Reasonable SWAT mistakes, lying forensic pathologists, and de minimis injuries.

John Ross · April 26, 2024

New on the Bound By Oath podcast: We get neuroanthropological, philosophical, and just a tad practical – and determine conclusively that property rights are a good thing and property isn’t theft.

New on the Short Circuit podcast: Special guest Michel Paradis of Columbia Law (among other affiliations) gives us a lesson on secret submersibles and FOIA responses. 

  • During the COVID-19 pandemic, three employees at Whole Foods start wearing masks with Black Lives Matters slogans. Corporate policy forbids masks with any slogans, but the employees persist, eventually racking up enough disciplinary infractions to be fired. They sue, alleging they were discriminated against for their pro-Black message. First Circuit: Maybe one of them was; her final disciplinary infraction—arriving late after her bicycle tire was stolen—might plausibly have been forgiven if she had been someone else. But the other two were just fired for violating the neutral dress code.
  • The Hoover Dam was built in five years, two years ahead of schedule. That’s just a random factoid and not in any way intended as commentary on an offshore Massachusetts windfarm that could power 400,000 homes and has been embroiled in environmental review and litigation for nearly a decade. The latter is the subject of these two First Circuit cases rejecting claims under various environmental statutes in lawsuits surely motivated only by altruistic concern for whales, and definitely not at all by Nantucket and Martha’s Vineyard NIMBYs’ worries about the views from their humble estates.
  • If you want to relive the bureaucratic and dystopian nightmare that was the COVID-19 pandemic through the lens of a girl with asthma who claimed she couldn’t wear a mask in a New York public school, then you’re welcome to read this Second Circuit case where she loses on her constitutional claims but gets to go forward under the ADA and Rehabilitation Act.
  • New York man is convicted on federal charges and sentenced to 37 months’ imprisonment and three years of supervised release. Upon completion of his federal prison sentence, he is transferred to state custody pending indictment (and eventual conviction) on state charges. Four years later that conviction is overturned and a new trial is ordered. He’s held another four years pending retrial before the state dismisses all charges. So what about that federal supervised release? Did it run while he was in state prison? Second Circuit: Being in prison doesn’t sound very much like being released.
  • Lynchburg, Va. registrar loses her position after two of the three members of the city electoral board vote to appoint someone else. She sues the two members, claiming that she lost her job due to her political affiliation (a no-go under the First Amendment). Board members: Your request for injunctive relief against us is barred by Ex Parte Young, since we can act only as a full body, not as individual members. Fourth Circuit: Interesting theory. Except that “[m]ore than 35 years ago, a published opinion of this Court affirmed a district court’s grant of the same relief [the aggrieved registrar] seeks under circumstances materially identical to those presented here.”
  • Former federal prisoner: Four guards beat me up unprovoked, and I would like to sue the gov’t for my serious injuries under the Federal Tort Claims Act. District court: Your injuries seem “de minimis,” so you can’t sue. Fifth Circuit: There is no de minimis exception under the FTCA or the relevant Louisiana tort law (also, there is evidence that the injuries were more than de minimis). Try again.
  • Hillview and Louisville, Ky. police raid home listed on robbery suspect’s driver’s license. Yikes! His 86-year-old grandmother lives there; he does not. Grandmother: I am not happy about being forced out into the front yard in my undergarments, the damage to my home, or the $77K THAT POLICE STOLE FROM MY HOUSE. Sixth Circuit (unpublished, per curiam): The “host of serious allegations notwithstanding,” the only claim in front of us depends on whether there was probable cause for the search. And there was. Qualified immunity.
  • Indianapolis police and federal agents search suspect’s house and find keys to a safe; they learn that a nearby car associated with the suspect was reported stolen and search it without a warrant. (They find and unlock two safes containing contraband). Fourth Amendment violation? Seventh Circuit: No. The defendant had no privacy interest in the contents of a stolen car, and, even if he did, officers had probable cause for the search. Affirmed. 
  • “The statute of limitations for sex crimes against children extends through the life of the victim. The text could not be clearer on that.” So says Seventh Circuit, affirming musician R. Kelly’s conviction for abusing minors dating back to the late ’90s and his 20-year sentence (all but 12 months of which will run concurrently with a separate New York sentence being appealed at the Second Circuit).
  • Man flees car crash on foot. Elk Grove, Calif. officers tase him, pin him face down, and handcuff him. He says he can’t breathe, turns blue, and dies. Did he die of positional asphyxia from the officers compressing his chest with their body weight or of a heart attack? The latter, according to a forensic pathologist, who also testified that he was independent from the officers and had met their attorneys for the first time out in the hallway. But wait! He had actually been retained by the defendants two years before trial and received $4k for his testimony, and they relied heavily on their portrayal of him as an independent public servant. Ninth Circuit (unpublished): Had the jury known the pathologist was actually a paid private expert, it may have viewed his testimony differently. New trial.
  • In February 2022, union files a petition to represent 90 Starbucks employees at the first Starbucks Reserve Roastery in Seattle. Citing rising COVID-19 cases, the union wants a mail-in ballot, while Starbucks wants an in-person ballot. Regional director of the NLRB orders a mail-in ballot and the union wins the election by 11 votes. Starbucks objects and refuses to recognize the union. Ninth Circuit: But recognize it they must.
  • Sure, federal regulations make it illegal to transport marijuana via airplane, but what about state-legal marijuana transported entirely within Alaska’s borders? Ninth Circuit: Federal regulations make it illegal to transport marijuana via airplane.
  • Federal officials conduct an unannounced training exercise at Florence, Colo. prison. During a (fake) hostage standoff, officers encounter a group of employees who had locked themselves into a cashier’s cage; they aim to oust the employees, first trying to break into the room with a crowbar, then firing pepper spray and fake bullets into the room. Employees finally emerge as the room fills with pepper spray, where they’re punched in the face, pushed off of crutches, and have fake bullets fired into their chest. They sue. Official who allegedly planned and facilitated the exercise: Qualified immunity! Tenth Circuit: Too soon to tell.
  • Shortly after the 2020 election, podcast distributor and host start publishing and repeating false claims that the director of product strategy and security at Dominion Voting Systems rigged the presidential election in favor of Joe Biden. The director sues the distributor/host, who try to get the case thrown out under Colorado’s anti-SLAPP law. The district court denies the motion after determining that the plaintiff is likely to win on all his claims. The distributor/host appeal. Tenth Circuit: But we lack jurisdiction. The collateral order doctrine doesn’t extend to fact-bound anti-SLAPP denials.
  • After TASER International, Inc. successfully sued Phazzer Electronics for various violations of its intellectual property, the owners of Phazzer, in plain violation of the court’s injunction, just wouldn’t stop selling stun guns! Eventually, a federal court holds them and a former Phazzer employee in criminal contempt. The former employee successfully challenged her conviction last year, but what about the de facto owner of the company? Eleventh Circuit: He’s going to jail.
  • FBI agents execute no-knock warrant in the middle of the night at the wrong Atlanta house, terrifying a bunch of innocent people who live three houses away from the intended target. Seems the FBI team leader’s personal GPS device led him astray. Eleventh Circuit (unpublished): A reasonable mistake, so he gets qualified immunity. And the Federal Tort Claims Act’s broad exceptions for discretionary actions mean that the plaintiffs can’t sue the gov’t, either.  

Centennial of shame! In 1924, the Supreme Court ruled that the Fourth Amendment does not protect “open fields,” a doctrine that permits gov’t officials to trespass on all private land (field or otherwise) without consent, a warrant, or probable cause as long as they don’t enter the home or the “curtilage” around a home. It’s outrageous. It’s obnoxious. And we don’t agree with it. If you feel the same, or are open to being persuaded, or if you want to defend the doctrine’s good name, please join us in Arlington, Va. on Friday, May 10th for a conference with an all-star lineup of scholars, including Laura Donohue, Maureen Brady, Morgan Cloud, Daniel Epps, Luke Milligan, and James Stern. Click here for details! And be sure to click here for a lovingly crafted podcast episode on the history of the doctrine.