Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Los Angeles friends, join us Thursday, June 30, at UCLA, for a recording of The Short Circuit Podcast and the unveiling our interactive study about clearly established law which can be used to override qualified immunity. Among other guests, Eugene Volokh, Julia Yoo from the National Police Accountability Project and Nicholas Yoka of Panish Shea Boyle Ravipudi LLP will host this event. Register here
- When is a pipe just a pipe—and not a pipeline? San Juan (P.R. San Juan, P.R. Federal Energy Regulatory Commission: When a pipe is used for receiving or sending out gas to be used in interstate, or foreign commerce, it’s a pipeline. D.C. Circuit: Submit to FERC.
- Victor Orena (ex-Colombo family boss) is currently serving a life sentence at a federal prison. His leadership was responsible for intra-family mob violence. He’ll remain there, even though his health is declining (including the possibility that he thinks he’s president of the U.S.), according to the Second Circuit.
- FBI workers sue America after the shutdown of the government in 2018. Allegation: Your contributions to retirement accounts would have been more valuable if you made them when they were due. Gov’t: Sovereign immunity! The Federal Employees’ Retirement Scheme Act of 1986 is for employees Allowed Beneficiaries of the retirement plan have sovereign immunity to sue for “recovery benefits.” Double Aha! How you are suing Click here This is not a benefit, but consequential damages resulting from late payments. Third Circuit: The government is correct. No waiver. No lawsuit. (NB. A faction of your humble staff would like to show great respect to Judge Bibas (page 9) for correcting the Supreme Court’s inability to hyphenate its phrasal adjectives.
- According to the Constitution, prisoners have access to courts. They can also access tools necessary to file complaints. Does this mean that Pennsylvania’s corrections officers violated established law if they denied a prisoner access to the main library, or refused to lend them paper copies of Federal Rules of Civil Procedure and Evidence the weekend prior? Third Circuit. Prisoners will have access to the courts regardless of when they filed a lawsuit (although it would be absurd to do so), however, officials are protected by qualified immunity.
- Is the crime of strangulation considered a “crime” under North Carolina law? People who have never been to America before will find this helpful. Sentencing Guidelines rigamarole, the Fourth Circuit explains why the answer is not so simple—but also why it is yes.
- Supermax prisoners in the United States are kept in solitary confinement from 22-24 hours per night, and every day without having any opportunity to join the rest of society. The Virginia solitary confinement policy can the Virginia officials claim qualified immunity to a class action lawsuit that is based on harms from this long-term, solitary confinement. Fourth Circuit: Negatory. The motion to dismiss is now underway. We are hearing from plaintiffs alleging that the defendants You already knew The harms of prolonged solitary confinement were not recognized and ignored; “qualified immunity” does not protect Knowing Violations of the law
- North Carolina charter school[s]”, and must be looked after. Fourth Circuit (en banc): [blank stare]. The second dissent is that I think chivalry may be dead.
- Baroque theology of Younger Abstention means that the federal courts cannot interfere with state-court proceedings. There is an exception to this rule for extraordinary circumstances. What is an extraordinary circumstance? Fourth Circuit. It is difficult to determine with exact precision what constitutes extraordinary circumstances. However, the district court did not abuse its discretion by finding exceptional circumstances. In this instance, there are strong evidences that West Virginia started an administrative proceeding to “shutdown” an out-of state air-ambulance provider to favor its in-state counterpart. The podcast provides more information about the doctrine.
- A potential juror cannot be struck because they are of their race under the Constitution. Four people can sue a notorious Mississippi district attorney for allegedly doing this regularly. A Fifth Circuit dissents and says that no one will ever be called to jury service. A dissent by the Fifth Circuit states that the DA must not be “chastened,” as a result of previous reversals made at SCOTUS, and state courts.
- Louisiana landowners are missing out on the natural-gas boom because a bank holder inadvertently leases all of the mineral rights to their land. He does this right before modern drilling technology makes the land extremely value. District court: There is no liability for the “mistake of judgment”. Fifth Circuit: Although it was correct, this is not a liability.
- Louisiana’s state corrections officers make a deal with East Carroll Parish jail to take in prisoners who are too crowded. Yikes! This deal does not guarantee prison inmates are released promptly; others are being held for many months after their release dates. Fifth Circuit: It is possible for a reasonable jury to find that some defendants were involved in overdetention and failed to implement policies that would prevent delay. No qualified immunity. Disagreement: Plaintiffs claims are barred Heck v. HumphreyThe law prohibits civil suits that would invalidate criminal convictions. The argument can be made by defendants upon remand.
- Allegation: Louisville Police fabricated evidence, withheld exulpatory DNA evidence and forced a jailhouse informant to give a false statement in which a 16 year-old was implicated in the 2005 murder. District court. She was convicted of taking an Alford by pledging guilty and maintaining her innocence. Heck barred. Sixth Circuit – The governor has pardoned her and she is allowed to sue.
- FDIC has agency “judges” that, in addition to protecting bank deposits, hold hearings and take evidence. Decisions made by these judges can entail heavy monetary sanctions. Sixth Circuit. A recipient of a monetary penalty would argue that agency judges at the FDIC enjoy an unconstitutional right to removal. But that argument fails since he is unable to show that the removal protections cause him harm. Many other constitutional or statutory challenges fail as well. Dissenting: Although I recognize that constitutional challenges have failed, I will grant relief on statutory grounds. It is also worth noting that while petitioner does not claim agency “judges” violate Article III, it appears to me that there must be. SomeThe government cannot adjudicate penalties before any agency judges. (NB. Most people will remember the landmark Fifth Circuit decision on this topic last month.
- Allusion: B and A are corporate rivals. A pretends to be B, a small client, rather than A. He then contracts with A and gets A’s product. A also steals A’s trade secrets. B files suit against A and invokes the clause in the contract for arbitration. Seventh Circuit. (Per Easterbrook J., completely not having it). “Signing any contract without your hands crossed behind your back is not an addition to your rights nor subtract from anybody else’s.” The made-up client agreed to arbitrate, but not with B.
- Allegation: Wynne, Ark. Officer follows woman through town, leaving his vehicle near her residence. A second officer stops her after she has left the restaurant that he had followed. The stalker officer is then called to the spot. Her arrest is for driving while impaired. She is arrested for driving under the influence. Eighth Circuit – There is no evidence that she was stopped or arrested at the direction of the stalker officers, thus qualified immunity.
- Allegation. ICE agents pushed lawyer to ground, without warning. She followed them and their clients into an ICE facility. The lawyer sustains concussion and a fractured foot. Is excessive force an offense? Eighth Circuit – There is no case that states force used for repelling an individual, but force used to capture them does not count as seizure as per the Fourth Amendment. Qualified immunity.
- The baroque doctrine reminds us of Younger abstention? Is it the one that states federal courts can’t interfere with proceedings in state court? You do. Is an insurance conservatorship a similar proceeding? Ninth Circuit: Nope. However, the insurance conservatorship had been an Rem Proceeding and Federal Case either Rem Or quasi in remThe equally wacky “prior jurisdiction” is used to shuffle these plaintiffs from federal court. The opinion is not bad, despite what the summary might suggest.
- En banc, the Ninth Circuit ruled that it is not possible to challenge the California executive orders which ban in-person instruction at both public and private schools by 2020 or 2021. Dissents
- A Nicaraguan asylee was threatened with torture and death three times after being forced from his Nicaraguan home for supporting his political views. Ninth Circuit. Those seem like excellent reasons to give him asylum. Dissent
- Mexican national requests withholding of removal to the United States. However, the denial is refused because the Mexican citizen twice encouraged his son to illegally enter the United States. The denial is challenged by the Mexican national, who argues that the First Amendment’s prohibition against “encouraging illegal entry” is constitutionally unconstitutional. Ninth Circuit: It is not if the law was interpreted in its stricter criminal law meaning. Dissent: It’s almost redundant if it is understood in this way.
- Allegation: A fired Albuquerque officer files a lawsuit against the city seeking information about his termination. He is sued by the city right back and he files a counterclaim for malicious misuse of process. Is this unconstitutional retaliation District court: Because the counterclaim was civil tort action and not criminal prosecution, no. The official telling the lawyers in the city to file the counterclaim was not acting under the color of the law. Tenth Circuit: Case undismissed.
- DeKalb County officer in Ga. shoots suspected child killer (who had been pointed a shotgun at himself) in the head and shoulder. The suspect is then handcuffed and pinched by another officer. When he attempts to stand up, a third officer pistol-whips the suspect. Eleventh Circuit: He is granted qualified immunity to shoot him, but not for pistol whipping him. A jury could find that it is unconstitutional for a patient to wait more than four minutes before calling an ambulance. However, this law was not clearly defined so QI also applies.
- En banc news: The Seventh Circuit won’t reconsider its $350k jury verdict against the debt collector, who attempted to collect debts it knew was beyond the statute of limitations. Since the representative of the class was not tricked into paying the amount and suffered no other concrete injury, it is ineligible to file a lawsuit. Dissental (4 votes): “Anyone who’s experienced financial insecurity will easily understand her injuries.”
- IJ has asked the Tenth Circuit for a reconsideration of its decision that allowed Denver officials to conduct unannounced sweeps at homeless camps. This panel reached their decision based upon the argument that the city had not made and because the plaintiffs were not allowed to challenge it. The Supreme Court is not pleased with this.
For reasons that are only known to him, Chaves County Sheriff’s deputy David Bradshaw took offense when Mario Rosales, another driver, passed him in 2018. Bradshaw—who was off-duty and driving an unmarked personal vehicle with his 2-year-old in tow—followed Rosales home, blocked him in his driveway, yelled profanities, and pointed his gun at Rosales, who was lawfully armed but calm and nonthreatening. After another deputy arrived, Bradshaw was eventually released. A federal district court gave Bradshaw qualified immunity last year. Among other things, however, the court did not consider Bradshaw’s authority, and therefore whether qualified immunity was available. IJ appealed to the Tenth Circuit this week. The court dismissed the claims against Bradshaw who was retained and hired despite his past of violence. You can read the rest of this article by clicking here