Florida riots, MAGA hats, and an eyeball tasing.

John Ross · January 13, 2023

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

Mandatory, warrantless inspections of rental properties are wildly invasive and ripe for abuse, no matter officials’ purported intentions. So writes IJ attorney Rob Peccola in the Chicago Tribune, advising the city’s aldermen to vote down a proposed rental inspection law. Indeed, in December, a federal judge signed off on a consent decree in nearby Zion, Ill., that protects renters and landlords from the same kind of regime that is now proposed in Chicago.

  • Can someone check on Judge Selya? He hardly used any obscure vocabulary at all in this opinion for the First Circuit, which holds that the so-called “stash-house enhancement” may be imposed in situations where the stash house is also the defendant’s residence.
  • Under Virginia tort law, is a taser trainer vicariously liable to a trainee (a Virginia Beach police officer) whose eyeball was tased by another trainee? Fourth Circuit: No. Virginia has not recognized the sort of “special relationship” between trainer and trainee that might support vicarious liability. Then again, this particular trainer may have been negligent in his own right. So the eyeball-tased trainee’s general-negligence claim may proceed.
  • Allegation: Austin, Tex. teen wears a MAGA hat, a Ted Cruz shirt, and brings an Antonin Scalia poster to school, after which he is relentlessly bullied by other students and faculty. He sues the school district under Title VI for being deliberately indifferent. Fifth Circuit: But he wasn’t bullied for his race, color, or national origin—he was bullied for being a Republican—so case dismissed.
  • Exxon polypropylene production plant in Baton Rouge, La. requires operators to undergo extensive training. A Black trainee is fired after, he says, receiving only two days of training on certain skills which a white trainee (who passed) received over two weeks. District court: One can’t sue over inadequate training under Title VII. Fifth Circuit: One can, but (over a dissent) his training and opportunities actually paralleled the successful trainee, so no discrimination here.
  • With warrant, Cleveland police search suspected drug dealer’s house. Out on the street, an officer peers into the tinted windows of a car suspected to be the suspected dealer’s—but not mentioned in the warrant—and sees what he suspects is a “bag of dope.” Officers tow the car but don’t get a warrant. Turns out it, indeed, was “dope.” Was the search constitutional? Sixth Circuit: Only evidence the officer had for probable cause was a hunch. That’s not enough.
  • Is the President’s executive order regarding federal contractors and vaccinations for COVID-19 a proper use of the Federal Property and Administrative Services Act of 1949? Sixth Circuit (Motions Panel, January 2022): Likely no. Sixth Circuit (Merits Panel, January 2023): Still likely no. But preliminary injunction narrowed to only the parties in the lawsuit.
  • Man contacts his ex-wife after he shows up for a scheduled visit with his daughter and finds no one home. The ex-wife contacts police and tells them that she has a protective order barring her ex-husband from contacting her. A Schererville, Ind. police officer looks up the protective order, which does not bar communication between the two. Uh oh! The officer lies to a judge and claims that the order does bar communication! The judge issues an arrest warrant, and the officer arrests the man, who spends 10 days in jail before all charges are dropped. Seventh Circuit (unpublished): No qualified immunity.
  • Allegation: Guards beat up Illinois inmate, falsely accuse him of assault; he’s sent to solitary for 90 days. State corrections board: Ah, but you filed your grievance through your lawyer, which regulations do not permit. District court: And so you can’t sue in federal court. Seventh Circuit: The regulations say grievances must be sent directly to the board, not personally to the board. Undismissed!
  • Black, female Chicago police officer reportedly drives away from scene of burglary before being ordered to turn around and go to the scene. Supervisor files internal complaint: Her behavior reflected inattention to duty. After six years of investigations, the officer is exonerated, at which point she sues the city. Claim: The supervisor had a history of making racist comments, and he filed the complaint based on my race and sex. Seventh Circuit (unpublished): Even if that’s true, there’s no Title VII violation because there’s no evidence that the countless layers of internal review were similarly racist, which breaks the chain of causation.
  • Wearing a seat belt is mandatory in Illinois. Unrelatedly, the Seventh Circuit (unpublished) says there’s no intolerable risk of harm from not wearing a seat belt and Illinois prisoners have no clearly established right to one.
  • Man suspected of domestic violence sits alone on the bathroom floor and declines to show hands or stand up. A Yavapai County, Ariz. officer tases him twice, pepper sprays him in the face twice, and drags him from the bathroom, cutting his face. District court: No qualified immunity. Ninth Circuit (unpublished): Indeed, a jury could well find the force excessive.
  • Short-sighted cynics may say that the Rooker-Feldman doctrine is a vestigial embarrassment from a bygone era, but just watch as this Tenth Circuit panel uses the doctrine to dismiss a case that, without Rooker-Feldman, would have been dismissed on estoppel grounds for basically the same reasons.
  • The Congressional Review Act allows the Senate to vote on whether to repeal agency rules without needing to invoke the Cloture Rule (the supermajority in filibusters). One use of the CRA in 2017 repealed the Stream Protection Rule. Plaintiff environmental groups: We have standing, and both the CRA and the Cloture Rule are unconstitutional. Tenth Circuit: You do have standing, but only for the CRA. And about that—it’s totally constitutional. There’s bicameralism and presentment and no class is disadvantaged.
  • Allegation: In retaliation for inmate (a serial litigant) filing grievances, Colorado prison guards knock him down while he’s handcuffed and anklecuffed, causing further injury to his untreated broken jaw (which is surgically repaired over a year later). District court: He can’t sue the officers for causing him emotional distress because the physical injuries he says caused the distress are not severe enough. Tenth Circuit: Reversed.
  • The Civil Asset Forfeiture Reform Act of 2000 provides that prevailing parties get an award of reasonable attorneys’ fees and costs. Colorado man defends against action to forfeit $114k, gets $93k back after trial. Man’s attorneys seek $520k in fees. District court damns them with faint praise (“relatively modest skillset”) and active criticism (“frivolous legal work”) and awards only $133k. Tenth Circuit (unpublished): The district court did not abuse its discretion, though a few specific travel expenses might need to be reconsidered.
  • In response to the George Floyd protests of 2020, Florida enacted a new definition for the crime of “riot.” Groups that regularly stage protests challenge the new definition as unconstitutionally vague and overbroad. Eleventh Circuit: That depends entirely on what this new law means, and since it’s never been interpreted before, we’re going to certify to the Florida Supreme Court in the hopes they can clear that up.
  • And in en banc news, the Third Circuit will reconsider its opinion that the Second Amendment permits the permanent disarmament of a man convicted of about $2.5k in welfare fraud in 1995.  

In July 2020, deep in the dark depths of the pandemic, Sierra Vista, Ariz. officials decided it would be a great time to enforce long-unenforced zoning rules and order residents who are elderly, disabled, and living on a fixed income—and had nowhere else to go—out of their homes on 30 days’ notice. No hearings, procedures for appeals, or court approvals. There was—and is—absolutely nothing wrong with their homes (which would be legal just down the street) and quite a bit wrong with the abandoned and derelict properties nearby that the city ignored—and is ignoring. But good news! Last week, the Arizona Supreme Court said the residents’ lawsuit should have been allowed to proceed. Click here to learn more.