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NEWSLETTER

So no one got qualified immunity this week. Kid you not.

Friends, civil forfeiture turns cops into robbers. How else to explain the actions of FBI agents who misled a court to obtain a search warrant and then violated the express limitations in the warrant, seizing property they had no business taking from hundreds of people? Click here to learn more about the case. Or click here for the latest brief, which alert readers may notice is somewhat redacted . . . for now. This plot will thicken.

  • Army veteran attempts to go through security at Tampa International Airport to pick up his two minor children who are traveling alone. When a swab of his hands detects possible explosive materials, he’s told he must undergo a pat-down. The man objects, citing PTSD and Military Sexual Trauma. He’s escorted away from security and hit with a $2k fine for interfering with TSA screening personnel. Veteran: I didn’t interfere; I was medically incapable of submitting to the pat-down. D.C. Circuit: You voluntarily entered security where you knew it could happen, and then you didn’t let it happen; that’s interference enough.
  • Circuit split alert: Can governments discharge Fifth Amendment just compensation awards in bankruptcy just like any other debt? The First Circuit, splitting with the Ninth, says no because, just maybe, there’s something special about debts the Constitution specifically says you have to pay.
  • Nicodemo “Nicky” Scarfo is a made man among the Lucchese La Cosa Nostra (and the son of the former mob boss of Philadelphia). Together with associate Salvatore Pelullo, Nicky stumbles on the “golden vein of deals”—a recently bankrupt mortgage company that was receiving periodic payments from its bankruptcy trust without doing any actual business. They strongarm the company’s leadership into resigning, take over, and bleed the company of $14 mil via bogus trusts, shell companies, and “consulting” arrangements—leaving 1,200 public stockholders with nothing. But then the feds found out. Nicky and Pelullo are sentenced to 30 years; two brothers they installed as special counsel and CEO are sentenced to 20 and 10 years, respectively; and all four are ordered to pay $14 mil in restitution and held jointly and severally liable for a $12 mil criminal forfeiture order. Third Circuit: All of which is fine, except for including the former CEO in the forfeiture order as he was a figurehead more than the mastermind.
  • Future historians may be interested in the following line: “Plaintiff-Appellant Michael Avenatti is a celebrity lawyer who rose to public prominence in early 2018 by representing Stephanie Clifford (a/k/a Stormy Daniels), a woman with whom then-President Trump had allegedly had an extra-marital affair.” But they’ll probably skip over the rest of this Third Circuit case, which says it was okay for the district court not to let Avenatti add a defendant just to defeat diversity jurisdiction after the suit—alleging Fox News and various Fox News personalities defamed him—was removed to federal court.
  • Remember Matthew Whitaker, that dude Trump installed as attorney general even though it was contrary to the Vacancies Reform Act and he hadn’t been confirmed by the Senate? Well, during his brief tenure he promulgated a rule redefining “machinegun” to include a rifle with a bump stock, thus making the possession of bump stocks illegal. Was Whitaker invalidly appointed, thus making the rule itself invalid? Who cares, says the Third Circuit, because Senate-confirmed AG Bill Barr subsequently ratified Whitaker’s promulgation.
  • In which the Fourth Circuit shows itself once again to be the bête noire of Younger abstention. A smashing read, for those interested in either abstention or the inherently transitory exception to the mootness doctrine. (Also, the opinion contains a horror show of allegations about West Virginia’s foster care system.) Not interested in Younger abstention or the inherently transitory exception? There’s still time to turn your life around. Read the opinion. Check out IJ’s semicentennial podcast on Younger. Skim a recent IJ brief about the inherently transitory exception. Treat yourself.
  • In 2017, owners of Sunset, S.C. farm clear 20 acres to build a wedding venue without proper attention to soil erosion and stormwater management, which adversely affects nearby properties and waterways. Can a conservation group sue to enforce the Clean Water Act even though the owners agreed to remediation measures imposed by the state in 2019? The Fourth Circuit says yes. While citizen suits are barred if a state “has commenced and is diligently prosecuting an action,” the conservation group filed suit before the action commenced. Dissent: The state had sent notice of an alleged violation before the suit was filed—that’s enough to say an action had commenced.
  • Fifth Circuit (motions panel, 2021): The FDA pulled a “surprise switcheroo” on manufacturers of nicotine vaping devices, denying them premarket approval based on the lack of longitudinal studies that the agency had previously suggested were optional, so we’re staying that order. Fifth Circuit (merits panel, 2022): There was no “surprise switcheroo”; the agency always said such studies “might” be helpful. Dissent: This is “a mockery of ‘reasoned’ administrative decision-making.”
  • Allegation: Police and jail officers assume Yazoo County, Miss. man who was hit with a metal pipe during an altercation is faking injury. So they carry him to the patrol car when he won’t walk and pepper spray him along the way. At jail, they ignore medical screening procedures, even as he urinates on himself and is in and out of consciousness during booking. They ignore his pleas for help. They ignore his family who come to the jail and tell a group of jail officers that his blood doesn’t clot normally and he could die. And they ignore other inmates who bang on cell doors for two-plus hours, trying to get him medical attention. He dies. Fifth Circuit: No qualified immunity.
  • Allegation: Unarmed, 5-foot-6-inch, 150ish-pound octogenarian raises empty hands and walks toward Michigan state troopers who pulled him over for failure to signal. (He says that’s bogus.) Without warning, a trooper takes him to ground, breaking his nose, arm, and ribs and knocking him unconscious. Sixth Circuit (unpublished): No qualified immunity. Dissent: “When faced with an unrestrained, disobedient, and aggressive (both verbally and physically) driver during a traffic stop, any reasonable officer would have been justified in using [defendant]’s arm-bar takedown—a maneuver that we have repeatedly blessed.”
  • In 2016, Columbus, Ohio officer responding to report of an armed robbery confronts two suspects and shoots one of them, a 13-year-old, dead. Officer: He was pulling a gun. Witnesses: He was not. He was turning to run. Sixth Circuit (unpublished): No qualified immunity.
  • In 2015, 5-foot, 100ish-pound teen screams at Sonoma County, Calif. officer, steps in his way as he tries to question her sister, tries to leave despite being ordered to stay, and yanks away from the officer as he tries to cuff her. A jury convicts her of resisting, obstructing, or delaying the officer. Can she still sue him for tackling her (which resulted in facial bruising, lacerations)? Ninth Circuit (2021): Nope. Ninth Circuit (2022, en banc): Yup. The Heck bar does not apply.
  • Plaintiff, a victim of a violent crime at the age of 12, successfully obtains a “U visa” because she assisted law enforcement. In 2020, an en banc panel of the Ninth Circuit holds that her husband, whom she married after applying for the visa, is eligible for derivative status—a big win on the merits. Does that mean she gets attorney fees under the Equal Access to Justice Act? Ninth Circuit (2022): Only if the gov’t position wasn’t “substantially justified.” And since a lot of judges ruled in favor of the gov’t along the way, no equal access for her.
  • Tenth Circuit: A jury might reasonably find that a Bryan County, Okla. officer was trying to incite a man when he slapped a cigarette out of the man’s hand and that the “shortage of personal space” that developed between the two after that did not justify the officer punching, tackling, and choking the man. No qualified immunity.
  • In 2018, the feds opened the Rocky Flats National Wildlife Refuge (near Denver) to the hiking public, who can now enjoy the pristine wilderness and also circumnavigate a former nuclear weapons manufacturing facility that the FBI raided in 1989, revealing some unfortunately lax practices concerning the handling of radioactive material. It’s all good now, though. Environmental groups: Is it? The Tenth Circuit says some recent changes to some trail routes are fine.
  • Plaintiffs: The Army promised our Federal Tort Claims Act deadlines would be tolled while it completed an administrative process, so we’re safe to wait until that’s done. Tenth Circuit: But your claim turns out to arise under the Suits in Admiralty Act, not the FTCA, so you’re not safe. You’re out.
  • Allegation: After trial, prosecutor fails to take steps to cancel material witness warrant she’d obtained to compel the victim of an attempted armed robbery to testify. Several months later, the victim, an Atlanta cab driver who did indeed show up to testify voluntarily, is arrested on the outstanding warrant and spends six days in jail (during which he suffers life-threatening blood clot). Can he sue the prosecutor? District court: Nope, absolute immunity. Eleventh Circuit: Reversed.
  • Eleventh Circuit (2018): “Some people . . . consider the term [‘abortionist’] pejorative. . . . Some people, however, view [the] terms [‘physician’ and ‘doctor’] as inapposite, if not oxymoronic, in the abortion context. . . . We will take a middle course and use the term ‘practitioner.'” Eleventh Circuit (2022): Abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist, abortionist.
  • And in en banc news, the Eleventh Circuit will not reconsider its decision that a prohibition on talk therapy intended to alter minors’ sexual orientation or gender expression unconstitutionally burdens speech. Curiously absent from the concurral and dissentals is any mention of the Eleventh Circuit’s recent ruling that unlicensed dietary advice receives no First Amendment protection.

In 1982, when the Supreme Court created the modern version of its qualified immunity doctrine in Harlow v. Fitzgerald, the Court relied on the work of one and only one scholar, Yale Law professor Peter Schuck. And this week, Prof. Schuck filed an amicus brief urging the Court to grant cert to correct the Eighth Circuit’s misapplication of the doctrine to shield from suit a county engineer who was playing at traffic cop. As spelled out in Harlow and reaffirmed regularly since, qualified immunity does not protect officials who are acting outside the scope of their authority, like a county engineer pulling people over without any legal authority to do so. The Star Tribune has the details.


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