Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New case! Last year, Macon-Bibb County, Ga. officials demolished IJ client Eric Arnold’s house without any notice or any kind of court proceeding—one of 800 houses to be demolished in the county over the last three years as part of a secret code enforcement program that lacks the most basic due process safeguards. Eric was renovating the house, which he planned to give to family; and while there was still work to do, the yard was neat, the exterior was clean, and it was in vastly improved shape compared to when he bought it. Click here to learn more.
New case! In 2022, a Broward County, Fla. officer arrested IJ client Jennifer Heath Box on a warrant for a woman with a somewhat similar name but completely dissimilar age, address, SSN, driver’s license #, and much, much more. (It turned out officers in Texas had mistakenly put Jennifer’s driver’s license photo on the warrant.) She spent three days in jail in miserable conditions that included a strip search, freezing temperatures, and a male inmate who repeatedly tried to get into her cell when she was alone. “[The officer] had so much evidence that he had the wrong Jennifer, and he either ignored that evidence or deliberately misled other Broward County officials,” says IJ Attorney Jared McClain. “We must be able to hold government officials accountable when they overlook glaring evidence and arrest the wrong person.” Click here to learn more.
- Ecuadoran national challenges his conviction for illegal reentry into the United States on the grounds that his initial removal was unlawful and the prohibition on reentry was enacted for racist reasons. Second Circuit: His initial removal was lawful. And though the law’s legislative history contains some shocking comments—one legislator observed in 1952, “though I am not a follower of Hitler . . . there is something to it”—those views can’t be attributed to all of Congress.
- “Ghislaine’s in prison?!” Second Circuit: And there she will stay.
- Fifth Circuit: Judicial estoppel means if you say the trust agreement was a contract for purposes of the motion to dismiss, you’re stuck with that at summary judgment. Dissent: Speaking of holding people to what they say, the district court never said anything about judicial estoppel, so why should we?
- NFL Hall of Famer and former cheesehead Brett Favre took great offense to a few phrases his fellow Hall of Famer Shannon Sharpe uttered on a radio show after news broke that Favre was in hot water over potentially misusing public funds. One was: “The problem that I have with this situation, you’ve got to be a sorry mofo to steal from the lowest of the low.” Sorry mofo or not, Favre sues Sharpe for defamation. District court: That’s all “mere rhetorical hyperbole.” Case dismissed. Fifth Circuit: Perhaps, but we’re gonna affirm because Sharpe was either expressing opinion or just relying on “publicly known facts.”
- University of Tennessee pharmacist student posts statements to social media with accounts that never identify her as a student at the school. Nevertheless, someone at school finds out and takes offense, calling them “sexual,” “crude,” and “vulgar.” She is reprimanded twice, and the second time a board recommends she be expelled (although she successfully appeals). Did school officials unconstitutionally retaliate based on the content of her speech? Sixth Circuit: She’s pleaded a claim and enough to get past qualified immunity at this stage.
- Springfield, Mo. school employees are compelled to attend “equity training” where they must complete online quizzes parroting the district’s views, even if they disagree with them. When they express views like “Kyle Rittenhouse acted in self-defense” they are told they are “wrong” and “confused.” Several employees sue, alleging violation of their First Amendment rights. District court: That’s not only wrong, it’s so frivolous that you owe attorneys’ fees to the school district. Eighth Circuit: It’s wrong, but it’s not that wrong.
- Ornery Oregon state senator is made to give 12 hours’ notice before he enters the state capitol in 2019 after making threatening remarks. He sues for First Amendment retaliation, and after a successful trip to the Ninth Circuit (2022), he wins in the district court. Ninth Circuit (2024, unpublished): Who’s to say whether he’s right or wrong, but qualified immunity and standing doctrine together make this rabblerouser’s claims kaput.
- At George Floyd protest in Salem, Ore., officer allegedly fires rubber bullet into crowd, hitting a protester in the eye (ending her promising collegiate athletic career). Officer: I didn’t shoot into the crowd; she must have been injured by another protestor. Jury: Don’t believe that; pay her $1 mil. District judge: Qualified immunity! Ninth Circuit (unpublished): No QI; pay up.
- For those looking for a Title VII case that tackles “sex-plus” (also known as “intersectional”) claims as well as mixed-motive theories of liability, there’s a lot going on in this Eleventh Circuit case, even though the older women lose their discrimination and retaliation cases.
- Allegation: Georgia state police pull over truck driver and detain him for 91 minutes. He’s asked intrusive questions about his religion, and his truck was searched without consent, all because he was on FBI’s No Fly List—even though the FBI notice told the officers they shouldn’t detain somebody based on presence on the list. Eleventh Circuit: The notice confirms what should have been obvious: there wasn’t reasonable suspicion (much less probable cause) to do any of that. No qualified immunity.
- Minister is dismissed and excluded from Polk County, Ga. jail’s volunteer ministry program following a dispute with jail officials about baptism. The minister sues two jail officials, alleging that his exclusion from the program was retaliatory and based on the officials’ unbridled discretion, in violation of his free-speech rights. Eleventh Circuit (over a partial dissent): The minister was engaged in protected speech and the officials’ unbridled discretion to deny participation in the program violates the First Amendment. No QI for the officials on either claim. Reversed and remanded.
- Are city council meetings in Homestead, Fla., a traditional public forum, a limited public forum, a nonpublic forum, or some different fourth thing? Eleventh Circuit (en banc): Our case law got too far out of step with Supreme Court precedent, but we now confirm that it’s a limited public forum. So the future exclusion of the plaintiff—a self-styled “citizen activist” who previously got thrown out for flipping the bird, grabbing his crotch, and cursing—must be viewpoint neutral and reasonably tailored.
- In which the Eleventh Circuit‘s Judge Newsom voices well-founded “suspicio[n] of court-concocted abstention rules that, in substance if not form, deprive federal courts of jurisdiction that the Constitution expressly authorizes and that Congress has expressly vested.” Sadly, in dissent.
- And in en banc news, the Ninth Circuit will not reconsider its decision that the Suquamish Tribal Court had subject-matter jurisdiction over the Tribe’s suit for breach of contract concerning its insurance claims for lost business and tax revenue and other expenses arising from the suspension of business operations during the onset of the COVID-19 pandemic. Sixteen judges issue a statement defending the denial, while six dissent. Somewhere, Neil Gorsuch starts salivating.
Victory! Friends, if you’ve been reading this humble newsletter for some time, you will no doubt remember IJ’s three separate lawsuits against the FBI for raiding a Beverly Hills, Calif. safe-deposit box business, lying to a judge, and seizing hundreds of millions of dollars of assets from box owners who were not accused of any crime. Earlier this year, in Case #1, the Ninth Circuit ruled that the raid violated the Fourth Amendment. And this week, in Case #3, the feds decided to throw in the towel after their incompetent property-management practices (described as “malpractice” by one FBI evidence technician) came to light. Which means IJ client Don Mellein will be compensated for 63 gold coins that went missing after being left unsecured. (Moreover, a judge has ordered the gov’t to pay $21k for stonewalling discovery.) Click here to learn more. And stay tuned for updates on Case #2, which is pending before the D.C. Circuit.
