Month: April 2021

Albina Roque called 911 on May 2, 2017, to report that her son, Jason, was threatening to kill himself. When officers from the Austin Police Department arrived on the scene, Jason was pacing in front of his house, with a black gun—later determined to be a BB gun—in his waistband. “I’ll fucking kill myself!” Roque said as he turned away from the officers and pointed the gun at his head.

“Put the gun down,” yelled one of the officers. Video footage shows what happened next: As Roque began turning back towards the officers, with the BB gun raised in the air, he was shot by Officer James Harvel. That shot caused Roque to drop the gun. Harvel then quickly fired twice more. The third shot killed Roque.

Roque’s parents sued Harvel in federal court for using excessive force against their late son in violation of his Fourth Amendment rights. Harvel countered by invoking the controversial doctrine of qualified immunity, which shields state officials from being held civilly liable if the actions that they are being sued over did not violate a “clearly established” constitutional right.

In a ruling issued this week, the U.S. Court of Appeals for the 5th Circuit denied qualified immunity to the officer who fired the fatal shot. “By 2017, it was clearly established—and possibly even obvious,” wrote Judge Don Willett in Roque v. Harvel, “that an officer violates the Fourth Amendment if he shoots an unarmed, incapacitated suspect who is moving away from everyone present at the scene.”

In Tennessee v. Garner (1985), the U.S. Supreme Court said that a “police officer may not seize an unarmed, nondangerous suspect by shooting him dead.” Harvel and his lawyers argued that the present case is different. “All of the officers,” they maintained, “including Officer Harvel, believed that after the first shot, Roque was still armed. Roque was not compliant with police commands, was not running away or surrendering, but was armed, mobile, and capable of firing his weapon at his mother.”

The 5th Circuit took a different view. “As the video indisputably shows, [Roque] was unarmed and stumbling into the street, moving further away from anyone else,” after Harvel shot him the first time. “Whether a reasonable officer would have thought Jason was incapacitated or a threat to his mother,” the Court held, “is a question for the jury to decide.”

It’s a welcome result. All too often, the federal courts seem to go out of their way to defer to law enforcement in such cases. With qualified immunity denied to the officer here, this case is one big step closer to trial.

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In an insightful contribution to the Yale Journal on Regulation online symposium on Adam Cox and Cristina Rodriguez’s important new book, The President and Immigration Law, UC Berkeley law Professor Daniel Farber describes how America’s system of immigration restrictions is inimical to the rule of law:

Here are the basic facts on the ground: Roughly eleven million people are living in the U.S. without legal permission, half of them having been here for ten years or more. The deportation system is capable of handling only a tiny fraction of those millions. At least for those who avoid arrest for serious crimes, deportation is seemingly a result of bad luck, aggressive enforcement officers, or shifting currents in immigration policy…

At present, Congress seems incapable of either providing a pathway to permanent status for settled immigrants or the wherewithal to deport millions of them. Staunch immigration opponents themselves seem to lack the stomach for a massive deportation program. Even our most vehemently anti-immigration president, Donald Trump, never asked Congress for the resources to identify and round up ten thousand people a day for about three years, which is what it would take to remove the current undocumented population. On the other hand, there is bitter opposition to regularizing the status of undocumented long-term residents….

Among its faults, the current system is at odds with the rule of law. The rule of law requires that government decisions deeply impacting the lives of individuals be based on a clear lawmaking process, not the discretion of executive officers. It also requires that the consequences of individual actions be predictable and clear, and that the legal system give people basic security in their ability to live their lives. No legal system can fully satisfy these aspirations, but immigration law falls dramatically short. Since any one of millions of people could be deported, none enjoy full security in their lives. As an operational matter, selection of individuals for deportation is determined by the executive branch, either at the retail level by immigration officers or wholesale through presidential policies. The statutes created by Congress tag millions of people as possible targets for deportation but fail to create workable rules for determining who actually gets deported….

The problem is not just that the system is either too draconian or too lax, depending on one’s view of immigration policy. It is also that immigration law, in practice, deviates so far from our norms about how policy should be made and how serious sanctions should be imposed on individuals. That should be a grave concern to all of us, regardless of our policy positions on immigration.

As I noted in my own contribution to the same symposium, the problem here is just one facet of the broader crisis in our legal system, where we have vastly more law—and thus vastly more lawbreakers—than even the most aggressive law enforcement officials can possibly apprehend and punish. As a result, undocumented immigrants are far from the only people who remain free only because of the discretionary decisions of law enforcement agencies, prosecutors, and other executive branch officials. The same applies to the tens of millions of Americans who have, for example, violated federal drug laws, or the many thousands of small businesses who have violated federal regulations or tax laws at one time or another. But the immigration situation is particularly problematic because of the severe consequences of detention and deportation, and the very weak due process protections for those caught up in the system.

Farber argues that there is no easy solution to the problem, though he does suggest some modest reforms. I fear he is right about that. But I do outline some incremental improvements in my contribution to the Yale Journal on Regulation symposium, including subjecting immigration policy to the same constitutional constraints that apply to virtually all other areas of federal policy (see also my 2019 Atlantic article on this subject). This could be achieved through a combination of judicial review and legislative reform.

Ultimately, however, the best way to deal with situations where the rule of law is undermined by having too many laws, is to reduce the number of laws. In the immigration field, that means making it much easier for would-be migrants to enter legally. In the legal system, more generally, it means substantially reducing the number of laws and regulations to which people are subject.

The rule of law is not the only important principle out there, and cannot always be prioritized over other goals. I recognize that most, if not all, of these laws are on the books because they enjoy substantial support from the general public, influential interest groups, or some combination of both. All too often, both left and right are intent on imposing their preferred criminal laws and regulations on the public, while giving little if any consideration to the possible impact on the rule of law. Wide-ranging executive discretion may even be a feature rather than a bug, so long as the people in power belong to our preferred party.

It may, therefore, turn out that we simply lack the political will to make the reforms needed to restore the rule of law in immigration policy—or anywhere else. Perhaps we just don’t value the rule of law as much as the rule of men and women whose agenda we like. But, if so, we should at least recognize the tradeoff we are making, and do what we can to minimize the harm at the margin.

But it is also possible that many people simply haven’t given much thought to the tradeoffs involved. Once they do see them, they may be willing to make some sacrifices to strengthen the rule of law, even if it means some of their own preferred laws have to be narrowed or—potentially—taken off the books entirely. Here, as elsewhere, the first step towards recovery is recognizing that we have a problem.

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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

Should federal courts of appeals act as advocates for the gov’t and raise defenses—unprompted—on the gov’t’s behalf? You can probably guess where we come down on this. For more details, dig into a recent IJ cert petition featuring a buffet of Younger abstention, sua sponte decision-making, and the Dormant Commerce Clause.

• Here’s a legal-ethics brain-twister: If you previously served as the general counsel for a nonprofit, can you represent clients suing that nonprofit over matters in which you previously represented the nonprofit? If you said, “Yes,” then you, too, might end up having your license to practice law suspended for 90 days, as the D.C. Circuit did to Judicial Watch founder and former general counsel Larry Klayman.
• Professional photographer takes photos of Prince, and then licenses one of the photos to Andy Warhol for a Rolling Stone piece. Andy Warhol proceeds to make a series of paintings of Prince based on the photo. Photographer: That’s copyright infringement. Andy Warhol’s Foundation: It’s fair use. District Court: Fair use. Second Circuit: Let’s not go crazy.
• New York City sues oil companies under state nuisance law for damages stemming from global warming. But according to the Second Circuit that state law is preempted by federal common law because of the issue’s interstate and international character. Further, federal common law “functions much like legal duct tape,” and gets ripped off when Congress speaks. Which it has done with the Clean Air Act. And there’s no role for international federal common law either because international diplomacy is a tricky thing federal courts must shy away from. Thus, NYC, no claim for you.
• Does the Fair Housing Act—which prohibits racial discrimination in housing—require landlords to address tenant-on-tenant harassment? Second Circuit (en banc): Landlords are not the boss of their tenants’ behavior towards other tenants, so no. Case dismissed. Dissent: If the landlord didn’t intervene because of the tenant’s race, that’s actionable. The case should go forward.
• Retired probation officer strolling around New Rochelle, N.Y. is approached by two plainclothes police officers. Retiree’s version: The officers didn’t identify themselves as police, were physically rough, over-tightened the handcuffs, and banged my head on the (unmarked) police car. Officers: We identified ourselves, used only reasonable force to restrain the recalcitrant suspect, and immediately released him once we verified that he was not the misdemeanant we were seeking. District court: The retiree “should be thanking his lucky stars” his injuries were minor; this case is way less important than many of my other cases; and the defendants win. Second Circuit: Given the parties’ different accounts of what happened, there are obvious fact disputes bearing on whether the officers used excessive force. To trial the case must go. And while we’re at it, no qualified immunity if the retiree’s account of the incident is accurate.
• Publicly intoxicated man is placed in the Botetourt County, Va. jail to sober up. A few hours later, he’s found dead. Man’s estate sues his custodians for displaying deliberate indifference to his serious medical needs (a Fourteenth Amendment violation). District court: Case dismissed. Fourth Circuit: Not so fast. The man was lethargic, semi-conscious, and barely able to walk, and the officers knew he had consumed prescription narcotics—all strongly suggestive of a drug overdose, which reasonable officers would have acted to address. The case may proceed to discovery.
• The federal government maintains the Terrorist Screening Database (TSDB, as it’s known in the biz), which is used to screen travelers in airports and at the border. Twenty-three people (who allege they are in the TSDB) sue to invalidate the database under the Fifth Amendment’s Due Process Clause. Fourth Circuit: Much like the Sixth and Tenth Circuits, we emphatically decline to facially invalidate the TSDB.
• Police hear from a confidential informant that a guy with a certain physical description and license plate number is a drug dealer. Later the CI tells the police that the same guy told the CI he just got some new product and it’s available for sale. Officer finds a man who matches the description and sees him shake someone’s hand in a parking lot. Based on his “training and experience” the officer initiates a stop-and-frisk and finds illegal drugs. Fourth Circuit: Motion to suppress should have been granted. Handshakes just aren’t that suspicious a thing. Concurrence: The whole “training and experience” thing has gone way too far.
• Woman starts using prescribed opioids as a teen following an injury and gets hooked. She fills forged prescriptions, using half and selling half. She estimates that she sells 52k pills over two years, though the gov’t’s math is a bit higher—175k pills. She’s sentenced to 210 months. Fourth Circuit: Way too long. Dissent: Her sentence was at the low endpoint of the Sentencing Guidelines. It may not be a sound policy, but that doesn’t make it legally unreasonable.
• Elderly Texas inmates housed in a geriatric unit allege that the prison warden didn’t do enough to respond to the COVID-19 dangers. By the time of trial, nearly half of the inmates had tested positive and 19 had died. District court: The warden isn’t doing enough. Here’s 17 things he must do going forward, including weekly testing and following cleaning plans. Fifth Circuit: This litigation helped motivate prison officials to act, saving countless lives, but a forward-looking injunction is unwarranted.
• Allegations: Transgender woman is arrested for unlawful possession of a weapon and booked at the Dallas County, Tex. jail. Officer demands that she show him her genitals so he can confirm whether she has a penis or a vagina. She complies. Over the next couple of years, she’s repeatedly arrested, classified as male, held with male inmates, and forced to shower with them. She sues, among others, Dallas County and the county sheriff in her official capacity. Fifth Circuit: Accepting the complaint’s allegations as true, the county had a policy of strip-searching transgender detainees for the sole purpose of determining their gender and classifying them solely on their biological sex. Whether or not that policy violates the U.S. Constitution is for the district court to decide on remand.
• Suicidal man waves gun in the air, ignores police commands. An Austin, Tex. officer shoots him. The man drops the gun and stumbles away. The officer shoots twice more, killing him. Officer: I didn’t see him drop the gun. Fifth Circuit: It’s pretty clear from the video, and—since it’s clearly established that it’s unreasonable to use deadly force after a suspect no longer poses a threat—this goes to a jury. No qualified immunity.
• Shawnee State philosophy professor refuses to refer to transgender student by the student’s preferred pronouns because his religious convictions forbid it. After the university rejects several proposed accommodations (including using the student’s preferred pronouns while including a statement in the syllabus that it is being done under compulsion), the professor eventually settles on using the student’s last name. The student thereafter actively participates in class and receives a high grade. The professor is disciplined. He sues alleging violations under the First Amendment’s Free Speech and Free Exercise Clauses. Sixth Circuit: And his case should not have been dismissed.
• Want to run as an independent for statewide office in Michigan? Great! All you’ll need is 30k signatures from registered voters obtained more than three months before the election, before you even know who the major-party nominees are, with least 100 of those signatures from half of the state’s 14 congressional districts. That’s in contrast to major party candidates who just have a primary or convention. Also, just FYI, no independent candidate has actually succeeded in making the ballot in the 30 years this system has been the law. Still want to run? There’s good news! The Sixth Circuit found all this to violate the First Amendment, and upheld the district court’s new 12k signature threshold.
• Is the CDC’s order prohibiting evictions for non-payment of rent an example of “other measures” in this list of powers Congress has delegated to the HHS Secretary—”[I]nspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary”? Probably not, says the Sixth Circuit, denying a motion to stay the district court’s judgment filed by a group of landlords.
• Missouri man walks into an IRS office and volunteers that he owned jewel mines, was in deep with the drug cartels, and New Mexico authorities were investigating him for embezzlement. Several months later, authorities search his house, discover 364k $1 coins depicting deceased U.S. presidents. IRS agents seize the coins, remove the packaging, run them through a coin counter, deposit $364k in an IRS account, and place the coins in circulation. Yikes! The coins actually belong to the man’s ex-wife (she got them in the divorce). The feds transfer the $364k in the account to her, but she sues alleging that she’s owed more given that the coins are valuable collector’s items. District court: Indeed, the guvvies owe the woman $95k. Eighth Circuit: Sovereign immunity. The agent’s decision to send the coins for processing (rather than saving them as he discovered them) was discretionary, so the ex-wife can’t get help under the Federal Tort Claims Act.
• Denver police officers receive training that people have a First Amendment right to record them in public. But only courts can say what’s clearly established, says the Tenth Circuit, and we haven’t said so yet (and won’t here). So qualified immunity for police who illegally searched a man’s tablet in retaliation for his filming their use of force while arresting someone.
• And in en banc news, the Third Circuit will not reconsider its ruling that federal law prohibits the operation of safe-injection sites, where drug users can inject drugs under the supervision of medical professionals.

It is completely legal to travel with any amount of cash on domestic flights. And if you check the Transportation Security Authority’s online list of items that are—and are not—prohibited (475 items), you will not find any restrictions on cash. And yet TSA screeners detain travelers traveling with money and turn them over to law enforcement, often DEA, who will take their money with no suspicion of criminal activity and without filing criminal charges and then subject them to a months- or years-long bureaucratic maze to try and get it back. Which is unconstitutional. And this week, a federal judge rejected the gov’t’s motion to dismiss an IJ class action challenging TSA’s and DEA’s airport cash seizure practices. Click here to learn more.

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With a Democrat in the White House and a $2.2 trillion infrastructure plan on the table, excitement about high-speed rail is on the rise again. A map by graphic designer and transit advocate Alfred Twu, featuring possible routes for bullet train lines crisscrossing the U.S., has been making the rounds on Twitter. The map was the subject of a recent Vox article that was tweeted out by Transportation Secretary Pete Buttigieg.

“Gen Z is dreaming big,” he wrote. “It’s time we all did the same.”

“I want her so fucking much,” which was accompanied by a picture of Twu’s map, was how one viral tweet summed up the prevailing mood back in January of 2020.

But anyone taking the promise of high-speed rail seriously should consider California’s disastrous attempt to build a bullet train in recent years—the project is unfinished and over budget, and one of its key political backers has turned against it.

Building high-speed rail requires bulldozing neighborhoods and disrupting communities, and would be a drain on a state’s finances if completed. In 2009, President Barack Obama proposed building 8,600 miles of high-speed rail and received $10.1 billion from Congress toward that goal. The money went to upgrading Amtrak instead.

The Cato Institute’s Randal O’Toole estimates that based on the costs and setbacks of the California project, building 8,600 miles of high-speed rail would have cost “well over $1 trillion dollars.”

Buttigieg’s definition of “dreaming big” is applying 20th-century technology to 21st-century problems.

When funding for the initial part of the California High-Speed Rail line was voted on in 2008, it was supposed to link Los Angeles with San Francisco for about $33 billion and take about a decade to complete. As the years dragged on, the cost ballooned to $100 billion at one point and the project had to be scaled back significantly to a shorter section between Merced and Bakersfield in California’s Central Valley.

Even with all the setbacks, including a lack of private investment that champions of the California rail line were always banking on, local California politicians continue to push for federal dollars.

During the 2020 presidential campaign, Joe Biden promised to make sure that America had the “cleanest, safest, and fastest rail system in the world.” Buttigieg and Congress should pay more attention to California’s costly disaster than a map circulating on Twitter.

Produced by Paul Detrick

Music: “Hall of the Mountain King” by Kevin MacLeod, Creative Commons Attribution 4.0 license. https://creativecommons.org/licenses/by/4.0/

Photos: Murray/ZUMAPRESS/Newscom, Oliver Contreras / Pool via CNP / SplashNews/Newscom, Ken Cantrell/ZUMA Press/Newscom, Gary Reyes/TNS/Newscom, Photo 98224660 © Blackzheep | Dreamstime.com, Photo 136151613 © Cougarsan | Dreamstime.com

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