Symbolic disarmament, major violators, and the hard part of judging.

John Ross · November 26, 2021

Friends, federal officials are in the main completely immune from claims for damages for violating the Constitution. But the Supreme Court has been clear that there is liability for “garden variety” search-and-seizure claims. So, over at Jurist, IJers Anya Bidwell and Nick Sibilla explain why the Court should grant review to a pair of cases and tell lower courts to stop tossing search-and-seizure cases.

  • The late artist Robert Indiana made a mint off of his painting of the word “LOVE,” with the letters arranged two by two and the O set at an angle. In this contractual dispute with the publisher of the similarly styled “HOPE,” was the trial court correct when it held that an arbitrator must determine the threshold issue of arbitrability? First Circuit: NOPE.
  • Merchants that do not accept American Express sue American Express for antitrust violations. The allegation? Amex prohibits participating merchants from “steering” customers to other cards that charge lower processing fees. The result is that Visa, MasterCard, and Discover face less incentive to compete on merchant fees, meaning higher fees even for merchants that don’t take Amex. Second Circuit: If there’s a claim here, folks who don’t take Amex are too remotely connected to enforce it.
  • Allegation: Man spends close to 25 years on death row after Philadelphia police fabricate evidence, coerce witnesses, withhold exculpatory evidence, knowingly present false testimony. Third Circuit: No qualified immunity. The right not to be framed is so obvious that detectives were on notice even without a factually analogous case. (Whether his suit is barred because he pled no contest to lesser, still serious charges in 2017 in order to secure his release is not a question for interlocutory appeal.) (Click here for some longform journalism.)
  • Maryland man obsessed with Bill Cosby rape allegations manages to have fabricated document (imputing tax fraud to one of Cosby’s accusers) added to docket in civil case against Cosby. For this, he is convicted of two counts of making false statements and sentenced to 32 months in prison. Third Circuit: That’s a slimy thing to do and it wasted a lot of people’s time, but it’s not actually a crime unless it was “material,” which the gov’t failed to prove. Set him free.
  • In which Judge Elrod of the Fifth Circuit has some fun in the footnotes: “For those who prefer acronymic efficiency, however, our holding is roughly as follows: RISD did not violate IDEA with respect to K.S. because, as the SEHOs correctly found at the DPHs: (1) the ARDC’s IEPs for K.S., which included PLAAFP statements, TEKS goals . . . .”
  • Does it violate the Constitution to put someone in a freezing cell for about four hours without shoes, a jacket, or a blanket? District court: Sure could. No qualified immunity. Sixth Circuit: Ah, but the defendant here is a federal officer. And you can’t sue a federal officer for violating the Constitution in this way. Dissent: The gov’t’s lawyers repeatedly declined to make that argument. We shouldn’t make it for them. [For more on federal officer immunity, please do consider giving a listen to this lovingly crafted podcast.]
  • After confidential informant buys $10 of marijuana in front of Detroit woman’s home, officers with the “Major Violators Unit” ram open the woman’s front door just as she is reaching it herself, causing injuries to her face that require corrective surgery. Sixth Circuit: Her claim that officers didn’t knock and announce should not have been dismissed. However, the city’s admission at a press conference (after the district court made its ruling) that officers in the Major Violators Unit frequently lied on search warrant affidavits doesn’t mean she can reopen discovery—earlier news reports prior to the ruling indicated substantially the same thing.
  • In 1994, man is convicted of sexually abusing his nieces on the basis of testimony from the victims and from a pediatrician who had examined the girls. Since then, evolutions in forensic medical science have displaced the pediatrician’s methods and four of the nieces have recanted. Eighth Circuit: That’s not enough to overturn a conviction.
  • Indonesian Christians apply for asylum. The Board of Immigration Appeals denies the request, Ninth Circuit affirms. They try again, claiming things have gotten worse back home. BIA denies again, Ninth Circuit affirms again. Is the third time a charm? BIA: No. Ninth Circuit: Well, maybe. BIA didn’t assess whether their status as evangelical Christians who spread the Gospel might lead to their persecution. Dissent: “following the law and not your heart . . . is the hard part of judging.”
  • When speaking on public property, one’s level of First Amendment protection depends on the type of “forum” one is in, ranging from “non-public forums” with the least protection to “traditional public forums” with the most. Here, the Tenth Circuit does a 110-page deep dive on the many ways Albuquerque failed to satisfy its burden when it restricted expressive activities on sidewalks and medians—both traditional public forums.
  • In early 2019, the “United Constitutional Patriots” began camping along the U.S.-Mexico border, seeking to capture people illegally crossing the border. They wore camo fatigues, carried firearms, said “border patrol” as they approached people, and then called the actual border patrol to take people into custody. One member of the group is convicted of impersonating a gov’t employee. Tenth Circuit: Conviction affirmed, but the conditions of supervised release (including a ban on incurring new credit charges and allowing gov’t to search his property and finances) are a bit much.
  • Does face-elbowing a non-resisting, secured arrestee violate clearly established Fourth Amendment law? Eleventh Circuit: Quite maybe-ly. To trial these claims against an officer and the city of Miami Beach must go.
  • Members of the Plowshares movement, a Catholic protest and activism group opposed to nuclear weapons, break into the Naval Submarine Base Kings Bay in St. Marys, Ga., where they engage in “symbolic disarmament” by defacing facilities with spray paint and human blood. When arrested and charged with a bevy of federal crimes, they raise the Religious Freedom Restoration Act in their defense. Eleventh Circuit: Arresting trespassers and vandals is, indeed, the least restrictive means of keeping trespassers and vandals out of secure military facilities.

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