Saving the right whales, unpermitted structures, and habeas ankle.

John Ross · November 19, 2021

If a SWAT team destroys an innocent person’s house, does the government owe any compensation? Yesterday, a federal district court said it’s a definite possibility and threw out the city of McKinney, Texas’s motion to dismiss IJ client Vicki Baker’s case. Click here to learn more.

  • Is a “trucky trailer” a vehicle? No, this isn’t a new round of the Hart-Fuller debate, but a question of the interpretation of two statutes the federal government used to try and regulate fuel efficiency standards for those trailers. The D.C. Circuit ruled, without applying the Chevron doctrine, that a trailer is not itself a vehicle. The dissent, applying Chevron, says it is. (We discuss this opinion on the podcast this week.)
  • Around 368 right whales exist in the wild, and a leading cause of their death is getting entangled in lobster-trap lines. Following a stark decline in the whales’ numbers, the feds issued a rule seasonally barring the most popular lobstering method in a nearly 1,000 square mile area of the Atlantic. Lobsterers: Right whales don’t aggregate in that area. First Circuit: But some whales could be there and die from the lobster-trap lines, which is enough to allow the rule to be enforced this winter.
  • Allegation: After 15 years of teaching in the United States at an Islamic school in New York, Iranian citizen is informed that the Department of Labor has decided that their initial work approval was wrong and they’re revoking it. But, claims the teacher, this is a pretext: The FBI told her that her immigration status would be in jeopardy unless she provided information about Iran’s relationship with the U.S. When she didn’t have any information, they retaliated. Second Circuit: Absolutely none of which matters, because we don’t have jurisdiction over this sort of thing.
  • Three NYPD officers beat man unconscious, break his nose, and arrest him. They fabricate a story about how the man punched one of the cops multiple times while resisting arrest. Video corroborates the man’s story, and a jury awards nearly half a million in compensatory and punitive damages. Cops: Way too much in damages for just “a few minutes of violence.” Second Circuit: You beat the man unprovoked and then repeatedly lied about it. The damages stand.
  • Arrrr ye bilge rat! Who be claimin’ that a district court can’t grant a sailorman his coin when officers of his Majesty’s Coast Guard detain him up in port, and all his fancy fruits and coco-nuts from south of the Line goes to rot? It goes against the immemorial custom of the sea, it does! Third Circuit: The scurvy dog! This is an admiralty case if ever one was. Reversed and remanded it be!
  • South Carolina man is sentenced to death for the murder of a police officer, but seeks habeas relief on the ground—among others—that one of the jurors was so hearing-impaired that she was not competent to sit on the jury. Fourth Circuit (last May): To be sure, the interactions between the juror and the court “include some troubling exchanges,” such as her repeated admissions that she missed some of the testimony. But that’s not very different from when jurors fall asleep, which isn’t always such a big deal. Dissent: She missed testimony during both the guilt and penalty phases and we have no way of knowing what or how much. The man deserves a new sentencing hearing. Fourth Circuit (en banc): Affirmed by an evenly divided court.
  • Wanting to get a jump on the impending multicircuit (in fact, omnicircuit) lottery for challenges to the new OSHA vaccine mandate, the Fifth Circuit issued a stay on its enforcement. It primarily relied on statutory arguments, but also thought the mandate might go beyond Congress’s enumerated powers. (Ed.: Hey, we love the spirit, but it’s kind of telling there was no citation to Gonzales v. Raich.) Two business days later the Sixth Circuit “wins” the lottery, meaning the matter is then out of the Fifth Circuit’s hands. But we’ll always have the memories (of the case breaking as last week’s newsletter was going to press).
  • Under a widely disputed set of facts, Louisiana prisoner sues officers for beating him, spraying his genitals and anus with a chemical agent, and cutting him with a knife. District court: Prisoner was disciplined for his role in this encounter, so his claims are barred by Heck v. Humphrey. Fifth Circuit: Not necessarily all of his claims. Judge Willett (concurring): There is no need for further analysis. There is no world where Heck bars those claims.
  • Under a widely disputed set of facts, Louisiana prisoner sues officers for beating him, spraying him in the face and head with a chemical agent, and restraining and beating him again. (Sound familiar? Same officers, different prisoner.) District court: Pre-restraint claims are barred by Heck v. Humphrey, post-restraint claims are unexhausted. Fifth Circuit: Sort of. Not all claims are necessarily Heck barred, so more analysis is needed, but the post-restraint claims are unexhausted. Judge Willett (concurring): My colleagues’ holdings are correct, but their dicta is wrong.
  • Allegation: Two off-duty New Orleans officers suspect Honduran immigrant is trying to pass himself off as a military veteran, beat him unconscious. (He is a veteran.) District court: The officers weren’t acting under color of law. Fifth Circuit: They ordered him around and he complied, so yes, they were. Case undismissed. (The officers are fired and reach plea agreements to each pay $5k restitution.)
  • CIRCUIT SPLIT ALERT! The Sixth Circuit refuses to stay an FDA order denying premarket approval to a manufacturer of flavored e-cigarettes. The court rejects the Fifth Circuit‘s recent ruling that the FDA’s denials—which conflicted with the Agency’s express guidance on the types of evidence that would support premarket approval—justified a stay because they violated the “surprise switcheroo” doctrine.
  • Female inmates, past and present, seek to file a class action against Wayne County, Mich. for its jail strip search policy that, allegedly, allows searches in the view of opposite-gendered officers, in unnecessarily large groups, under unsanitary conditions, and with derogatory, gender-biased comments. No go, says the Sixth Circuit. Class certification requires commonality, and the constitutionality of each woman’s search requires particularized analysis. Certification reversed.
  • Is Younger abstention appropriate when there’s a state court zoning-enforcement case going alongside a federal court civil rights case? Sixth Circuit: Depends if it’s “akin to a criminal prosecution,” which the district court didn’t ask in this case about a church constructing unpermitted “structures” modeled after the Stations of the Cross. Remanded for that inquiry. Concurrence: Actually, I already know what the answer to that question is. (We recently marked the 50th anniversary of Younger v. Harris with a special episode of the podcast.)
  • Boyle County, Ky. prison officer impregnates pretrial detainee. Can she sue? District court: No, the sex was consensual. (Though under state law all sex between guards and inmates is nonconsensual, so this can go in state court.) Sixth Circuit: It might not have been consensual. Most egregiously, when he told her he could help her case, he also implied he could hurt it.
  • Edmonson County, Ky. officer tases unresponsive minor passenger in car that crashed after high-speed chase. An unreasonable use of force? Sixth Circuit: No qualified immunity for those claims. Dissent: “If you were a police officer, what risk of getting shot would you be willing to face before using your taser to incapacitate a suspect who may (or may not) be armed after he appeared to ignore your commands to show his hands?”
  • Responding to a tripped burglar alarm, Minneapolis officer enters family’s backyard and encounters two service dogs who, allegedly, calmly approached the officers with tails wagging. The officer shoots both dogs, causing severe injuries. Eighth Circuit: You cannot shoot non-threatening pets. Qualified immunity denied.
  • In 2011, St. Francis County, Ark. officers planted evidence against suspects and arrested them. In 2016, the State nolle prossed the charges against suspects. In 2018, the suspects filed suit against the officers. Eighth Circuit: Even though the charges were not nolle prossed until 2016, the statute of limitations started running in 2011, so this (very confusing) complaint was properly dismissed.
  • Habeas petitioner: I have been sentenced to lifetime ankle monitoring, and I’m entitled to be freed! Ninth Circuit: It’s habeas corpus, not habeas ankle, buddy. Your corpus seems okay, so you’re out of luck.
  • In 2007, the Ninth Circuit held that there was no fundamental right to use medical marijuana. But since then, there have been widespread changes in state laws governing the use of marijuana, and the weight of all of those changes, taken in light of modern attitudes, means that binding precedent is, per this Ninth Circuit panel, still binding precedent. Sorry to get your hopes up.
  • Feds deport man for burgling several businesses. Several years later, courts declare unconstitutional the statute that was the basis for his deportation. Ninth Circuit: Alas, he waited too long to ask the courts to revisit his deportation. Concurrence: Why should we chart a “new and unsupported path of legal reasoning just to avoid the lawful removal of a convicted burglar?” Dissent: Because the burglar’s deportation violates the Constitution.
  • FAA approves new air-cargo facility at San Bernardino, Calif. airport after determining it would not significantly impact the environment. Ninth Circuit: That’s fine. Dissent: “This case reeks of environmental racism.” Concurrence: That accusation is a serious matter—but unraised by any party and thus inappropriate for a jurist to reach sua sponte.
  • Allegation: California woman is pulled over for driving with an expired registration, but is arrested when it is discovered she has an outstanding drug warrant. During the drive she begins vomiting, moaning, and screaming for help. The police officer tells her to stop faking. But she is not faking—she lapses into a coma and dies nine days later. Ninth Circuit: Qualified immunity. Dissent: Let’s go through the horrifying body-cam footage and explain why that’s wrong.
  • District court: You have a claim under the Americans with Disabilities Act for your inability to access city services, but your statute of limitations started running the day you were diagnosed with MS. Eleventh Circuit: No, it started running once you couldn’t access city services. Remanded.
  • This week the Eleventh Circuit gave us two important reminders: 1) Don’t put anything in an email that you wouldn’t want to see publicly disclosed in litigation, and 2) don’t you dare use the “cleaned up” parenthetical to change the meaning of a text (see footnote 1). Relatedly, you will soon be able to see exactly what employees at the United Network for Organ Sharing think about the residents of various parts of the country that are getting the short end of UNOS’s new liver-distribution policy.

Indiana has long been ground zero for aggressive civil forfeiture practices. (Where else would the government earn a comparison to Captain Ahab?) And now, IJ is tackling one of the most unique—and corrosive—features of Indiana’s forfeiture regime: private, for-profit prosecutors. Unlike every other state in the nation, Indiana farms out its forfeiture prosecutions to private lawyers on a contingency-fee basis. Forfeit more, profit more. Not cool. Also, not constitutional. In a class-action lawsuit filed last week, IJ is asking the courts to uphold a basic rule of law: Every forfeiture defendant has the right to a prosecutor who is financially disinterested, whose incentive is to do justice, not turn a profit. Click here for more.