Final decisions, accidental strip searches, and puppycide.

John Ross · February 23, 2024

New on the Short Circuit podcast: A FERC ratemaking foofaraw and 43 SWAT officers who should feel poorly about themselves.

  • When a town makes clear it won’t let you build a project on your land, how many times must you ask it to change its mind to make sure you have a “final” decision ripe for judicial review? Second Circuit: At least one more.
  • Woman allegedly hasn’t paid medical bills. A debt collector sends her info to a third-party printing service which then uses the info to send her a demand letter. She sues under the Fair Debt Collection Practices Act for sharing her info without her consent. But does she have standing? Third Circuit: Sharing her info was kind of a harm but it wasn’t a harm harm so no standing. Dissent: Standing didn’t exist until New Deal progressives made it up. Let the woman sue.
  • On her first day on the job, nurse at Prince George County, Va. jail is mistakenly strip-searched. Officer: I asked her over and over again if she was there to be taken into custody. Nurse: Definitely you did not. Fourth Circuit: Corrections employees have a clearly established right not to be subjected to body cavity searches absent reasonable suspicion. To a jury this must go.
  • Record companies sue Cox Communications for abetting copyright infringement by users of Cox’s internet service and win $1 bil in damages. Cox appeals. Fourth Circuit: Cox is liable for contributory infringement, but it can’t be held vicariously liable because it didn’t benefit directly from the infringement, so the award must be reduced.
  • If a prepaid debit card is issued under a federal COVID-19 pandemic-assistance program, administered by a state agency, and pursuant to a state-gov’t application, is the account “established by a government agency”—even if a private bank actually issues the card? Fourth Circuit: Yes. (Following a lengthy disquisition on forfeiture that may be helpful to anyone who realizes on appeal that they should probably have focused on different arguments in the district court.)
  • In 2017, Augusta County, Va. officer shoots, kills German Shepherd that allegedly was firmly tethered in yard and could not reach the officer. Fourth Circuit (2020): Case undismissed! Could be a Fourth Amendment violation. Fourth Circuit (this week): Nor should the officer have won on summary judgment given the conflicting eyewitness accounts. Vacated and remanded for jury trial.
  • Tennessee inmate believes a new state law entitles him to immediate parole, but the parole board disagrees and refuses to give him a hearing. Prisoner goes to state court, which agrees with him and orders a parole hearing, after which he’s released. Then he sues members of the parole board for violating his constitutional rights by denying him a hearing and thereby over-detaining him. Sixth Circuit: Everyone knows you can’t sue a judge for taking forever to decide a motion (contra the wishes of every litigator who has waited years for a decision), and the same absolute immunity applies to the quasi-judicial actions of a parole board.
  • Kentucky man sentenced to death for a 1985 murder seeks habeas review for ineffective assistance of counsel at the penalty phase, arguing that his lawyer failed to present any mitigating evidence. The district court denies the petition. He appeals to the Sixth Circuit (2021), which affirms the denial by a 2-1 vote. He petitions for rehearing en banc, which is also denied. Then, in the habeas equivalent of rolling a natural 20, a member of the original panel majority takes senior status, is replaced by another judge, and the panel grants rehearing. Sixth Circuit (2024): Habeas granted as to the penalty phase. Dissent (and author of the original majority): This same guy is facing death on another conviction that was part of the same crime spree, where he presented 13 mitigation witnesses. There’s no prejudice here.
  • Tennessee man suffers from Tourette’s Syndrome with coprolalia, causing him to use profanity and racial slurs. This is a problem in his job as a delivery driver, which requires him to interact with customers. The man’s employer, after making multiple efforts to accommodate his disability, eventually transfers him to a warehouse position with no contact with customers. The man sues under the ADA for disability discrimination. Sixth Circuit: “[E]xcellent customer service” skills were an essential function of the job, and it’s safe to say the racial slurs interfered with that.
  • Unionized hospital employees and the hospital fail to adopt a new collective bargaining agreement. After a bit, hospital stops deducting union dues. Union claims that’s an unfair labor practice. NLRB (2019): Actually it’s not a ULP (overruling prior NLRB precedent). Ninth Circuit (2020): Take a second look. NLRB (2022): Turns out, it is a ULP (overruling 2019 decision in the same case and readopting precedent it had overruled). Ninth Circuit (2024): We’re kinda confused about what’s going on at this point, but, sure, if you want to say it’s a ULP then it is. Concurrence: I’m getting tired of all this NLRB flip-flopping.
  • Motorist with Illinois plates is pulled over in Utah because “Illinois” is partially blocked by the frame, not the license plate numbers. While he looks for his insurance info, a drug doggie alerts on the car. When the motorist attempts to record, the officer takes away his cell phone. The motorist curses at the officer, who pulls a gun on him. $89k in cash is found in the car; the driver is arrested, and his DNA is forcibly taken. The crime? Nothing; no charges were ever filed. Tenth Circuit: Qualified immunity for all the things.
  • Oklahoma police stop car for traffic violations, search it, and discover 29 pounds of meth stashed in secret compartments (which carried a wholesale value of about $75k). The driver-husband knew, but there’s no evidence that the passenger-wife did. Nevertheless, a jury convicts her of conspiracy to distribute meth and interstate travel in aid of drug trafficking. Tenth Circuit: The prosecution needed to prove that the wife at least knew about the meth, and speculation doesn’t substitute for evidence. Convictions reversed.
  • Inmate files a grievance alleging that Alabama guard sexually assaulted him. Two other inmates corroborate the account; other guards disagree. Prison investigator declares it “not to have occurred.” In response, the accused guard charges the inmate with the disciplinary infraction of lying, despite regulations prohibiting discipline for such circumstances, and he’s found guilty. First Amendment retaliation? Eleventh Circuit: Qualified immunity. Dissent: The inmate had nothing to gain by lying and everything to lose by filing the report. Yet he spoke out and was punished, in clear violation of his right to file a grievance free from retaliation.
  • Sixteen-year-old Florida gang member is arrested on suspicion of murdering a rival drug dealer and a ten-month-old baby. After being advised of his Miranda rights and invoking his right to counsel, he is placed in an interrogation room with the suspected get-away driver, to whom he “incredulously wondered how the police had ‘the two right mother***ers.'” Naturally, he’s being recorded and is convicted. He seeks habeas review. Eleventh Circuit: Supreme Court cases are murky on when putting two suspects in a room together qualifies as interrogation under Miranda, so no habeas.
  • And in en banc news, the Fifth Circuit will reconsider its decision giving a thumbs up to a rule proposed by Nasdaq (and approved by the SEC) requiring each company on the stock exchange to disclose its’ board members gender, race, and LGBTQ+ status and to account for any unseemly underrepresentations.  
  • And in more en banc news, by a vote of 9–8, the Fifth Circuit will not reconsider its decision that Louisiana inmates held past their sentences can bring federal constitutional claims for damages after release because those claims do not challenge the validity of their conviction or the sentence actually imposed on them.
  • And in further en banc news, the Ninth Circuit will reconsider its decision that a Hawai’i law banning butterfly knives violates the Second Amendment.

Victory! Last summer, the Fifth Circuit reversed a grant of qualified immunity to Rapides Parish, La. officers who arrested Waylon Bailey at gunpoint in his garage and charged him with “terrorizing” because he posted a zombie joke on social media that ever so lightly poked fun at the police. Which is great, but overcoming qualified immunity still means convincing a jury of your peers that your rights were violated. So we are pleased to report that a jury has done just that, awarding him $205k in damages. “It is telling that it took less than two hours for a jury of Mr. Bailey’s peers in Western Louisiana to rule in his favor on all issues,” said Andrew Bizer, Bailey’s trial attorney. Click here to learn more.