Retaliatory investigations, reckless investigating, and a consultant’s duty.

John Ross · July 8, 2022

New on the Short Circuit podcast: Salt mines and open fields.

  • Can plaintiffs challenging Maine’s vaccine mandate for healthcare workers proceed pseudonymously? The First Circuit says no; they have failed to show they will suffer severe harm sufficient to outweigh the public’s (and media intervenors’) interest in open litigation.
  • The Maine Constitution provides for a “people’s veto,” under which Mainers can have a state law temporarily suspended and put to a popular vote by submitting a petition signed by at least 10% the number of voters in the last gubernatorial election. But those signatures may only be collected by state residents who are registered to vote. A First Amendment violation? First Circuit: Sure looks like one. Preliminary injunction affirmed.
  • Whole Foods has a dress code policy forbidding staff from wearing clothing with visible slogans or ads. But it’s not exactly enforced. Until . . . a bunch of employees start wearing “Black Lives Matter” masks in June 2020. Is there a claim for racial discrimination under Title VII? First Circuit: There could be a claim, but there’s an “obvious alternative explanation”: the sudden mass expression of a controversial message. Concurrence: You’re overthinking this, majority. The employees simply weren’t targeted because of their race.
  • Saudi man, whose story and friendship with Jamal Khashoggi is documented in The Dissident (a movie your humble editor unequivocally recommends), now lives in Montreal. Allegation: Management-consulting giant McKinsey prepared a report identifying the man to the Saudi gov’t as an influential dissident using Twitter to criticize the gov’t. With this information, the Saudi gov’t targeted the man for assassination and his family and friends for torture. Second Circuit: Alas, McKinsey owed the man no duty, so his case is toast.
  • In which the Second Circuit soberly weighs whether a reasonable member of the public could have believed that the “pedophile-detecting ‘device'” that beeped when waved over former Judge Roy Moore was, in fact, a scientific marvel capable of detecting pedophiles. Click the link for the shocking answer! (NB: The answer is the one you think.)
  • Feud among Philadelphia-based bank’s board of directors deepens following the death of one director; accusatory press releases are released; and it all culminates in a lawsuit by one group of directors against the other. District court: You people clearly can’t handle this, so I’m appointing a custodian to oversee replacing the deceased director and adding an additional director. Third Circuit: First, we have appellate jurisdiction (there’s no difference between a receiver and a custodian for 28 U.S.C. § 1292 purposes) and the district court had subject matter jurisdiction (the federal claims were not pretextual). Second, this situation was “dramatic,” but it wasn’t extreme, so the district court shouldn’t have appointed a custodian. Reversed and remanded.
  • Allegation: Tyson chicken ignored COVID-19 guidance, causing employee deaths. Tyson: But the federal government told us to stay open, so we should be able to defend ourselves in federal court. Fifth Circuit: Encouragement is not a requirement. Go back to state court.
  • Allegation: Nursing home ignored COVID-19 guidance, causing resident deaths. Nursing home: But the federal government manages public-health emergencies, so we should be able to defend ourselves in federal court. Fifth Circuit: This is a normal negligence suit. Go back to state court.
  • Last fall, the Biden Administration, like many previous administrations, issued a guidance to ICE agents that individuals who are a threat to “national security, public safety, and border security” should be prioritized for deportation. But several states sued and obtained a nationwide preliminary injunction from the district court. Sixth Circuit: Reversed. It’s a memo, how do you even enjoin one of those? And the states probably don’t even have standing. Meanwhile, the Fifth Circuit, reviewing a challenge to the same guidance by a different set of states, sees things very, very differently.
  • Yes, yes, says the Sixth Circuit, a member of Butler County, Ohio’s zoning board voted to grant a variance to a piece of property he secretly had an ownership interest in, but whoever said life was fair? Not us federal courts, that’s for darn sure.
  • Seventh Circuit: Chicago-based preservation group sues the Secretary of Transportation over plans to build the Obama Presidential Center in historic Jackson Park on the South Side of Chicago. There’s just one problem: The feds have no control over what Chicago does with its public parks.
  • Generally, prosecutors are not allowed to introduce evidence of previous crimes to prove a criminal defendant’s propensity to commit the crime with which he is charged—the theory being that the law punishes bad acts, not bad people. Eighth Circuit: But in this case—in which a shooting suspect claimed he “never” had a gun when in fact he had been convicted of assault with a firearm over 20 years ago—the evidence was used to show that he’s a big ol’ liar.
  • Allegation: Scott County, Mo. officer rapes the 15-year-old son of a fellow officer. After the fellow officer demands redress from county officials, a child-welfare worker instead opens an investigation into the fellow officer and his wife, finding them to be neglectful parents. (Had the finding not been overturned on appeal, it would have cost both parents their livelihoods.) Eighth Circuit: As a general matter, gov’t officials are prohibited from retaliating against people for their constitutionally protected speech, but whether that means gov’t officials can be held liable for trying to take away people’s kids in retaliation for their speech is an open question. (And will remain so.) Qualified immunity for the child-welfare worker.
  • Allegation: Victim tells 911 and then responding officers that he was shot by a Black male; a witness reports the same. But a St. Louis detective gets warrants for two white brothers, who spend nearly two years incarcerated or on house arrest. Eighth Circuit (over a dissent): The detective didn’t know the victim said the perp was Black, so qualified immunity even if his own failure to do basic investigating was the reason he didn’t know.
  • Allegation: St. Louis SWAT officers raid home, shoot man dead, and place an AK-47 next to his body. Officers: He fired at us! Family’s ballistics expert: In fact, all 93 rounds were fired by police. Eighth Circuit: Which is the kind of factual dispute that must be resolved at trial. No qualified immunity on the excessive force claim.
  • Allegation: Oil companies ignored global warming, causing extreme weather and rising sea levels. Oil companies: But the federal government has all sorts of ties to oil and gas production, so we should be to defend ourselves in federal court. Ninth Circuit: This is not a federal issue. Go back to state court.
  • Ninth Circuit to DOJ: If you want immigration cases to linger forever, we can’t stop you from doing it on the BIA’s docket, but we’re not going to let you do it on ours.
  • Septuagenarian former Montana state senator and his retired buddy maintain a website that grades politicians on how often they vote with the rest of the Republican Party. They also traverse the state, on their own dime, giving PowerPoint presentations to local Republican groups. The state campaign finance watchdog goes after them, accusing the duo of being an unregistered political committee. Ninth Circuit: As applied to these fellas, the law is unconstitutionally vague. Dissent: These are sophisticated guys; they could have figured it out.
  • Tenth Circuit: Officials in suburban Denver school district violated the First Amendment when they disciplined student who, while off campus, posted a picture of friends in thrift-store military garb to his private Snapchat story and captioned it, “Me and the boys bout [sic] to exterminate the Jews.” On remand, the district court should address whether the school officials are entitled to qualified immunity.
  • Allegation: Responding to hoax 911 call about a hostage situation, Wichita, Kan. officer shoots unarmed, unthreatening man dead on his front porch 10 seconds after he came outside and without identifying as police. It was the 21st police shooting in Wichita in six years, none of which resulted in any meaningful investigation or discipline. Tenth Circuit: No qualified immunity for the officer, but the claims against the city are dismissed. (The hoaxer is serving 20 years in prison. The officer was promoted last month.)
  • New Mexico child-welfare workers approve foster placements at home of woman they know to have substance abuse issues and a history of violence, among other red flags. After 4-month-old dies in her care, on night when temperatures fell below zero, investigators note that the house has holes in the walls and ceiling and lacks heating. It is strewn with rotten food, soiled clothes and diapers, trash, and dog urine and feces. Tenth Circuit: The child-welfare workers violated the child’s and her surviving siblings’ substantive due process rights. But the case is remanded back to the district court to see if those rights were clearly established.
  • And in amicus brief news, IJ is asking the Supreme Court to take up a case about the seizure of guns from a home without a warrant or exigent circumstances. The case threatens to undermine Caniglia v. Strom, in which the Supreme Court ruled, just last year, that officers who seized guns from a home without a warrant or exigent circumstances violated the Fourth Amendment. (The Second Circuit distinguished the case in a footnote.) And it also gives the Court an opportunity to repudiate the “special needs” exception to the warrant requirement, which gives the gov’t a free pass into people’s homes so long as it can come up with a loosey-goosey health and safety justification.

Villainy! Last week, the Pennsylvania Game Commission disclosed that its officers have been spying on IJ’s client, the Punxsutawney Hunting Club, by putting a surveillance camera on the club’s private property without any warrant or notice. The disclosure comes as part of litigation filed by the club last year after wildlife officers repeatedly trespassed on its land, harassing members and guests for any reason or no reason. “We never had a clue it would be as obscene as having game cameras spying on us,” says Frank Stockdale, president of the club’s board. “It’s outrageous to think someone’s taking pictures of you on your own private property,” he added. “It’s not very becoming of our government that we have this stuff going on in our state.” Click here to learn more.