Moot beaches, sparking the French Revolution, and cash-bail advocacy.

John Ross · August 4, 2023

For over 10 years, Louisiana prison officials have held more than a quarter of inmates past their release dates—an extra 525 days in the case of IJ client Percy Taylor. Next month, the Fifth Circuit will consider whether the head of the state’s prison system can be held accountable. Click here to read Taylor’s brief.

  • Group of folks is smoking pot outside a Washington, D.C. apartment building. Officer stops and sees one guy back away and raise his hands. Cop: Says show me your waistband. Defendant: Says “No. I’m cool” and shows waistband. Cop: Noticing some bulges, says do it again. Defendant: Runs away, throws gun in bushes, is charged with felon in possession. District court: The cop’s first request wasn’t a seizure, and for the second there was reasonable suspicion. D.C. Circuit: First request was a seizure, and evidence must be suppressed. First concurrence: Cops freak people out; we should construe seizures broadly. Second concurrence: Yeah, but these kinds of seizures are often OK in a “high crime area.”
  • Relying on advice from a state prosecutor, Rochester, N.Y. woman waits until after her (now-former) boyfriend, a suspected drug dealer, is acquitted on all charges to seek the return of $8k cash seized from her home. Alas! Though that may have been sound advice under state law, the money had been turned over to the feds, and under federal law she missed the deadline to file a claim. Second Circuit: Let her file a claim. Also, on the topic of civil forfeiture, we note that the practice of allowing gov’t officials to profit by enforcing the law was a “spark that lit the French Revolution.” Vacated and remanded. (This is an IJ case.)
  • Allegation: For seven years, ICE officer repeatedly rapes undocumented Honduran immigrant under threat of deportation. When he eventually leaves his job with ICE, he tells her that “[i]f you go and ruin my life, I’ll kill you.” Four years later, after revealing the abuse to a different ICE officer who advises her to retain a lawyer, she sues. District court: But the statute of limitations under the Federal Tort Claims Act is only two years. Second Circuit: Take another look; there’s an argument for equitable tolling here.
  • The family that counterfeits money together stays together . . . or something. Two brothers are convicted of doing a lot of RICOing, and the gov’t seeks to forfeit a few of their properties, including one that is partially owned by (a) one of the brothers and his wife (as tenants by the entirety) and (b) the other brother and the brothers’ sister (as tenants in common). District court: That property is forfeited except for the wife’s interest, and she gets to live in the home for the rest of her life without the gov’t’s interfering. Fourth Circuit: Nope, nope. The gov’t is free to sell the property and split the proceeds proportionally between itself and the wife.
  • Fifth Circuit (1998): “Logic and common sense dictate that if there is no duty [of an insurer] to defend, then there must be no duty to indemnify.” Fifth Circuit (2023): Actually, this insurer might have to indemnify, even though we hold it had no duty to defend. Insurance bar: [Endless screaming.]
  • Following a summer of hurricanes and tropical storms in 2020, Texas issues an order temporarily enlarging the state’s beaches and, it is alleged, giving the public access to beachfront homeowners’ curtilage. A taking or a Fourth or Fourteenth Amendment violation? District court: Hrm, perhaps, but your request for a preliminary injunction is denied. Owners: We appeal! Gov’t: We know our order says it’s effective for two years, but we’ve decided to rescind it well before that—one week before our Fifth Circuit brief is due, in fact. We can haz mootness plz? Fifth Circuit (unpublished, over a dissent): Gov’t officials are famously more trustworthy, honorable, and upstanding than ordinary citizens (see p. 7), so we have every confidence in the Texas attorney general when he says that the state’s eleventh-hour volte-face was totally above board and had absolutely nothing to do with manipulating the federal courts’ jurisdiction. Of course you can haz mootness. Appeal dismissed. (Quaere: Would the better decretal course have been something akin to Munsingwear vacatur, which at least would have spared the homeowners the indignity of having to pay the gov’t’s appellate costs?)
  • Supporters of a challenger to then-Sen. Thad Cochran sneak into Cochran’s ailing wife’s nursing home and snap a picture for an attack ad. A local lawyer implicated in the scheme is arrested, generating significant news coverage and professional fallout. He commits suicide shortly thereafter. His family sues, alleging that the prosecution was politically motivated and in retaliation for the exercise of his First Amendment rights. Fifth Circuit: ‘Twas not.
  • Federal judge: “I’m tired of this case. I’m tired of this defendant. I’m tired of getting the runaround. . . .  This guy looks like a criminal to me. This is what criminals do. This isn’t what innocent people[] who want a fair trial do.” Sixth Circuit: New trial.
  • Sixth Circuit: It is clearly established that police who make a warrantless arrest need to take steps to ensure the arrestee gets a probable-cause hearing within 48 hours. So no qualified immunity for these Michigan state troopers and detectives who arrested a grandma (for witness intimidation), who then sat in jail for 96 hours and was not brought before a judge.
  • In 1881, Robert Todd Lincoln, secretary of war, recommended that a stretch of the Mississippi River be deepened and dredged to allow for a navigable channel for commercial vessels. Congress acquiesced. After the National Environmental Policy Act was passed in 1976, the Army Corps of Engineers examined the environmental impact of the project, leading to reams of reports and much litigation. Seventh Circuit (in a decision issued on what would’ve been Robert Todd Lincoln’s 180th birthday): The guvvies win.
  • The Bail Project is a nonprofit that advocates the abolition of cash bail and, as part of its mission, pays cash bail for thousands of people nationwide (with the aim of showing that conditioning release on payment of money is a senseless exercise). Indiana passes a law saying that “charitable bail organizations” cannot deposit cash bail for people charged with crimes of violence. Bail Project: But we pay people’s cash bail to communicate the message that cash bail is actually unnecessary, so the new law violates our First Amendment rights. Seventh Circuit: Paying folks’ bail is not expressive, so the law is probably fine. Dissent: Seems pretty expressive to me, not least because the Indiana legislature seems to have grokked exactly what the group was trying to convey (and responded by passing a statute to curb its efforts).
  • Victim of underage sex trafficking sues the software company, alleging that its business assistance to the now-defunct web-classifieds site amounted to knowing participation in a sex-trafficking venture. Does she have a claim? Seventh Circuit: She does. Salesforce knew or should have known that Backpage facilitated sex trafficking, even if it didn’t know about this particular victim. Dissent: The law requires knowledge of a specific victim. (NB: The extent to which Backpage itself knowingly facilitated trafficking is a matter of some debate.)
  • Protester tells a St. Louis officer holding pepper spray that “[i]f you put that s*** in my face, I’ll f*** you up.” He then says to “[p]ut that s*** in my face” and calls the officer a “p****a** white boy.” He gets pepper sprayed. Unlawful retaliation for the protester’s protected speech? Eighth Circuit: A jury might think so. No qualified immunity.
  • Guy transferring busses in Omaha, Neb. has a blanket wrapped around him and gives some inconsistent answers to questions. Officers pull the blanket off without consent and then see a bulge in the man’s clothing. They find contraband! Eighth Circuit: No reasonable suspicion for a Terry stop at the moment they pulled the blanket off as they hadn’t seen a bulge at that point, so evidence suppressed. Dissent: It’s not like they had to see a bulge.
  • The last known doctor providing abortions in Guam retired in 2018, leaving women to use telemedicine to obtain chemical abortifacients. But Guam requires women to meet in person with a physician before having an abortion. Ninth Circuit: Zoom is a poor substitute for in-person meetings. Guam’s laws pass the rational basis test.
  • After the Civil War, the Thirteenth Amendment outlawed slavery and gave Congress enforcement power that has since been interpreted broadly. In 2009, Congress invoked that enforcement power to pass a statute making assault a federal crime if based on race, religion, or ancestry. California man with a history of racially motivated assaults is convicted under this statute. He challenges the conviction, saying Congress lacked power to enact it. Ninth Circuit: We join all our sister circuits to consider the issue and uphold the law. Dissent: Private street violence really has nothing to do with slavery or civil rights, so Congress went too far.
  • If you file for Chapter 13 bankruptcy and later convert to Chapter 7 liquidation, but your home goes up in value in the meantime, does that additional equity belong to you or to the bankruptcy estate? Courts across the country are “heavily divided,” but the Ninth Circuit (over a dissent) holds that it belongs to the bankruptcy estate.
  • An immigration judge’s ruling that uniformed Costa Rican police were not acting under color of law when they (allegedly) beat up, raped, and jailed a man who declined to deal drugs for them “defies logic and the law,” says the Tenth Circuit. Concurrence: Though we should go en banc and hold the man didn’t file this petition on time.
  • If you’re a criminal defense lawyer in the Eleventh Circuit, watch out! At least in Alabama, where qualified immunity will let officers arrest you if you refuse to let them look through your bag for your clients’ possessions, even if they lack actual probable cause under a state statute against obstructing governmental operations. (Though at least you can still sue the prosecutors if they make defamatory statements about you to the press afterward.)

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