Loss and woe.

John Ross · April 28, 2023

The U.S. Supreme Court has said that (most of the time) you need Congress’s permission to sue federal officers when they violate your federal constitutional rights. But some state courts have rejected that reasoning when it comes to suing state officers for state constitutional violations. Which is right? In Arc Digital, IJ’s Anthony Sanders argues it’s the latter. He explains “law” doesn’t just come from legislatures. Sometimes “the people” make it via a constitution and sometimes courts do. But the belief in “parliamentary supremacy” makes us think courts can’t do what they’ve done for centuries: provide remedies for wrongs.

  • A coalition of 46 states, D.C., and Guam sue Facebook for violating federal antitrust law by, among other things, purchasing Instagram and WhatsApp. But those happened years ago. Might these claims be barred by the equitable doctrine of laches? States: Nope, because we’re sovereigns, laches doesn’t apply. D.C. Circuit: You can be a “sovereign” to whom laches doesn’t apply, or you can be a “person” entitled to file antitrust lawsuits, but you can’t be both.
  • You might think a law that bans therapeutic speech, but not other speech, would be a restriction based on the content of the regulated speech, but this Second Circuit opinion makes clear that those words don’t mean the things you think they mean. (This is an IJ case.)
  • If you’re a criminal defense lawyer and your drug-smuggling client “sent around $90,000 to an attorney in Jamaica, who then wired it to a realtor in New York City, who then sent it to a Ugandan diplomat . . . , who wired the money” to you to send to the mother of his child, you just might be conspiring to launder money. So found a Baltimore jury. Fourth Circuit: This episode of “Better Call Saul” ends with affirming the conviction. Dissent: There was a serious question about whether the conspiracy continued into the statute-of-limitations period, and the jury should have been instructed on that issue.
  • Dallas-based UPS worker sues the company for (among other things) invasion of privacy. Allegation: My supervisor denied me a bathroom break until I was forced to defecate on myself at my workstation. UPS: Aha! But since you were (allegedly) forced to sh*t yourself in public, technically it wasn’t an invasion of privacy. Lawyered! Fifth Circuit: What on earth is wrong with you? The invasion-of-privacy claim can proceed (though an intentional-infliction-of-emotional-distress claim is a no-go).
  • Some might find interesting the substance of this Fifth Circuit NLRB case (whether it’s within the NLRB leadership’s prosecutorial discretion to withdraw a complaint). Your editor is more inclined toward the sparring between the majority and dissent over the party presentation principle. Is this a case where the bench litigates the case for counsel, or ought judges address legal questions even when presented less than perfectly?
  • Nearly 33 months after oral argument, the Fifth Circuit has issued an unpublished, per curiam opinion dismissing a class action challenging Customs and Border Protection’s illegal practice of seizing cash at airports and then returning it only if its owners waive their right to sue. We could explain everything wrong with it but, since it’s an IJ case and some of those things are basic factual errors, we’ve got a petition for rehearing to write.
  • If you affix a “bump stock” to a semiautomatic rifle, do you now have a “machinegun”? Sixth Circuit (en banc) (2021): We are evenly split and cannot decide. Sixth Circuit (three-judge panel, 2023): Um, since our full court can’t decide this, and a bunch of other judges are all over the place, and the same question is before us yet again, let’s just go with the rule of lenity. Concurrence: Lenity, schmenity, until Congress says so it’s not a “machinegun.”
  • If the county takes your home to pay property taxes and then transfers it to its “land bank”—enabling the county to pocket any extra cash after the taxes are paid off—does the statute of limitations on suing to get that cash back begin to run when the county seizes or when it transfers? District court: Seizes. Sixth Circuit: Transfers. (Note, this is a different “equity theft” case from the one SCOTUS heard this week and in which IJ filed this amicus brief on behalf of one of our clients.)
  • Seventh Circuit (2021, en banc): Indiana’s sex-offender registration law does not violate the right to travel. Neither does it violate the Ex Post Facto Clause. And, for good measure, it does not trigger heightened scrutiny under the Equal Protection Clause. District court (on remand): I get it, guys. That must mean that the law fails under rational-basis review. Seventh Circuit (this week): It does not.
  • District court: It is clearly established that police officers need a good reason to point a gun at someone. But this Springdale, Ark. officer allegedly pointed a taser at a woman without a good reason. Qualified immunity! Institute for Justice: But wait! It is also clearly established that officers can’t threateningly wield a flashlight without a good reason. Eighth Circuit: Ah, but the officer had a good reason to point the taser. Dissent: No, he didn’t, and anyway that’s for a jury to decide.
  • During an August 2020 riot in Minneapolis, man (per the feds) adds accelerant to a fire that causes $1 mil damage to Target’s headquarters, takes requests from friends for items to pilfer, and, among other misdeeds, brags about it on social media. Eighth Circuit: No need to disturb his conviction or eight-year sentence. 
  • Long Beach, Calif. animal control officer approaches woman running on the beach with her unleashed dog—a violation of city ordinance. Later, the woman calls animal control to file a complaint about one of the officers, whom she says was aggressive. The officer she speaks with threatens to sue her. Ninth Circuit (unpublished): The First Amendment prohibits gov’t officials from threatening citizens on the gov’t’s behalf. Dissent: The officer also has a First Amendment right to sue and threaten to sue.
  • Epic Games, makers of the immensely popular Fortnite cross-platform video game, sues Apple, alleging that various App Store policies violate federal antitrust law and California unfair competition law. Apple mostly wins, but Epic prevails on state unfair competition, but then Apple wins some attorneys’ fees … look, it’s a really long opinion and we already had to read that Facebook antitrust decision, so you can read the Ninth Circuit‘s opinion (and partial dissent) yourself.
  • In 2013, man is walking to bus stop and accepts a ride from an acquaintance who’d serendipitously driven by. Yikes! Shortly thereafter, Denver police give chase to the vehicle, which had been involved in an incident earlier that day. The acquaintance and his two brothers shoot at the police, hitting one officer in the shoulder. They crash. (One brother escapes on foot; another is shot dead; the third is taken into custody.) The man crawls out of the vehicle and is lying on the ground with his hands raised when the officer who’d been wounded arrives and (without communicating with another officer who was already there or giving any orders) shoots at the man 12 times. A round shatters his spine. Denver to public: Good shoot! Comported with dept. policy. Denver in litigation: In fact, it was “patently obvious criminal conduct,” and the city can’t be held liable for failing to train officers not to do obviously inappropriate things like shooting out of anger. Tenth Circuit: The jury verdict stands. The city is on the hook for $2.4 mil and the officer is on the hook for $131k.
  • Cybersecurity company: Microsoft lied when it said it had a product a lot like ours and made $43 billion! Eleventh Circuit: Hmm, looks like you got the patent for your product the day before you filed this lawsuit. Well, anyway, how much did you actually end up with in sales? Company: Nothing. But we would have made, like, a lot if it weren’t for Microsoft’s lies. Eleventh Circuit: Ok, what evidence do you have? Maybe a lost profits expert or a survey or something? Company: We don’t need any. Eleventh Circuit: Wrong.
  • District court: Whoa, this new set of Florida voting rules is off the chain! I’m enjoining a bunch of them and putting the state under VRA preclearance review for a whole decade. Eleventh Circuit (over a dissent): Nope, although few parts of the law have First Amendment problems.
  • The Alabama Constitution of 1901 was enacted with the specific purpose of establishing white supremacy. To accomplish this goal, the 1901 constitution, among other things, contained a provision disenfranchising anyone convicted of a crime of moral turpitude. After the Supreme Court held that provision unconstitutional in 1985, the state enacted a new constitutional amendment that disenfranchised only those who committed felonies involving moral turpitude. So we’re good now? Eleventh Circuit: Yeah, this is fine. Dissent: Let’s count the ways in which it is not fine.
  • And in state court news, the Massachusetts Supreme Judicial Court has elected to use its “extraordinary superintendence powers” and hold that about 27,000 defendants who pleaded guilty to DUI from 2011 to 2019 are entitled to a conclusive presumption of “egregious government misconduct” and to the suppression of the breathalyzer results if they seek to withdraw their plea—thanks to an investigation that uncovered “a history of intentional withholding of exculpatory evidence” and “blatant disregard of court orders” at a Massachusetts State Police crime lab unit. But defendants still have to show that they wouldn’t have pleaded guilty if they had known about the misconduct. And if they’re tried again, their sentence will be capped at the original sentence, unless (as happened with the defendant in this case) that original sentence was illegally low.  
  • And in amicus brief news, IJ is urging the Georgia Supreme Court to hold fast to certain state law protections against the abuse of civil forfeiture; namely, that officials must actually give property owners notice of why the gov’t is taking their stuff, and that forfeiture cases are to be dismissed and property returned if a hearing is not held within a 60-day deadline. Either or both of which mean the Decatur County Sheriff’s Office’s forfeiture complaint against the owners of a scrap-metal business should’ve been tossed, and the owners should get back the bank accounts, vehicles, business properties, and a former residence that were seized from them.
  • And in cert denial news, the Supreme Court has declined to reconsider the doctrine of absolute prosecutorial immunity in a case involving prosecutors who, kid you not, violated the Thirteenth Amendment’s ban on indentured servitude. The petition gave the Court the opportunity to jettison the ahistorical, atextual doctrine entirely—or curtail it so that prosecutors who act outside the bounds of their statutory or constitutional authority lose their immunity (a longtime and salutary exception to immunity that has fallen into disuse).

In 2017, Kimberly Dunckel and her husband bought a severely dilapidated property in a rural, residential neighborhood in Winston-Salem, N.C. after officials said their plan to open an animal sanctuary for unwanted and injured animals would be no problem. But the city reneged! Earlier this year, and though the sanctuary and its 70 animals have been good neighbors, officials demanded that the Dunckels comply with an array of confusing and arbitrary zoning rules, including a ban on events (like their regular education classes for small groups of schoolchildren), that threaten the sanctuary’s viability. So this week, Kimberly and IJ filed a lawsuit under North Carolina’s Constitution, which protects the right to make peaceful and productive use of one’s property and the right to pursue a chosen occupation. Click here to learn more.