Overloaded fireworks, behavioral coaching, and makeshift pockets.

John Ross · June 28, 2024

New cert petition: When the gov’t takes property for a public use, it must provide just compensation – including when the gov’t destroys property. But last year, the Fifth Circuit held that that time-honored rule doesn’t apply when the gov’t has a really, really good reason to destroy property, and thus the City of McKinney, Tex. need not pay an innocent homeowner for catastrophic damage from a SWAT raid in pursuit of a (trespassing) fugitive. But wait! The gov’t is always supposed to have a good reason when it’s taking private property, and there is no historically based exception to the compensation requirement for law enforcement. Click here to learn more.  

  • Before and during the Civil War, five tribes kept slaves and allied with the Confederacy. After the war, the feds entered into a series of treaties that abolished slavery in the tribes and provided certain rights, including property, for the Freedmen. The granddaughter of George Curls, a Cherokee Freedman, alleges that he received 60 acres under these agreements as a minor, which were then leased for oil and gas drilling, generating substantial revenue that he was entitled to. But the feds cannot account for the funds—did they breach a fiduciary duty? D.C. Circuit: She has standing to assert her claim, at least, but the nonprofit claiming associational standing on behalf of the Freedmen’s descendants doesn’t.
  • It’s not incredibly surprising that there’s a defamation case involving a conspiracy theorist who speculated that DNC staffer Seth Rich was murdered on orders from Hillary Clinton, that his brother was covering things up, and that one of Rich’s friends was involved. What’s somewhat more surprising is that the conspiracy theorist brought the defamation case, suing NPR and others for reporting about him. D.C. Circuit: And his claims fail. Some are barred because the conspiracy theorist, a limited-purpose public figure, failed to allege actual malice. Others because the alleged defamatory statements—including that he is a “troll,” “crankster,” and “bully”—are all protected opinion.
  • Ayahuasca-related church: We would like 501(c)(3) status please. IRS: But a big part of what you do is distribute illegal drugs, and you haven’t gotten an exemption from the DEA. Church: Your refusal to grant us (c)(3) status violates our rights under the Religious Freedom Restoration Act. D.C. Circuit: No standing. Sure, you alleged that your lack of (c)(3) status led to the loss of charitable contributions you’d otherwise have received. But that harm is traceable to your putative donors’ stinginess, not the IRS.
  • A retired truck driver was brutally murdered in his New Milford, Conn. home shortly before Christmas 1985. Two teenagers are accused of stabbing him 27 times and beating him as part of a botched burglary. They’re convicted after famed forensic scientist Henry Lee testified that a towel at the crime scene tested positive for blood when, in fact, no test had been conducted. (Prosecutors claimed that the teens used the towels to clean off after the murders, which was why no blood was found on them or their items later.) Connecticut Supreme Court (2019): Both convictions are tossed. After 30 years in prison, they’re released. Second Circuit: No qualified immunity (at least not yet) for two police officers; to a factfinder the men’s claims must go.
  • Pennsylvania man is convicted of murder and appeals through the state court system. He ultimately loses at the Pennsylvania Supreme Court but receives no notice of the ruling. Uh oh! When the trial court dockets the Supreme Court’s ruling, it gets the date wrong, recording it as March 16, 2015, rather than February 19, 2015. The error is not detected until the man files a federal habeas petition, which is dismissed for being 14 days too late (it would have been timely under the date recorded by the trial court). Is he out of luck? District court: Yup! Third Circuit (unpublished): Vacated! Equitable tolling saves the day.
  • New Jersey AG: Hey Smith & Wesson, nice-looking documents you got there, mind if we take a look? Oh, and here’s a subpoena. S&W: Files papers resisting the subpoena in state court and a civil rights lawsuit in federal court. Federal district court: Younger abstention! Third Circuit (2022): Actually, there’s no Younger here. Federal district court: Fine, but my earlier Younger ruling slowed S&W’s roll for so long that now the state court proceedings are over. Since it lost there it also loses here automatically. Third Circuit (2024): You snooze (OK, you didn’t snooze, but federal proceedings took so long that) you lose. Dissent: Um, the state courts didn’t reach the merits of all the claims. What am I missing here?
  • Fourth Circuit:  Sure, the federal gov’t sent you letters saying your fireworks were overloaded and therefore banned and asking you to destroy them, but that wasn’t a final agency action. That’s just, like, their opinion, man.
  • Aspiring DEA special agent seems to be on the fast track to employment until the DEA learns that she is involved in a class action lawsuit against the FBI for sex discrimination. Suddenly the DEA is extremely concerned that she took a single Adderall pill at age 15 and was fired from part-time summer job with Kitchen Kaboodle at age 19 for not knowing the types and brands of pots and pans. She sues, alleging retaliation for joining the class action. Fourth Circuit (over a dissent): Sounds plausible. Case undismissed.
  • U.S. marshals arrest drug suspect in Maryland hotel room. Without a warrant, they search a cellphone that was sitting out on a table and discover incriminating text messages. Fourth Amendment violation? Fourth Circuit: Yes, the defendant was already handcuffed and not within reaching distance of the cellphone. But harmless error because other evidence was sufficient to convict. Conviction affirmed.
  • North Carolina prison officers get a tip that an inmate has an unauthorized cellphone. When he refuses a strip search, the officers pepper spray him and force him to the ground. Inmate: At which point, officers violently pulled the phone out of my rectum. Officers: We found it in a “makeshift pocket.” Fourth Circuit: The video that the district court “lasered in on” is inconclusive; a reasonable jury could find his Fourth and Eighth Amendment rights were violated. Vacated and remanded. 
  • A Louisiana fisherman and his grandson lay 700 crawdaddy traps from their skiff on Lost Lake, just off the Atchafalaya River. But there’s a problem: The lake is seasonal and sits atop private land. The landowner (allegedly) harasses them, detains their skiff and traps, and calls the cops—who then prosecute the fishermen. The fishermen then sue the owner for damages in federal court. But is there admiralty jurisdiction? Fifth Circuit (unpublished): Anchors aweigh! The lake may be seasonal, but it ultimately connects to the ocean. Plus, they were commercially fishing which is “sufficiently linked with millennia-old maritime-related tradition.”
  • Friends, way back in 2021, in a fit of truculence, we noted that the Fifth Circuit had declined permission to file a marvelously persuasive amicus brief arguing that both common sense and caselaw put jail officers on notice that leaving a suicidal detainee in a cell with a 30-inch phone cord and then watching as he strangles himself to death is unconstitutional. So we are pleased to see that the Fifth Circuit (unpublished) has revived other claims in the case and noted for the record that a grant of qualified immunity does not foreclose municipal liability.
  • Under federal law, you can’t make personal-use gun-silencers without first paying a $200 excise tax, applying for permission from the ATF, registering the silencer, and marking it with a serial number. Texas (2021): We’re passing a statute that says silencers made and remaining within our borders are “not subject to federal law or federal regulation,” and if any Texan notifies us of his or her intent to make a silencer, we’ll sue the feds. Three Texans: We intend to make gun silencers. Texas: Let’s all sue the feds together. Fifth Circuit: An Article III back o’ the hand to you. No standing. The individual plaintiffs filed declarations saying they plan to manufacture silencers, but they nowhere say they don’t plan to comply with all the silencer-related requirements. And they “have provided no information concerning the specific type of silencer that they allegedly intend to make or what parts they will use to make it.” As for Texas, it doesn’t have standing either, since all its statute does is purport to immunize its citizens from federal law.
  • Allegation: Howard County, Tex. sheriff’s deputy shackles prisoner and puts him in personal vehicle. Already inside is a bloody-faced inmate and the deputy’s wife, who is armed yet unaffiliated with the sheriff’s office. Prisoner is nervous. He’s been beaten up by (since-fired) Harris County officers before. He yells for help. Deputy responds with multiple, nose-breaking punches to the face. Eighth Amendment violation? Fifth Circuit: Ooh, bummer, the prisoner’s attorney failed to say “Eighth Amendment” in the complaint, and it’s too late to amend now. Judge Graves, concurring dubitante: But the “complaint needed no amendment;” the alleged facts were enough to form a suitable claim. “I am doubtful that [the] … case should end [] because he lost a motion to amend a complaint that needed no amending.”
  • That whole thing about states not being allowed to cut taxes after taking federal COVID-19 relief funds is back, with the Fifth Circuit joining two other circuits and holding that those are some unconstitutional strings.
  • Allegation: Behavioral coaches working with Allen, Tex. middle school student (because she’s been beaten up and bullied by her peers) take her to ground and pin her down with their knees until she vomits, causing bruising, scratches, lingering back pain, etc. Student: They did not have a good reason to do that. And there are no remedies in state court for this kind of thing. Fifth Circuit (unpublished): But we have long held that Texas does provide adequate remedies, which, we have held, means we shan’t provide any remedies. Case dismissed.   
  • “The Agency’s petition arises in the context of an investigation initiated by the Federal Bureau of Investigation and the United States Department of Justice into alleged criminal wrongdoing by senior Agency personnel.” And that’s all you really learn about who is involved in this Fifth Circuit denial of an attempt by a Texas state “Agency” to halt grand jury proceedings. Who might those anonymous “senior Agency personnel” be? One anonymous commentator commentates.
  • Obamacare requires private insurers to cover certain kinds of preventive care, including contraception, HPV vaccines, and HIV-transmission-preventing drugs. But the statute doesn’t define “preventive care” or provide a list of covered services. Instead, three HHS agencies determine what services are included. One, the United States Preventive Services Task Force, is composed of 16 volunteers “not subject to political pressure” who issue unreviewable recommendations that insurers are required to follow. Fifth Circuit: And that violates the Appointments Clause.
  • In which the Seventh Circuit gives an unpublished backhand to two intrepid civil-rights plaintiffs for not having invoked Rule 54(c) to stave off mootness. Unmentioned? The Seventh Circuit’s long history of saying that plaintiffs cannot invoke Rule 54(c) to stave off mootness. On the bright side: no criticism of our unimpeachable taste in fonts. (Yes, this is an IJ case.)
  • Wisconsin man’s misdemeanor domestic abuse case ends in a mistrial after the alleged victim disregards court orders and makes irrelevant and unduly prejudicial statements to the jury. About a year later, the DA recharges man, this time with nine felonies and two misdemeanors. He’s convicted and sentenced to 40 years. He challenges the conviction, alleging that the new case was retaliation for his having successfully sought a mistrial in the first case. Seventh Circuit: Looks like the expanded charges actually came from further investigation into the duration and extent of the domestic abuse.
  • Minnesota school district has a policy that prohibits employees from engaging in “conduct that is intended to be or reasonably could be perceived as endorsing or opposing specific political issues or political candidates.” Following the death of George Floyd, however, the district relents and allows teachers to display “Black Lives Matters” posters. A district resident asks the district to similarly permit “All Lives Matter” and “Blue Lives Matter” posters and shirts, but the district refuses. Pseudonymous litigation ensues. Eighth Circuit: The pseudonyms are off, but the litigation is back on.
  • After a Seattle-area Uber driver is tragically murdered during a failed carjacking by passengers using a fake account, his survivors sue Uber for negligence. After the district court found Uber wasn’t legally responsible, the Ninth Circuit certifies several questions to the Washington Supreme Court about how state tort law works in this novel 21st century context.
  • If federal officials commit a tort against you, sometimes you can sue the gov’t under the Federal Tort Claims Act. But if you litigate to judgment, then that is “a complete bar to any action” about “the same subject matter” against the individual gov’t employees. That generally means that if you sue the gov’t and lose, you can’t then sue the officers. But the Supreme Court has expressly reserved (in an IJ case) whether this so-called “judgment bar” applies when plaintiffs bring their FTCA claims and claims against the individual employees in the same lawsuit and lose their FTCA claims partway through. In a case presenting just that fact pattern, arising out of immigration raids, the Tenth Circuit holds that the judgment bar does apply. Concurrence: The FTCA judgment here was without prejudice so I wouldn’t apply the judgment bar, but the claims lose on the merits.
  • Alabama group seeks disclosure under the National Voter Registration Act of state records related to voters who were removed or denied voter registration because of a disqualifying felony. The state resists and the group sues. The district court orders the state to comply but allows it to charge a fee for production of the electronically stored records. Eleventh Circuit (over a dissent): As was proper. The NVRA entitles the public to “photocopies” of records, and we all know that a “photocopy machine” does not produce electronic records.
  • And in en banc news, the Fifth Circuit will not reconsider its decision to create a 4-1 circuit split by granting qualified immunity to a Waxahachie, Tex. police lieutenant who ordered a SWAT team to raid the wrong house despite numerous and very obvious differences between the two houses. (This is an IJ case. To SCOTUS!)

Ignominious defeat! Friends, Serafim Katergaris bought a house in Harlem in 2014. In 2015, he was fined $1k for failing – in 2013 – to file a boiler inspection report. Yes, before he owned the house! (The previous owner had removed the boiler.) Even worse, Serafim did not learn about the fine until he tried to sell the house in 2021. Turns out the city had outsourced the mailing of such notices to a third party, which, unbeknownst to the city, outsourced the mailing to a fourth party. Worse still, even if he had gotten notice, there would have been no chance to contest the fine; New York City’s Dept. of Buildings just says some fines are unreviewable. And, sorry to say, this week a federal district court ruled that there’s no need to consider whether any of that violates due process because Serafim’s deadline to file suit was in 2018 – three years before he found out about the fine. Harrumph. We appeal! Click here to learn more.