Acts of state, hedonic damages, and bang-bang commands.

John Ross · April 1, 2022

New on the Short Circuit podcast: You win a judgment against the government on a constitutional claim, and then the government just doesn’t pay up and says you can’t make it. In America.

  • Under Brazil’s Mais Médicos program, the country hires foreign doctors to bolster its medical services for poor Brazilians. Cuba, in turn, rounds up Cuban doctors and ships them out, allegedly without their consent and in violation of human trafficking laws. Four doctors escape to the U.S, where they sue the Pan American Health Organization (PAHO) for handling the money through its Washington, D.C. bank account. PAHO, for its part, claims immunity under the Constitution of the World Health Organization, which entitles it to the “privileges and immunities as may be necessary” to carry out WHO functions. D.C. Circuit: But those privileges and immunities were supposed to be spelled out in a separate agreement, which never happened. So the case goes forward.
  • Is the Speaker of New Hampshire’s House of Representatives unlawfully discriminating against state reps who are especially vulnerable to COVID-19 by barring them from participating in proceedings remotely? First Circuit (sitting en banc): Can’t say. The Speaker is entitled to absolute legislative immunity. Dissent: The point of legislative immunity is to protect legislators’ ability to discharge their duties, which is not accomplished by forcing them to choose between those duties and a significant risk of death.
  • Friends, do please enjoy this week’s vocab quiz: cergestrate, bisanguinous, three-step crazado, and pelltroon. Brought to you by Judge Selya of the First Circuit.
  • Shi’a man alleges he was abducted by the Taliban (who are Sunni) and forced to cook, clean, wash clothes and, on one occasion, fight. He escapes and is granted asylum in the U.S. in 2000. But in 2016, the feds decide he cannot become a permanent resident because, among other things, he used a weapon. Second Circuit: Okay, but there are some elements to the “weapons bar,” and the feds didn’t adequately explain in 2016 how those were met, and they can’t just check those boxes now. Lots of other issues to sort out on remand.
  • U.S. residents with ties to Haiti sue the Haitian government and several multinational corporations, alleging that they conspired to fix the prices of remittances and telephone calls from the U.S. to Haiti. The district court dismisses the case under the “act of state doctrine.” Second Circuit: Which was improper. The act of state doctrine prohibits courts from declaring foreign government acts invalid. It doesn’t prohibit them from declaring foreign government acts wrongful under valid U.S. cause of action.
  • Third Circuit: A student expelled from Princeton after his ex accused him of sex abuse plausibly alleged that the university discriminated against him on the basis of his sex. Case undismissed.
  • Macon County, N.C. sheriff’s deputy shoots into home from porch, killing man who had just racked a shotgun. Fourth Circuit (over a dissent): No qualified immunity. It’s disputed where the man was pointing the shotgun and whether he knew the deputy was law enforcement. And some of the state-law claims should not have been dismissed either.
  • In the Zen tradition, indecipherable koans like “what is the sound of one hand clapping” are meant to lead us to greater truths about the universe. In that spirit, the Fourth Circuit confronts the question “can a prisoner’s criminal history be held against him if he has no criminal history” and, having achieved true enlightenment, says no.
  • Williamson County, Tex. prosecutors lie to defendant during plea bargaining, tell him they have damning evidence that will put him away for life if he goes to trial. He pleads guilty. Yikes! There was no such evidence, and his conviction is vacated decades later. Can he sue the county over the district attorney’s “closed-file policy,” which allowed prosecutors to withhold evidence before trial? The Fifth Circuit says no. The policy may have enabled the prosecutors to lie, but he hasn’t shown it caused them to lie.
  • After exhausting all state appeals, man convicted of murder seeks habeas review, alleging ineffective assistance of counsel. During closing argument, defense counsel sneezed 27 times during his 60-minute closing argument. Sixth Circuit: Indeed, counsel’s failure to take a non-drowsy antihistamine—despite knowing he suffered seasonal allergies—materially prejudiced defendant’s right to a fair trial. Retry him or let him go!
  • Allegation: After Nashville police officer is exonerated of child abuse (and the Cheatham County, Tenn. investigator who caused her indictment resigns in disgrace), she continues to face a baseless internal affairs investigation, during which she is pressured to accept a demotion. Sixth Circuit: Her state-law malicious prosecution claims survive state-law qualified immunity (which is pretty much the same as federal QI), and defendants’ arguments to the contrary range from tenuous to more tenuous.
  • Allegation: Pretrial detainee tells Butler County, Ky. jail officials he’s concerned for his safety because other detainees think he’s a snitch, and sure enough he’s knocked unconscious and suffers a broken jaw soon after. Can he sue a guard? District court: No. Sixth Circuit (over a dissent): Yes.
  • Allegation: After attempting to rob a gas station, man flees, crashes his vehicle. He exits and attempts to comply with Indianapolis officers’ conflicting commands. They shoot him as he reaches for his ID. (He survives.) Seventh Circuit: To a jury this must go. No qualified immunity.
  • A Kansas inmate’s claim that he was put in solitary in retaliation for filing a lawsuit should not have been dismissed, says the Tenth Circuit; but there is no constitutionally protected interest in jailhouse lawyering, so his claim that he was put in solitary for helping others with their suits can’t go forward. Also dismissed (because of pro se pleading problems): His claims that his cell was teeming with roaches for over two months and that the cell was constantly lit, causing sleep deprivation.
  • Circuit split alert! If you force a person to withdraw money from their bank account, have you robbed the bank (a federal crime) or just the person (not a federal crime)? Seventh Circuit (2005): The bank. Fifth Circuit (2005): The person. Tenth Circuit (this week): Bank.
  • Denver officer orders homeless man to crawl out from behind some bushes, tases him seconds later as he walks out instead. District court: No qualified immunity. The officer didn’t give him a chance to comply with his “bang-bang commands.” Tenth Circuit: That finding is “blatantly contradicted” by the video. Reversed. (The man’s claims against the city live to see another day, however.)
  • Transgender woman applies for asylum in the United States, alleging past persecution in Honduras from her uncle’s abuse and fear of future persecution from pervasive discrimination and violence against transgender women in Honduras. An immigration judge denies asylum and the Board of Immigration Appeals dismisses an appeal. Tenth Circuit: No doubt her uncle is a monster, but he seems to be that way to everyone. So there’s no asylum based on past persecution. But “any reasonable adjudicator” would find a pattern or practice of persecution against transgender women in Honduras. Partial dissent: What are you guys trying to say?
  • Christian evangelist sets up shop on a sidewalk on the University of Alabama campus, but is asked to leave because he doesn’t have a permit. He sues, seeking a preliminary injunction, but the injunction is denied because the Eleventh Circuit holds that this particular sidewalk is a limited public forum. Following discovery and a loss on the merits, the evangelist argues the sidewalk is actually a traditional public forum because it is owned by the City of Tuscaloosa. Eleventh Circuit: Well, the government owns all the property subject to forum analysis, so that ain’t it.
  • Serial ADA plaintiff alleges that she suffered “frustration and humiliation” while using a hotel website whose booking system did not list information about rooms’ accessibility features. She also alleges that she plans to visit the website in the future, though admits she has no intention of actually staying at the hotel or even visiting the area in which it is located. The district court dismisses for lack of injury-in-fact. Eleventh Circuit (with separate concurrences by all three judges!): Which was a mistake. The plaintiff has properly alleged a stigmatic injury, though the district court can, of course, hold an evidentiary hearing to determine if that claim is credible and if the other standing requirements are met.
  • And in en banc news, the Fourth Circuit will not reconsider its decision rejecting a constitutional challenge to the NSA’s purported spying on Wikimedia’s internet communications.
  • And in further en banc news, the Ninth Circuit will not reconsider its decision upholding a $3.6 mil jury award (part of a total $13.2 mil award) to the family of a man killed by Anaheim, Calif. police for post-death “hedonic” damages—that is, the lost pleasure the man would have gotten out of life. Dissents: California state law (like 44 other states) prohibits such awards, which also weren’t authorized at common law. They shouldn’t be available in Section 1983 suits.
  • And in amicus appearance news, next week IJ will argue to the Michigan Supreme Court that it violates due process for the state’s trial courts to depend on court costs generated from convictions to keep the lights on and their staffs paid. On average, a quarter of Michigan trial courts’ funding comes directly from convictions. Some courts even turn a profit for their local city or county. As one judge put it, Michigan trial courts are seen as the “cash cow of local government.” Click here to read the brief.

Friends, only a mere three weeks ago we told you about IJ’s challenge to an Idaho law barring African-style hair braiders from earning a living doing their craft unless they first obtained an irrelevant and expensive beauty school credential. This week, Gov. Brad Little signed a bill that was unanimously passed by the legislature and that makes Idaho the 32nd state to free the braiders from cosmetology licensing laws—using language from IJ’s model braiding bill. Huzzah! “Braiders deserve economic liberty in all fifty states and we’ll keep standing up for natural braiders until braiding freedom is a reality nationwide,” says IJ Senior Attorney Dan Alban. “No one should have to hire a lawyer or a lobbyist just to earn an honest living.” Click here to learn more.