible with Section 1983 which was created to provide a civil remedy to bad-acting state judge.
- IJ also requested the Ninth Circuit reverse the dismissal. The suit claimed that Stockton police from California beat Cinco de Mayo revelers with batons and then made false reports to the court so that the plaintiff was arrested for resisting arrest. According to the court, his lawsuit was rejected because plaintiff signed a pre-trial settlement in which he pleaded no contest and agreed to have the case dismissed. The Supreme Court has made it clear that those in the same shoes as him are permitted to continue.
Officials of the government shouldn’t be allowed to force their critics to submit. That’s exactly what Village Attorney of Mt. Pleasant, Wisc. Pleasant, Wisc. He claimed that an ordinance that extended the term of Village Board members to three years was in process, but there had been very little notice. In an attempt to avoid the crippling costs of defending the meritless defamation suit, Kelly acceded to the Village Attorney’s demand that she retract her—accurate—claims. Kelly was able to file suit and IJ joined the fight to protect Kelly’s First Amendment right of criticism to the government. For more information, click here