Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
This week, the DOJ announced that the DEA will cease its “cold consent encounters” at airports, during which agents demand to search people’s bags while telling them things like, “I don’t need your consent.” The suspension coincides with an inspector general report condemning the practice. “We welcome DOJ’s suspension of this program as a first step,” says IJ Senior Attorney Dan Alban, “but policy directives can be changed at any time, under this or future administrations. We call on Congress to pass the FAIR Act to permanently reform federal civil forfeiture laws.” In the meantime, IJ is currently suing the DEA and TSA over their airport seizure and forfeiture practices.
New on the Short Circuit podcast: Wisconsin appellate attorney Joseph Diedrich explains the ins-and-outs of the Rooker-Feldman doctrine amidst a most Seventh-Circuity Seventh Circuit en banc decision.
- In ordinary circumstances, we would assume this First Circuit opinion’s description of the Lizzie Borden story as “grizzly” was just a typo. But since this is a Judge Selya opinion, we expect it was instead a deliberate word choice meant to convey that the age-old story has gone a bit gray. (Bonus vocabulary words include “pellucid,” “exigible,” and “rescript.”)
- Caldwell County, Tex. has a policy of categorically excluding the press and the public from observing criminal pretrial proceedings commonly referred to as magistrations, at which the accused is informed of the charges against him and the rights to which he is entitled. Does this violate the First Amendment right of access to judicial proceedings? Fifth Circuit: Applying the “experience and logic” test, it sure seems to. Preliminary injunction affirmed.
- Texan meth and fentanyl importer pleads guilty in 2022 and receives a “career-offender enhancement” at sentencing. He objects because his prior marijuana convictions wouldn’t have been “controlled substance offenses” after 2018 reforms. Fifth Circuit: We agree, and thus also agree with three other circuits.
- We won’t go too deep into this half-decade, four-Fifth-Circuit-opinion death march of a lawsuit over whether the City of Jackson or the State of Mississippi gets to control the governance of the Jackson-Medgar Wiley Evers International Airport. But we do wonder whether the Article III standing issue that finally put the kibosh on the case this past week could quite easily have been addressed in the first appeal—five years ago—with a little assist from 28 U.S.C. § 1653. If that piques your interest, we won’t deprive you of the joy of going down that rabbit hole yourself. If it doesn’t, well, just keep swimming.
- Ohio woman seeks approval to collect signatures for a ballot proposal to amend the Ohio Constitution to eliminate gov’t immunities in certain state-law causes of action. The Ohio Attorney general refuses—eight times—to approve the summary of the proposal on the grounds that it is not “fair and truthful.” So the woman turns to federal court. The district court denies a motion for preliminary injunction, the Sixth Circuit reverses, and then the en banc Sixth Circuit grants rehearing, vacating the panel ruling. Sixth Circuit (en banc): And now all that work is wasted because the election has passed and the request for a preliminary injunction is moot. But the case can move forward on the merits. Dissent: That’s silly; we can grant an injunction for the next election.
- Ohio prison guard is fired, and her union refuses to seek arbitration on her behalf. So you know she must have done something pretty, pretty terrible. Sixth Circuit (unpublished): Yup.
- What do you get when you combine a routine traffic stop with the driver’s criminal history, several air fresheners in the car, driving from a job interview, and the driver’s movements while looking for proof of insurance? Knoxville, Tenn. drug interdiction officer: Reasonable suspicion of drugs that justifies prolonging the stop to request a drug dog? (Which reveals an illegal gun but no drugs.) Sixth Circuit: No! And no good-faith exception. Evidence of the illegal gun should have been suppressed. Reversed and remanded.
- An indigent criminal defendant has a right to a public defender for many aspects of the criminal process, but not necessarily for all aspects. For example, what about an appeal of a denial of the reduction of a sentence based on certain retroactive amendments to the U.S. Sentencing Guidelines? Seventh Circuit Judge #1: Is this an advisory opinion? Judge #2: I think we can appoint one, I mean we’ve done it before. Judge #3: The text says no.
- Allegation: Missouri inmate fills out form saying he feels threatened by another inmate, which means he’s not supposed to be left alone with that inmate. Nevertheless, a week later, a guard puts that inmate in a cell with him while he’s sleeping. The inmate attacks him. Can he sue the guard under state law? District court: Quite possibly. Eighth Circuit: Reversed. The guard enjoys official immunity, and while he may have had a duty to check those forms that doesn’t mean he had a duty to do it.
- Minnesota landlord can’t evict terrible tenants during the COVID-19 pandemic due to a moratorium, so he sues the responsible state officials with various constitutional claims. The district court dismisses them all. Eighth Circuit (2022): Actually, you’ve pled Contract Clause and Takings Clause claims! Here’s some careful analysis with lots of citations. Good luck on remand! District court: I’ll allow another motion to throw out the claims, and this time you lose on Eleventh Amendment immunity. Eighth Circuit (2024) (unpublished): Affirmed.
- Detainee at Davis County, Utah jail is withdrawing from meth, falls from top bunk. A nurse wheelchairs her to another cell and leaves her there unmonitored without checking her vitals. She has another fall and ruptures her spleen. She dies. Turns out the jail has no protocols or training for nurses—for anything. Tenth Circuit: No need to disturb the jury’s $3.85 mil verdict against the county for violating the U.S. Constitution nor its additional $3.85 mil and $2 mil verdicts for violating the Utah Constitution.
- Thirteen-year-old boy picks up a neighbor’s ball that’s in a ditch across the street from her house and plays with it; she angrily demands it back. He curses at her, flips her off, and flips the ball to her. The neighbor calls the police. A Martin County, Fla. officer finds the boy nearby. The boy declines to give his name or remove his hand from a pocket. (Turns out he has a pocketknife.) The officer tries to handcuff him, but he pulls away. The officer (250 lbs.) picks him (120 lbs.) up and body slams him, fracturing his skull, shoulder blade, collar bone, and ribs, and also causing permanent brain injury. Officers then ask an underage witness to lie and say the teen was menacing the officer with the knife. (The teen is prosecuted but acquitted.) Teen: It’s clearly established that you don’t body slam a suspected nonviolent misdemeanant in these circumstances. Eleventh Circuit (unpublished): Qualified immunity.
- And in state supreme court news, Oregon considers whether there is a double-jeopardy problem if prosecutors convict a woman of a crime and obtain a $50k criminal forfeiture from her, and then file a civil-forfeiture suit to try to take her house, too, based on the same underlying crime. Oregon Court of Appeals: Yes, especially because Oregon has reformed its civil-forfeiture laws to generally require a conviction, making clear that civil forfeiture here is punitive. Oregon Supreme Court: Wrong, that double-dipping is totally fine. (IJ wrote an amicus brief urging a different course.)
New case! After two Escambia County, Ala. school board members criticized the superintendent, the district attorney and county sheriff (political allies of the superintendent) retaliated, seizing their phones and opening a bogus investigation. And then, after a local journalist wrote about the investigation, the sheriff and DA arrested four innocent people (the two board members, the journalist, and the school board’s bookkeeper) on bogus felony charges. (The charges were immediately dropped with prejudice after the DA admitted he had personal and professional conflicts and turned the case over to the state.) This is unconstitutional, and we look forward to punching back (against prosecutorial immunity, qualified immunity, and municipal immunity). Click here to learn more.
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