Building inspectors, historic preservationists, NIMBYs, code enforcement, and the right to make contracts.

John Ross · July 29, 2022

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Atlanta criminal defense attorney Andrew Fleischman joins the panel to talk absolute prosecutorial immunity and why the Fulton County DA’s hotly anticipated prosecution of Donald Trump would almost certainly be removed to federal court (where a jury pool would have slightly different leanings than one from Atlanta). Big spoiler: It’s because of the War of 1812.

  • After a jury convicts Libyan man on four counts for his role in 2012 Benghazi terrorist attack (acquitting on another 14 counts), the district court sentences him to 22 years—despite sentencing guidelines that suggest life plus 10 years. D.C. Circuit: It’s okay that the judge didn’t sentence him based on the conduct he was acquitted of, but even setting that aside the downward departure from the guidelines is unreasonable. Judge Millett, concurring: It’s still kind of crazy we add years to people’s sentences for conduct they were acquitted of.
  • Before a federal agency issues a rule, it must go through the lengthy notice and comment process. And if an agency wants to repeal a rule it must do the same thing. But what if just before a new president takes office, an agency says it’s issuing a final rule that will become final in a few weeks, and the new administration repeals the rule before that time comes (as apparently happened in 2017, 2009, 2001, and 1993—to name just a few). Should the agency have gone through notice and comment before repealing? The majority of a D.C. Circuit panel says yes and characterizes the gov’t’s argument to the contrary to be that such a rule “exists in a state of superposition like Schrödinger’s cat—simultaneously law and not law until the agency publishes or withdraws it.”
  • Another week, another federal circuit opinion—this time from the D.C. Circuit—affirming the FDA’s decision to deny pre-market approval to thousands of vaping products.
  • Man out front of the Bronx County Hall of Justice—with a sign that reads “Jury Info” and pamphlets that say “Google Jury Nullification”—is arrested under a statute prohibiting disseminating information within 200 feet of a courthouse “concerning the conduct of a trial being held in such courthouse.” After being released, he sues under the First Amendment, winning an injunction in district court. Second Circuit: Well, first of all, the guy has standing. I mean, he was arrested. And the statute’s definitely bad as applied to what he was doing and others doing similar stuff. But it probably isn’t unconstitutional as a facial matter. Injunction vacated and case remanded. Partial dissent: The statute’s so bad it’s facially overbroad in a couple of different ways.
  • Groups managing nursing homes and assisted living facilities throughout the Northeast clash with unions representing employees at the facilities. Unions allege that the facilities engaged in a slew of unfair labor practices, such as improperly terminating employees and suppressing union communications. The facilities allege that the unions vandalized the facilities, brought on an HHS audit, and engaged in other extortionate behavior amounting to a RICO violation. District court: It’s never RICO. Third Circuit: It actually might be here.
  • Wise County, Va. prison guards and inmate get into a physical altercation following a dispute over an empty peanut-butter jar. Inmate promptly and repeatedly seeks videos of the encounter. Zoinks! Some of the videos weren’t preserved. Spoliation? District court: Don’t worry about it. The videos that exist supports the officers’ testimony. Fourth Circuit: We’re worried about it.
  • Following a trial on whether Virginia Beach’s system of at-large voting districts violated the Voting Rights Act—but before judgment—the Virginia Assembly outlawed the system. Fourth Circuit: So the case is moot. But since you’ve done most of the work you would do to challenge the new system, we’ll remand and the trial court can decide whether you can amend your complaint. Dissent: The new law didn’t fix everything, so the case is not moot.
  • For over two months and without a warrant, DHS agents constantly surveil the front and back of Houston home by means of cameras placed on poles outside. A Fourth Amendment violation? The Fifth Circuit says no; anyone strolling by could take in the same view. No need to suppress the evidence; defendant’s 18-year sentence for his part in a marijuana-growing operation is affirmed, as is the forfeiture of his home, boat, weapons, and $7.2 mil. (N.B.: For an opposing view, might we recommend this IJ amicus brief?)
  • Sabine County, Tex. deputy sheriff conducting welfare check allegedly makes a series of sexually charged comments and sexually assaults woman. She files a complaint (at least the fourth filed against him) for sexual misconduct with the Texas Rangers, he’s indicted, and she sues. District court: No constitutional violation here. Sheriff: Qualified immunity. Fifth Circuit: Both of you are very, very wrong.
  • “1-1-1!” No, that isn’t an emergency number or a Herman Cain campaign promise. It’s the breakdown of this Fifth Circuit case brought by disabled students who wanted to enjoin the Texas Attorney General’s order forbidding schools from issuing mask mandates. One judge has a lot to say about how masks didn’t give the plaintiffs standing, one judge dissents, and one judge oddly only concurs on the facts and the redressability prong of standing.
  • Guards at a Louisiana private prison empty a can of pepper spray on a prisoner and repeatedly drop him on his head before taking him to the “Four-Way,” the one corner of the prison that cameras don’t reach, for two hours. The man later dies of a skull fracture. District court: No one’s liable for nothin’. Fifth Circuit (over dissent): We review the facts in the plaintiffs’ favor. The officers used excessive force and they worked in concert to cause the injuries that killed this man. Also, both the city and corporation knew about these cruel practices, and they did nothing to stop it, so those claims survive too.
  • District court: It’s obvious that jail officers shouldn’t throw scalding water on detainees, and here are some prior cases (about chaining a prisoner to a post and choking a restrained detainee unconscious and leaving him to die) that clearly establish the law on that. Sixth Circuit (unpublished): And since there’s no video or anything that shows otherwise, we have to treat the detainee’s allegations as fact. No qualified immunity for this Grayson County, Ky, jail officer.
  • Plaintiffs: Columbus, Ohio’s Historic Preservation Code lets a small band of private citizens dictate what we do with our own property in arbitrary ways. Sixth Circuit: Actually, Columbus’s Historic Preservation Code lets a duly-appointed commission (which may—may!—even include lawyers or bankers) issue totally cool commands that you jerkwads should have just obeyed.
  • When Peninsula Township, Mich. wineries challenge local ordinances that restrict wine sales and prohibit hosting weddings, among other things, a local NIMBY group seeks to intervene in the lawsuit. The district court tosses their motion and rules that the ordinances are either unconstitutional or preempted by state law. Sixth Circuit: Not so fast. Even though the township strenuously fought the lawsuit, the NIMBYs’ interests (property values, quiet enjoyment of their homes, viability of their farms) are different from the township’s (preserving the public fisc). Let them in.
  • Can Loyola Chicago undergrad students get a refund on tuition because they were deprived “of in-person instruction and access to on-campus facilities” while COVID-19 had shut everything down? Seventh Circuit: Some of their breach of contract claims are cognizable under Illinois law and may proceed.
  • In 2021, the feds put a stop to what had been a regular July 4th fireworks display at Mt. Rushmore, denying South Dakota officials’ request for a permit due to COVID-19, wildfire risks, and tribal opposition, among other things. (And in 2022, the feds deny the permit again.) Was the denial arbitrary and capricious? We’d need a time machine to let you do the fireworks now, says the Eighth Circuit, and who’s to say whether the permit will be denied in 2023 and why? This case is moot.
  • St. Louis man guffaws at rally by then-presidential candidate Donald Trump, leading Trump to command the crowd to “Get him out of here!” He’s arrested and charged with disturbing the peace but acquitted at trial. The man then sues the police for arresting him without probable cause. Eighth Circuit: Even if they didn’t have actual probable cause, they did have arguable probable cause, and that’s enough to give everyone involved qualified immunity.
  • Allegation: 7-year-old with bruises and abrasions tells school that her father beat her with a belt. When Des Moines, Iowa detectives come to her home with a social worker, her mother declines to let them in or bring her out. After six minutes of arguing, the mother is arrested for “interference with official acts.” Eighth Circuit: The officers could either go get a warrant or look for an exigent circumstance to enter the home without one, but what they couldn’t do was arrest her. Her “passive failure to cooperate” did not even create arguable probable cause that she was interfering with an official act. No qualified immunity.
  • The Eighth Circuit‘s said it before, and it’s sayin’ it again: The St. Louis officers who rounded up scores of allegedly peaceful protestors using a kettling technique are not entitled to qualified immunity for seizing the protestors. But since the plaintiffs did not adequately allege excessive force, QI will preclude those claims. Dissent: The complaint here is almost identical to the last case, where we said no QI for excessive force. So the conclusion should be the same here.
  • Allegation: Property owner overhears Honolulu building inspector say that he’s causing costly delays to renovation project because the owner hired non-Hawaiian contractors. Unconstitutional interference with his right to make contracts? Could be, says the Ninth Circuit. Even if the delays were justifiable, the right to be free from racial animus in public decisions is clearly established. No qualified immunity. (N.B.: Interested readers might note that the suit proceeds under Section 1981, and that at least 10 other circuits say that Section 1981 provides no private right of action for damages against state actors.)
  • Washington law prohibits displaying a weapon in a manner that “warrants alarm for the safety of other persons.” So did police have probable cause to arrest a Yakima County man after receiving reports that the man displayed a firearm? Ninth Circuit: Not in an open-carry state like Washington. The officers should have confirmed whether he displayed the weapon threateningly or alarmingly. All evidence found after the arrest (including an IED in the man’s car) are suppressed.
  • Are Twitter or Facebook pages maintained by public officials public fora under the First Amendment? The Ninth Circuit weighs in on this fast-growing doctrinal area (the answer is “sometimes”) but fails to acknowledge the really thorny question: the brewing circuit split over whether they’re “public fora” or “public forums.”
  • Allegation: Man convicted of sex offense at retrial is sentenced to a minimum of 10 years, which he has already served. Which means that under Washington state law, he’s to receive a parole hearing within 120 days. But parole board members blow that deadline by nine months. (The hearing ultimately results in his release.) Negligence? False imprisonment? Ninth Circuit: Can’t say. Parole board members are quasi-judges and thus protected by absolute immunity.
  • Allegation: Man forgets to remove belt, sets off Jackson Hole, Wyo. airport body scanner. TSA agents refuse to let him take off the belt and go through again, insisting instead on a groin pat, which the man equally insists he does not consent to. He’s arrested by local police, one of whom says that his stay in jail (which ultimately lasted three hours) is being prolonged because he keeps asking for a lawyer. Tenth Circuit: Drawing all factual inferences in favor of the plaintiff, as we must at this stage of the case, the gov’t says that’s not why his stay was prolonged. Case dismissed. And furthermore, his claims against the municipality (which he pursued without amending to the district court’s satisfaction) are so meritless that $55k sanctions against him and his attorneys are merited. (IJ filed an amicus brief arguing the sanctions aren’t merited.)
  • Moreover, holds the Tenth Circuit (same case as above), there is no prior case clearly establishing that an officer wrenching a handcuffed person’s wrist, injuring it, without provocation and in retaliation for their speech, would “chill a person of ordinary firmness” from continuing to engage in protected speech. (Nor is there such a case now.)
  • In response to a shooting spree that injured several children, Ocala, Fla. police chief—along with volunteer police chaplains—help to organize and sponsor a prayer vigil in the town square. Humanists and atheists attend the vigil and then sue, alleging Establishment Clause violations. Eleventh Circuit: And they have standing. But while this case was on appeal the Supreme Court killed the Lemon test that previously governed, so we’ll send this back down for reconsideration.

“He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance.” Anyway, apropos of nothing, we really can’t recommend this longform article on abusive code enforcement by Radley Balko in the Nashville Scene enough. Nashville is bad. Memphis is bad. Lots of other places are bad. It is bad to eat out people’s substance.