Shooting motorists, slapdash practices, and noble projects.

John Ross · December 17, 2021

In 2019, in a fit of pique, DHS agent Ray Lamb pointed a loaded gun at the head of our client, Kevin Byrd, and pulled the trigger. The gun jammed. Then Agent Lamb used his badge to get police to detain Byrd, though he had committed no crime. But when Byrd sued, the Fifth Circuit said there is no cause of action under the Constitution that victims of law enforcement misconduct can bring against federal officials. Now IJ is asking the Supreme Court to review the case. And, notably, so is Agent Lamb, who, like IJ, wants the Court to resolve a circuit split on this question: Do federal officials have absolute immunity against constitutional claims? Click here to read our reply brief.

  • A think tank seeks to compel FERC to disclose the names and addresses of the property owners in the path of a planned-but-since-scuttled pipeline to see if the agency is complying with its legal notice obligations. D.C. Circuit: A noble project! But also a noble project you can pursue without specific names and addresses, so FERC doesn’t have to give you those.
  • Third Circuit: Cops can’t just go around shooting motorists simply for fleeing a traffic stop. So no qualified immunity for an Elizabeth, N.J. officer who shot a driver in the arm. A jury will have to decide if the officer reasonably believed officers or the public were in danger sufficient to justify deadly force. Three-judge concurrence: The officer violated department policy, and it’s reasonable to hold officers accountable when they do that. Further, it’s unreasonable to pretend that officers keep up to speed on “maybe hundreds or even thousands of applicable court opinions.”
  • Allegation: Violating department policy, Dallas police officer continues to kneel on the back of a mentally ill man long after he’s been subdued and restrained. Other officers stand around, joke as the man loses consciousness and then dies from asphyxiation. District court: Qualified immunity. Fifth Circuit: Reversed. The victim’s mother can sue the kneeling officer and several of the others.
  • If you arrive at page 63 of this opinion, what you’ll learn is that: “We’ve arrived at page 63 of this opinion, but we’re still not ready for the merits.” So says the Fifth Circuit en route to denying the Biden Administration’s attempt to end the “Remain in Mexico” policy. Along the way it gleefully reminds us of the “what’s good for the goose” maxim by relying on Supreme Court precedents that arose from much less politically conservative results. The Stuart kings also make an appearance.
  • SEC prosecutes an accountant. In addition to defending herself in the agency’s proceedings, she sues the agency to try and enjoin the prosecution. Can she do that? Yes, says the Fifth Circuit sitting en banc. “All civil actions” means “all civil actions.” Concurrence: Woodrow Wilson was a bad guy who did way too much Hegel. Dissent: This disrupts the whole scheme Congress set up. Plus, “We are supposed to be chary—not champing at the bit—to create circuit splits.”
  • There’s no need for an injunction pending appeal of a United Airlines policy requiring employees to get vaccinated, says the Fifth Circuit, without comment. Dissent: This religious liberty case is an “extraordinary case” where money damages won’t be enough because you can’t undo a vaccine.
  • In which the Fifth Circuit becomes the latest circuit to address the question “Can the Bureau of Alcohol, Tobacco, Firearms and Explosives redefine ‘machineguns’ to include bump stocks?” And they have sided with the others by answering “Yes.” In doing so they avoid the pesky question of whether Chevron deference applies.
  • After 14 states challenged the OSHA vaccine mandate for the staffs of Medicare- and Medicaid-certified providers, a district court in Louisiana enjoined the mandate nationwide. The feds seek a stay of the injunction pending appeal. Fifth Circuit: Which we deny. There are hard questions here, but you need to show more than the existence of hard questions to get a stay. But the injunction should only apply within the 14 plaintiff states.
  • Royal Oak, Mich. driver (with a BAC of .27) ignores officer’s instructions to pull over and heads through the White Castle drive-thru. After the driver pays for his order, the officer attempts to block his exit, but the man maneuvers through. Officer fires four shots, kills the driver. Sixth Circuit: The officer reasonably believed the driver would endanger the public. QI granted.
  • Three teens convicted of 1995 East Cleveland, Ohio murder are exonerated after it’s revealed that detectives fabricated a statement by a 14-year-old eyewitness who later recanted (and that prosecutors withheld other eyewitness accounts identifying a different perpetrator). Jury: The detectives must pay $5 mil to each exoneree. Sixth Circuit: No need for a new trial. The jury instructions were fine.
  • The City of Chicago allegedly has a slapdash practice of towing cars and destroying them while providing inadequate notice to the owners. (NB: When it comes to cars, Chicago does a bunch of other terrible things. And IJ is suing over it too.) Did the district court correctly certify a class action to challenge this system? Seventh Circuit: Honestly, we don’t know. In fact, we’re pretty confused about what the district court said and did. Case remanded “for another try, if that is the course the parties choose to chart.”
  • Eighth Circuit: Cedar Rapids, Iowa police did not conduct an “arrest” when they held two men at gunpoint and in handcuffs for 12 minutes. Also, since officers didn’t have a description of one of the suspects they were looking for, they had reasonable suspicion to stop anyone. (NB: Check out IJ’s newly filed cert petition challenging the Eighth Circuit’s wildly broad definition of a Terry stop.)
  • Criminal defendant successfully appeals her conviction, convincing the Ninth Circuit that the government failed to properly establish venue in California. But the victory is only temporary—the en banc Ninth Circuit reverses the ruling. Uh oh! By reversing the venue ruling, the en banc court un-mooted the defendant’s argument that the trial court applied the wrong standard to evaluating her self-defense claim, but the court didn’t remand that issue. Over 300 days later, the defendant and the government jointly move to recall the mandate for reconsideration of that issue. Ninth Circuit (en banc): Recalling the mandate isn’t a substitute for a timely motion to reconsider. Motion denied (over a dissent).
  • Institute for Justice (2011): Your summarist is asked by his boss for an opinion on the then-recently-filed case Kerr v. Hickenlooper, a lawsuit alleging that Colorado’s Taxpayer Bill of Rights (TABOR) violates the Guarantee Clause of Article IV of the Constitution. “The Guarantee Clause?! Courts have held that nonjusticiable for a century. This case is going nowhere.” Tenth Circuit (2014): The case can go forward. SCOTUS (2015): Take another look at that. Tenth Circuit (2016): Okay, the legislator plaintiffs are out, and the district court has to determine if political subdivisions can challenge TABOR. District Court (2017): The political subdivisions lack standing. Tenth Circuit (2019): No they don’t. Tenth Circuit (en banc, 2021): Whatever; they still lose … just as your summarist predicted!
  • Allegation: Women is convicted of child abuse after Alamosa County, Colo. social worker reports that she confessed. After the conviction is overturned, the woman sues. Social worker: There’s no earlier case that says social workers can’t lie about confessions. Tenth Circuit: There doesn’t need to be. That’s obvious. Dissent: The social worker needed a specific case to know she couldn’t fabricate evidence.
  • California man sends a flood of threatening and abusive messages to family and friends of victims of the Marjory Stoneman Douglas High School shooting. Federal cyberstalking prosecution ensues. But wait! Is the federal cyberstalking statute invalid under the First Amendment? Eleventh Circuit: It is not. Conviction affirmed.
  • And in en banc news, the Fifth Circuit (amid a flurry of separate opinions) will not reconsider its decision that qualified immunity is unavailable for a Texas high school teacher who allegedly retaliated against a student who refused to write out the Pledge of Allegiance.
  • And in more en banc news, the Sixth Circuit will not grant initial en banc consideration to a challenge to OSHA’s employer vaccine requirement. Judge Moore approves because hearing cases en banc is terrible. Judges Sutton dissents that Congress never gave OSHA this power, while Judge Bush dissents that Congress couldn’t have given OSHA this power if it wanted to.

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