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NEWSLETTER

Fragile vessels, unlawful encouragement, and an unchastened district attorney.

Los Angeles friends, come and join us on Thursday, June 30 at UCLA for a live recording of the Short Circuit podcast, plus the unveiling of our interactive study on clearly established law sufficient to overcome qualified immunity for each circuit. The event features Eugene Volokh of UCLA, Julia Yoo of the National Police Accountability Project, and Nicholas Yoka of Panish Shea Boyle Ravipudi LLP, among others. Click here to RSVP.

  • When is a pipe just a pipe—and not a pipeline? San Juan, P.R. liquified natural gas facility: When it’s only a 75-foot pipe from our facility to the power plant next door. Federal Energy Regulatory Commission: Anytime a pipe is used to receive or send out gas for use in foreign or interstate commerce it’s a pipeline. D.C. Circuit: To FERC’s jurisdiction you must submit.
  • Victor “Little Vic” Orena, former Colombo family boss whose leadership led to intra-family mob war, is serving a life sentence in federal prison. And there he’ll stay, despite deteriorating health (including apparently thinking that he’s the president of the U.S.), says the Second Circuit.
  • Following the 2018 gov’t shutdown, FBI employees sue the United States. Allegation: Had you contributed to our retirement accounts when you were supposed to, those contributions would’ve been a lot more valuable. Gov’t: Sovereign immunity! Employees: Aha, but the Federal Employees’ Retirement System Act of 1986 waives sovereign immunity for beneficiaries of our retirement plan to sue “to recover benefits.” Gov’t: Double Aha! What you’re suing about here isn’t a “benefit” but rather consequential damages stemming from our late payments. Third Circuit: The gov’t is right. No waiver. No lawsuit. (NB: A restive faction among your humble staff wishes to offer big respect to Judge Bibas for going out of his way (at page 9) to correct the Supreme Court’s failure to rigorously hyphenate its phrasal adjectives.)
  • The Constitution guarantees prisoners the right to access the courts, which includes the right to access the tools needed to file a complaint. But does that mean Pennsylvania corrections officials violated clearly established law when, the weekend before a prisoner’s trial, they refused to let him use the main law library or lend him paper copies of the Federal Rules of Civil Procedure and Evidence? Third Circuit: Going forward, prisoners definitely have a right to access the courts even after they’ve filed a complaint (it’d be “ludicrous” to hold otherwise), but qualified immunity will protect the officials here.
  • Is assault by strangulation a “crime of violence” under North Carolina law? For folks who are new to the U.S. Sentencing Guidelines rigamarole, the Fourth Circuit explains why the answer is not so simple—but also why it is yes.
  • Across the U.S., “supermax” prisoners are held in solitary confinement for 22-24 hours per day, every day, without any meaningful opportunity to enter general population. Can the officials responsible for Virginia’s solitary-confinement policy claim qualified immunity in a class-action lawsuit based on the harms caused by this long-term solitary confinement? Fourth Circuit: Negatory. We’re at the motion to dismiss stage; plaintiffs have alleged that the defendants knew the harms of long-term solitary confinement but ignored them; and “qualified immunity does not protect knowing violations of the law.”
  • North Carolina charter school: Our requirement that female students wear skirts isn’t rooted in sexist stereotypes; it’s just that women are “fragile vessel[s]” and need to be taken care of. Fourth Circuit (en banc): [blank stare]. Second dissent: I guess chivalry is dead.
  • The baroque doctrine of Younger abstention says the federal courts must decline to interfere with certain state-court proceedings. But there’s an exception for “extraordinary circumstances.” What are extraordinary circumstances? Fourth Circuit: It’s hard to say with any precision, but the district court didn’t abuse its discretion in finding extraordinary circumstances here, where there’s a paper trail strongly suggesting West Virginia launched an administrative proceeding to “shut down” an out-of-state air-ambulance provider in favor of its in-state competitor. (We explored the doctrine in some detail on the podcast.)
  • The Constitution forbids striking potential jurors because of their race. So can four individuals sue an infamous Mississippi district attorney who allegedly regularly does just that? The Fifth Circuit (over a dissent) says no; the likelihood any one of them will be called for jury service is too remote. Plus, the DA “would need to be unchastened” by previous reversals at SCOTUS and in state court.
  • Louisiana landowners miss out on a natural-gas bonanza after a bank landman inadvertently leases the entirety of the mineral rights on their land, instead of just a portion, and does so right before advances in drilling technology make the land fantastically valuable. District court: No liability for this “mistake in judgment.” Fifth Circuit: It was a mistake all right, but just the regular kind that you owe money for.
  • With prisons overcrowded, Louisiana state corrections officials work out a deal to house prisoners at local East Carroll Parish jail. Yikes! The deal doesn’t include ensuring prisoners are released on time; many are held months past their release dates. Fifth Circuit: A reasonable jury could find that the defendants failed to adopt policies to prevent delays and at least some of the defendants directly participated in the conduct that caused overdetention. No qualified immunity. Dissent: The plaintiffs’ claims are barred by Heck v. Humphrey, which prohibits civil lawsuits that undermine the validity of criminal convictions. Defendants should raise this argument on remand; they’ll win.
  • Allegation: Louisville, Ky. police fabricated evidence, withheld exculpatory DNA evidence, and coerced a jailhouse informant into giving a false statement implicating 16-year-old in 2005 murder. District court: Because she took an Alford plea, pleading guilty but maintaining her innocence, her suit against the officers is Heck barred. Sixth Circuit: The governor pardoned her; she can sue.
  • In addition to securing bank deposits, the FDIC employs agency “judges” who hold hearings, take evidence, and issue decisions that (among other things) impose hefty monetary penalties. Sixth Circuit: The recipient of one such monetary penalty argues that the FDIC’s agency “judges” enjoy unconstitutional protection from removal, but that challenge fails because, even if true, he cannot show that the removal protections caused him harm. Various other constitutional and statutory challenges also fail. Dissent: I agree that the constitutional challenges fail, but I would grant relief on statutory grounds. Also, while the petitioner did not argue that the use of agency “judges” violated Article III, it seems to me there must be some limit to the government’s ability to adjudicate penalty proceedings before agency judges. (NB: Many will recall the Fifth Circuit’s blockbuster ruling on that very topic just last month.)
  • Allegation: A and B are corporate rivals. Pretending to be a small customer rather than a competitor, B contracts with A, gets A’s product, and steals A’s trade secrets. A sues, and B invokes a clause in the contract to try to force the case into arbitration. Seventh Circuit (per Easterbrook, J., absolutely not having it): “Signing a contract with your fingers crossed behind your back does not add to your rights or subtract from anyone else’s.” A agreed to arbitrate with the made-up customer, not with B.
  • Allegation: Wynne, Ark. police officer stalks woman, parking near her home, following her around town. After she leaves the restaurant he followed her to, she is stopped by a second officer who then summons the stalker officer to the scene. She’s arrested for driving under the influence. At jail, she pees into a cup, but the results of the drug test are lost, and she can’t drive for a year (thanks to the stalker officer repeatedly seeking continuances in court) before charges are finally dismissed. Eighth Circuit: There’s no evidence the stop or arrest was at the behest of the stalker officer, so qualified immunity for him.
  • Allegation: Without warning, ICE agents shove lawyer to the ground as she followed the agents and her clients into an ICE facility. The lawyer suffers a broken foot and concussion, among other injuries. Excessive force? Eighth Circuit: There’s no case that says force used to repel someone, as opposed to force used to apprehend them, counts as a seizure under the Fourth Amendment. Qualified immunity.
  • Recall the baroque doctrine of Younger abstention? The one that says the federal courts must decline to interfere with certain state-court proceedings? Of course you do. So, is an insurance conservatorship one such proceeding? Ninth Circuit: Nope. But because the insurance conservatorship was an in rem proceeding and the federal case either in rem or quasi in rem, the equally baroque “prior jurisdiction rule” shunts these particular plaintiffs out of federal court. (Contrary to what this summary may suggest, the opinion’s not a bad read.)
  • Sitting en banc, the Ninth Circuit holds that a constitutional challenge to now-rescinded California executive orders banning in-person instruction at public and private schools in 2020 and early 2021 is moot. Dissents: The case is not moot, but there’s no constitutional violation.
  • Nicaraguan asylee has thrice been driven from his home under threats of torture and death for his political beliefs. Ninth Circuit: Those sound like very good reasons to grant him asylum. Dissent: Not under the thrice-deferential standard of review we are supposed to apply.
  • Mexican national seeks withholding of removal from the United States, but is denied because he twice “encouraged” his son to enter the United States illegally. He challenges the denial, arguing that the prohibition on “encouraging” is unconstitutionally overbroad under the First Amendment. Ninth Circuit: Not if we read it in its narrower, criminal law sense. Dissent: Well if you read it in that sense, it’s largely redundant.
  • Allegation: Fired Albuquerque police officer sues the city, seeking records related to his termination. The city sues him right back, filing counterclaim for malicious abuse of process. Unconstitutional retaliation? District court: No, because the counterclaim was a civil tort action, not a criminal prosecution. Plus, the official who told the city’s lawyers to file the counterclaim wasn’t acting under color of law. Tenth Circuit: Case undismissed.
  • Without warning, DeKalb County, Ga. officer shoots suspected child murderer (who’d been pointing a shotgun at his own chin) in the head, shoulder, and leg. Another officer removes the shotgun, handcuffs the suspect, and pins him down. A third officer pistol-whips him when he tries to sit up. Eleventh Circuit: Qualified immunity for shooting him but not for pistol-whipping him. And though a jury might find it was unconstitutional to (allegedly) wait four minutes to call an ambulance, the law wasn’t clearly established, so QI for that too.
  • And in en banc news, the Seventh Circuit will not reconsider its decision overturning a $350k jury verdict against a debt collector that tried to collect debt it knew was past the statute of limitations. Because the class representative wasn’t fooled into paying the debt and otherwise suffered no concrete injury, she does not have standing to sue. Dissental (four votes): “Anyone who has experienced financial insecurity can easily understand her injuries.”
  • And in amicus brief news, IJ is asking the Tenth Circuit to reconsider its decision allowing Denver officials to resume conducting unannounced sweeps of homeless camps. The panel reached its decision on grounds that the city did not argue and that the plaintiffs never had a chance to rebut. Which is something the Supreme Court frowns upon.

In 2018, Chaves County, N.M. Sheriff’s Deputy David Bradshaw, for reasons known only to himself, took great offense at being lawfully passed by another driver, Mario Rosales. 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. Bradshaw eventually left after another deputy arrived. And last year, a federal district court granted him qualified immunity. But, among other infirmities, the court failed to consider whether Bradshaw was acting within the scope of his authority and thus whether qualified immunity is even available to him in the first place. So this week, IJ appealed the ruling to the Tenth Circuit, including the dismissal of the claims against the sheriff, who hired and retained Bradshaw despite his history of violent behavior. Click here to read more.


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