Dishwashers, Nazi-looted art, and an ag-gag mixed bag.

John Ross · January 12, 2024

Next week, the Supreme Court will hear oral argument in an IJ case, DeVillier v. Texas, that asks the question: Do states have to comply with the Takings Clause? Or is it more of a guideline than an actual rule? Click here to learn more.

  • Man spends 13 years in prison for a murder in Harrisburg, Penn. he did not commit. He alleges that the prosecutor wholly fabricated a motive for the murder by enlisting the false testimony of a jailhouse informant well-known (and even convicted) for making up police statements. Prosecutor asserts absolute immunity, saying that preparing evidence for trial is a prosecutorial act. Third Circuit: Nope, though it’s “a close call.” Finding witnesses is an investigative act just like a police officer would do, even if it’s after charges have been filed and while preparing for trial. No absolute immunity. Dissent: Developing evidence for trial is absolutely a prosecutorial function, and our circuit’s various precedents on this contradict each other.
  • South Carolina police interrogate a 16-year-old and a 19-year-old suspected of sexual assault and robbery. They confess, are arrested, and are held in jail for more than 300 days before DNA evidence links a third man to the assault. Eventually, the charges against them are dismissed, and they sue the arresting officer on a variety of constitutional claims. Fourth Circuit: All but one of which fails; the 19-year-old’s claim that his confession was coerced can go forward.
  • Officer of the Harris County, Tex., Constable’s Office tases gentleman during traffic stop. Gentleman: I was complying with all the officer’s orders, so the tasing amounted to excessive force. District court: Yeah, based on the video footage of the incident, a jury might agree with you. Fifth Circuit: Indeed.
  • Louisiana man is kept in prison 41 days after his release date, part of a plague of “inexplicable and illegal over-detention in Louisiana prisons.” Can he sue the head of state corrections? Fifth Circuit: Yup, we’ve said as much in other cases. J. Jones, concurring: But we were wrong! Because he didn’t first file a petition in state court seeking his release, he contributed to the very overdetention he complains of. We should go en banc. J. Duncan, concurring: But we were wrong! He needed to show that the precise paperwork mishap in his case (as opposed to the litany of other mishaps resulting in overdetentions) is itself a plague. We should go en banc.  
  • Why does your dishwasher not wash dishes? Could have something to do with some rules the Fifth Circuit found arbitrary and capricious, which repealed previous rules, which changed other rules, which may have been bad for getting dishes clean.
  • Sixth Circuit: No qualified (or sovereign) immunity for UMich-Dearborn police dept. or officials for suspending cop who leaked alleged coverup of a student’s sexual assault allegation. The whistleblowing was protected private speech, so the suspension was clearly-established retaliation.
  • Detroit man spends more than 20 years in prison for a 12-year-old girl’s murder—a crime he did not commit. Indeed, another man’s fingerprints are on the murder weapon, and the defendant’s confession (which got the cause of death wrong) followed a detective’s telling him he could go home after signing it. Once he’s released, he sues the involved officials who, as you might expect, invoke qualified immunity. Sixth Circuit: To trial the malicious-prosecution claim—and others—shall go!
  • A Chicago alderman (and member of the Daley family) takes out $219k in a series of irregular loans from a bank in his ward. When the bank fails, the FDIC takes over, seeks to recoup the money the bank was owed. The alderman insists that he’d borrowed $110k. He’s convicted of lying to the FDIC. (Now-former) alderman on appeal: I didn’t lie, you see, because it is true that I borrowed $110k (the amount of the first loan)—even if I later borrowed more! Seventh Circuit: Conviction affirmed.
  • An ag-gag mixed bag. The Eighth Circuit allows a challenge to move forward against Iowa’s ban on “trespass-surveillance,” designed to keep animal welfare groups from getting jobs at agricultural facilities and recording instances of animal cruelty (though the court holds the law is not facially unconstitutional). In a separate decision, the court holds that the state’s ban on lies to secure employment at the facilities—at least where the truth would have led to not getting the job—is 100% constitutional.
  • Can the State of Missouri sue China for COVID-19? Eighth Circuit: We agree with the district court that most of the Show-Me State’s claims are jurisdictionally barred by the Foreign Sovereign Immunities Act. But one claim can proceed—the one asserting that China hoarded personal-protective equipment (e.g., masks) and then sold lower-quality stuff to the United States. Dissent: That claim should be dismissed as well.
  • Allegation: Woman holds threatening home intruder at bay with firearm, calls 911. A St. Louis police officer (who’d gotten conflicting reports about who’s threatening whom) arrives, does not announce himself, and shoots the woman nine times in the back, paralyzing her. Officer: She pointed the gun at me! Woman (whose husband and father are cops): No, I didn’t. Eighth Circuit (over a dissent): Doesn’t matter. Qualified immunity.
  • Camille Pissarro’s 1897 oil painting Rue Saint-Honoré, dans l’après-midi. Effet de pluie (Rue Saint-Honoré in the Afternoon. Effect of Rain) currently resides at the Museo Thyssen-Bornemisza in Madrid, but until 1939 resided in the private collection of the German Jewish Cassirer family. When the descendants of that family sued to recover the painting as Nazi looted art, the Ninth Circuit previously ruled that, under federal choice-of-law rules, Spanish law governed, and the painting belonged to the museum. But the Supreme Court reversed, holding that the court should have applied California choice-of-law rules. Ninth Circuit (2024): Same result under California choice-of-law rules.
  • California woman’s cellphone battery dies and she’s unable to verify whether the Uber that was summoned on her behalf is indeed the correct one. Yikes. The driver is an imposter who sexually assaults her. Is Uber liable? Ninth Circuit: We ask the state supreme court to weigh in.
  • Under Ninth Circuit precedent (that the Supreme Court may be about to review), cities can violate the Eighth Amendment if they forbid the homeless from sleeping in public places if they have nowhere else to go. Is that the case in San Francisco? Ninth Circuit: Sure looks like that, plus the city really screwed the pooch in preserving its arguments on appeal. Preliminary injunction upheld. Dissent: Yo SCOTUS! Here’s some notes.
  • Tampa, Fla. area transport agency doesn’t allow religious ads on its property and vehicles. It claims that this speech might, among other things, make its employees sad. A Jewish group asks to run a “Chanukah on Ice” ad which included a menorah. It’s told maybe the ad would work, but the menorah’s gotta go. First Amendment violation? Agency: Hey, it’s a nonpublic forum and viewpoint neutral. Eleventh Circuit: That’s a quite a thicket to work out. We’ll just say your current policy isn’t a workable standard. J. Newsom, concurring: The policy is unconstitutional six ways from Saturday (get it?). But let me ask you this: What is “religion,” anyway?
  • Man declines Santa Rosa County, Fla. officer’s request to leave his porch to speak inside a patrol car. Instead, the man returns to his house—and the officer tackles him through the front door where a “physical conflict” ensues, herniating disks in the man’s neck. District court: Qualified immunity. Eleventh Circuit (2019): Nay, the officer needed a warrant to enter the home, which is a bright constitutional line. Following trial, a jury awards the man $625k for his injuries. But the district court once again determines the cop is entitled to qualified immunity and sets aside the verdict. Eleventh Circuit (2024): Nay, the jury determined that the officer initiated the arrest outside of the home and then entered it without exigent circumstances. The law is clear that this required a warrant, and the jury verdict is reinstated.
  • There’s a lot going on in this retaliatory arrest case arising out of Florida, but we’re just going to skip to the information we know is of greatest interest to our readers in the Sunshine State: If you’ve been arrested for disorderly conduct “based on cursing, flipping the bird, [or] crotch-grabbing,” the Eleventh Circuit has your back.
  • After Florida Governor Ron DeSantis suspended state attorney Andrew Warren and replaced him with a political ally, Warren sued, alleging First Amendment retaliation. The district court holds that DeSantis would have canned Warren regardless. Eleventh Circuit: Take another look at that. J. Newsom, concurring: “[F]or the same reason that the government can’t muzzle so-called ‘conservative’ speech under the guise of preventing on-campus ‘harassment,’ … the state can’t exercise its coercive power to censor so-called ‘woke’ speech with which it disagrees.”
  • And in cert denial news, this week the Supreme Court took a pass on S.B. v. Jefferson Parish, leaving in place Fifth Circuit precedent that bars victims of excessive corporal punishment from bringing constitutional claims against school employees. True story: Half of all reported physical violence against children by public-school officials takes place in Louisiana, Mississippi, and Texas.

The Institute for Justice is now interviewing talented law students from across the country for our summer fellowship program: the Dave Kennedy Fellowship. Students are hosted in Arlington, Miami, Austin, Phoenix, and Seattle. The program offers law students an unparalleled professional opportunity to substantively contribute to active and future strategic litigation in both state and federal courts. During your summer with us, you would have the opportunity to work closely with IJ attorneys to develop litigation strategies and assist in the nuts and bolts of cutting-edge civil rights litigation, including drafting motions and briefs, crafting discovery requests, and preparing for hearings. The fellowship is a paid opportunity—offering $8,000 for the 10-week program—and generally runs from the last week of May through early August. Applications are due by January 26th and offers will be made on a rolling basis. For more information, click here.