An overview of recent Federal Court decisions

Case closed! Seven years ago, IJ filed a Freedom of Information Act request for all records in the IRS Asset Forfeiture Database. And we’re happy to say that this week – after an initial request from the IRS for $750,000, and then the agency reversed course and said the data was not subject to FOIA at all, and everything a bunch of litigation – the IRS finally handed over everything we asked for. Which we will use to keep the public informed. Click here to find out more.

Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

  • Second Circuit: It’s fair to say that juror #4 in this criminal antitrust trial for alleged bid-rigging in international currency exchanges shouldn’t have released a podcast during the trial in which he admitted he had stopped paying attention to it. But it’s also fair to say that the conspirators shouldn’t have sent instant messages that literally said “conspiracies are nice”.
  • Heirs: The wise say only fools rush[to litigation]but [we] can’t help [seeking to terminate our 1983 grant of rights in our dad’s hit song “Can’t Help Falling in Love”]. Second Circuit: Like a river flows, surely to the sea, honey, so it goes. Some things [aren’t] meant to be [under the Copyright Act of 1976, which grants termination rights solely to authors].
  • Fifth Circuit: It’s one thing for a prosecutor to allow a witness to lie on the stand, but it’s another thing for a prosecutor to fabricate the witness’s testimony. Thus, a Livingston, Louisiana parish prosecutor who allegedly intimidated a witness, “barely a teenager at the time”, into repeating a false account at trial is not immune to a pursuit. Judge Ho, dubious: Absolute immunity from prosecution is probably ‘wrong as an original question’ (as is qualified and municipal immunity), but it protects this guy (and his co-defendant, a detective) .
  • One hundred and seventy-seven people walk into a bar. They are later arrested for their involvement in a fatal shooting – at Twin Peaks in Waco, Texas – and indicted by a grand jury. Many of those arrested are now suing false arrest allegations (and, others, First Amendment reprisal allegations), alleging that officers omitted exculpatory evidence to obtain arrest warrants. District Court: Even if they did, the grand jury was an “independent intermediary” that resolved any taint. Fifth circuit: Not so fast. While the grand jury was also misled by the officers, the taint has not been resolved. Referral is necessary.
  • The man is arrested, spent four days in jail, his apartment searched and his phone and laptop seized after he created a satirical Facebook profile for the Parma, Ohio police department. His alleged crime? Using a computer to disrupt police activities. But a jury acquits (and the Internet awards the department the Censorious Asshat of the Year 2016 award). Can the man sue the First Amendment, among other things, against the officers? Sixth Circuit: Look, maybe the Facebook page was protected speech, maybe not. Hard to say. But what we do know is that there was no clearly established violation here. Qualified immunity for officers.
  • Does it violate the Eighth Amendment to house male and female inmates together? The Sixth Circuit says no, so a woman impregnated by another inmate (who had prior violent tendencies) while in a facility for seriously mentally ill inmates cannot sue Wayne County, Michigan.
  • The Supreme Court has (un)famously interpreted the commerce clause as applying to just about anything anywhere in the country, no matter how local and unrelated to commerce. But that’s technically the “internal trade clause”. There is also the “foreign trade clause”. Is it also flexible? Sixth Circuit: Fortunately, the Supreme Court never went there, so we’ll say no. And so should treaties. However, the Supreme Court possesses gone there, so this defendant who sexually abused children overseas loses.
  • In 1990, the Supreme Court ruled that mandatory bar dues (lawyer-like, not pub-like) do not violate the First Amendment. In 2018, however, the Court ruled that mandatory public sector union dues To do violate the First Amendment. Wisconsin attorney: Which means the 1990 bar dues ruling is no longer good law. Seventh Circuit: Who is above our pay grade. The Supreme Court doesn’t like lower courts to find its precedent “overturned by implication,” so your beef is with One First Street in DC, not 219 South Dearborn in Chicago.
  • In the past 30 years, a Mexican national has been expelled from the United States seven times. Hoping the eighth time will be the charm – and only 10 days after his last takedown – he scales a border fence and is almost immediately spotted by a Marine Corps unit using night vision to monitor the border. The Marines alert Border Patrol agents, who quickly arrest the man. But wait! Did the Marines violate Posse Comitatus law, which prohibits the military from assisting in civilian law enforcement? Ninth Circuit: No, the law provides exceptions for assistance authorized by Congress, and Congress in 2016 authorized the Secretary of Defense to deploy ground surveillance at the border.
  • Allegation: A Nevada inmate reports severe pain during urination, but medical officials are taking a “wait and see” approach to treatment. When he finally arrives in hospital three years later, doctors drain 14 pounds of fluid from his bladder and urinary system and, despite surgery, he now has long-term problems. Ninth Circuit: “It is true that we did not find a four-legged case with the factual background presented here.” But no qualified immunity.
  • Ravalli County, Mt. officials hand a $50,000 “offer of judgment” to the man suing them for his arrest and night in jail. But wait! Before the end of the man’s 14-day window to consider the offer, a judge rules for the county and the county withdraws the offer. Ninth circuit: no, the offer is valid for 14 days. Pay the man.
  • It is clearly stated that officers cannot tase, punch, choke or kneel on suspects after they have been subdued. But what about pepper spray? The Tenth Circuit says that is clearly established as well. So no qualified immunity for these three officers from Tulsa, Okla., including a recruit and his training officer. And the district court must also reconsider the municipal liability action.
  • Denver prohibits camping on public property, which authorities enforce through homeless camp sweeps. In 2016, a group of homeless people sued, alleging that the sweeps, which were carried out without notice and destroyed personal property, violated due process. The parties settled the case, establishing detailed protocols for enforcing the city’s camping ban. But the sweeps continued, allegedly without the protocols required by the regulations. District Court: Stop it, city. Tenth Circuit: Not only is the settlement agreement to be enforced in state court, but its terms exclude the claims brought in this lawsuit. Dissent: The city did not raise the exclusion in its appeal, and we should not raise it for them.
  • In 2015, federal contractors dumped 3 million gallons of wastewater from a former gold mine near Durango, Colorado, into a creek, turning it to mustard-yellow water downstream. You may have seen it in the news. Regardless, the Tenth Circuit says some downstream owners’ state law negligence claims were filed too late. Although their action was brought in New Mexico (where the statute of limitations is three years), under the Clean Water Act the relevant statute of limitations is Colorado (two years).
  • And in en banc news, the Fifth Circuit no longer needs to en banc review whether the single-director structure of the Consumer Financial Protection Bureau violates Article II of the Constitution and the Constitution’s separation of powers, because the Supreme Court ruled that it did, like, two years ago.
  • And in more pew news, the Ninth Circuit will reconsider its decision preliminary banning a 2019 California law that required the closure of private detention facilities in the state, including those used by the federal government (while allowing certain private establishments used by the State to remain open).
  • And in a brief amicus novella, IJ asks the Michigan Supreme Court to rule that suppressing evidence gleaned from an unconstitutional search is just as appropriate in civil code enforcement proceedings as it is in criminal proceedings. Indeed, it is the only remedy available to the defendants in the case, who could face fines of $500 a day after Long Lake Twp. officials have secretly flown a drone over their property for three years (without a warrant) to collect evidence of what they consider a public nuisance (junk cars and other objects not visible to the public ).

Victory! Last month, the North Carolina Court of Appeals unanimously ruled that a Wilmington ordinance prohibiting more than 2% of the city’s residential properties from being used as short-term vacation rentals, spread by lottery, violates state law. Which is great news for IJ clients David and Peg Schroeder, who spent $75,000 remodeling a townhouse before the city passed the ordinance and then lost the lottery. The decision is now final and this week the city council voted to reimburse more than $500,000 in fees collected while the ordinance was in effect. Read all in the Port City Daily.

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