Court Says No One's Responsible For Detainee Who Committed Suicide While Jailers Crafted 'Punisher' Posters

from the just-another-day-in-the-life-of-carceral-America dept

Via the Fifth Circuit Court of Appeals comes a depressing tale about how cheap life is in jail, even for those who haven't been convicted of a crime.

It starts with a family argument. Jose Luis Garza was intoxicated and arguing with his brother. His mother expressed her fear for his safety to the Donna police officers she had called, stating she "feared for his life" and was "afraid he would hurt himself." The officers provided the only assistance they knew how to give: they arrested Garza, charging him with "assault by threat."

Garza was taken to the PD's holding facility -- not a prison or jail but somewhere for cops to stash arrestees until they were moved to an actual prison/jail. Garza was placed in a cell with a camera, but soon after being put there, he blocked the camera. The person monitoring the cameras did not notice it had been blocked. This DPD employee claimed watching the cameras wasn't her job once the jailers started their shifts.

The jailers started their shift at 8 a.m. They were required to check on detainees every hour. These officers -- Esteban Garza and Nathan Coronado -- may or may not have heard Jose Garza banging on his cell door to get their attention. The record simply doesn't show. The jail log shows a cell check was performed at 8:10 a.m., but there's reason to doubt this check was ever performed. More on that in a bit.

When the jailers arrived, they began the important work of… making posters. From the decision [PDF]:

After that point, the jailers worked on signs that DPD’s police chief, Ruben De Leon, directed them to put up in the jail. One read “Welcome to Donna Hilton,” and another showed the logo of the Punisher, a comic-book character known for carrying out vigilante justice.

This is what the jailers were doing instead of being jailers and paying attention to their detainees. This is the result of their poster-making efforts.

Occupied with the signs, the jailers missed that Garza had hanged himself, and it took the chance arrival of agents from U.S. Immigration and Customs Enforcement (ICE) for Garza’s suicide to be discovered. The ICE agents had arrived at 8:40 AM and found him at 8:49 AM. It was unclear how long he had been hanging.

Let's just pause for second and marvel at how awful you have to be at your job for ICE agents to be the nominal heroes of this tragic story. These would be ICE agents, employed by ICE of #AbolishICE fame. ICE agents aren't known for their warmth, competence, or ability to treat anyone they come into contact with as human beings. Fortunately for these ICE agents, the detainee was already dead, preventing them from having to dip into their minuscule reserves of empathy.

But if ICE hadn't shown up, Garza may have been left hanging for hours. Sure, jailers were required to perform hourly cell checks, but the chief wanted posters made, and that took obvious priority. The most important thing was to let detainees know they were being mocked ("Welcome to the Donna Hilton") and in the custody of law enforcement officers who view a comic book vigilante killer as role model.

And about that hourly welfare check… here's what actually happened. A footnote in the decision indicates the jailers never checked on Garza and their first encounter with him occurred after ICE agents showed up and discovered his dead body.

Jailer Garza added the 8:10 AM check to the jail’s cell-check log after Garza’s death and after the Texas Rangers concluded their post-incident investigation. The actual occurrence of the check is thus a sharply contested fact issue.

This indifference to the condition of their detainee naturally resulted in a lawsuit. But, according to the Fifth Circuit, there's nothing in it for the plaintiffs. They pointed to the posters -- the ones being crafted while Garza hung himself -- as indicative of the Donna PD's official stance on the mistreatment of detainees. This is too much of a stretch for the court.

Appellants’ conditions theory centers on the signs that Ruben De Leon, DPD’s police chief, ordered installed in the jail. Those signs, as noted, bore the message “Welcome to Donna Hilton” and the Punisher logo, respectively, and Jailers Garza and Coronado were assembling them at the critical time on February 19. Appellants view the Donna Hilton sign as “mockingly invok[ing] the torture of POWs.” Donna officials venture a positive interpretation of the sign. De Leon said he “wanted buy in from the jailers and the staff to remember that we’re here to serve – the people who come in, some people call them prisoners. I call them customers.” Robert Calloway, a Texas Ranger who investigated Garza’s death, saw it as a reference to the Vietnam POW camp, as Appellants do.

Appellants view the Punisher logo as “favorably advocat[ing] vigilante violence.” At summary judgment, Appellants argued at length for a “link between Punisher imagery and abusive police behavior.” Among other sources, they relied on a dissenting opinion in a recent Eighth Circuit case, which, citing Wikipedia, explained that the Punisher was an “antihero” figure “created by Marvel Comics in 1974 as an antagonist to Spider-Man,” who “considers killing, kidnapping, extortion, coercion, threats of violence, and torture to be acceptable crime fighting tactics.”

In Appellants’ view, the signs, taken together, announce an “official policy of prisoner mistreatment” or “official encouragement of intentional mistreatment of detainees.” They argue that the signs should thus be categorized as a “condition” of the confinement to which Garza was subjected. The signs “served no valid governmental purpose,” and their installation caused Garza’s constitutional deprivation because it preoccupied Jailers Garza and Coronado to the detriment of their core duties.

The signs certainly aren't helpful and do little to assure detainees they'll be taken care of properly during their stay, but the appeals court agrees with the lower court: the signs the jailers crafted while allowing a detainee to hang himself are not indicative of inhuman conditions.

Appellants’ conditions theory is an effort to fit a square peg into a round hole. Prior conditions cases have concerned durable restraints or impositions on inmates’ lives like overcrowding, deprivation of phone or mail privileges, the use of disciplinary segregation, or excessive heat. See Yates v. Collier, 868 F.3d 354, 360 (5th Cir. 2017) (heat); Scott, 114 F.3d at 53 & n.2 (collecting other examples). The import of the Donna jail’s signs is too nebulous to amount to an official rule or restriction, and the signs do not operate as a continuing burden on inmate life in the way that dangerously high temperatures or overcrowded cells do. As such, the district court was correct to reject Appellants’ conditions theory.

The signs are also not indicative of official policies either. The appeals court does find that the jailers' actions -- making posters rather than checking on detainees -- could be construed as deliberate indifference, but decides the case can be dismissed on other grounds, rather than allowing that argument to develop.

Appellants do not attribute the actions of the arresting officer, Silva, or the senior officers who performed CPR, Rosas and Suarez, to any particular policy or custom. What they argue for Silva, Rosas, and Suarez is that De Leon’s order to post the “Welcome to Donna Hilton” and “Punisher” signs announced an official policy of detainee mistreatment. The import of the signs is too general and inexact for the signs to constitute the sort of specific directive required for municipal liability, and it is too nebulous to constitute a moving force. The episodic acts or omissions of these employees therefore cannot be attributed to the City.

And, since the police chief was unaware a prisoner was busy hanging himself, his decision to task his jailers with making posters cannot be seen as deliberate indifference either.

Nothing in the record indicates that De Leon was aware of Garza’s presence at the jail, much less that he instructed the jailers to disregard Garza in favor of installing the signs. It thus cannot be said that De Leon’s directive was deliberate in the sense meant by Pembaur or that it was tailored to the particular situation of Garza’s confinement. Consequently, it is apparent that the record cannot support municipal liability on this basis.

So, an indifferent deed goes unpunished. True, the jailers may not have deliberately decided to ignore a suicidal detainee in favor of making posters, but the record shows they were far from attentive. It wasn't until ICE showed up and interrupted the arts-and-crafts project that anyone specifically tasked with keeping an eye on detainees actually started to pay attention to the detainees. By that point, it was too late for Jose Luis Garza. And, as far as the courts can tell, this sucks for Garza but they don't have anything to offer his survivors.

Filed Under: 5th circuit, donna police department, esteban garza, ice, jose luis garza, nathan coronado, punisher, responsibility, ruben de leon, suicide

State Investigator Granted Immunity For Hours-Long Detention Of Doctor At Gunpoint During A Search For Medical Records

from the CAREFUL!-HE'S-GOT-A-FAX-MACHINE! dept

How far can a law enforcement officer go to ensure an administrative search -- one looking for records, rather than contraband -- is carried out without interference? Pretty damn far, it appears.

A case before the Fifth Circuit Court of Appeals alleges Fourth Amendment violations during a search for medical records. Dr. Ikechukwu Okorie was on the receiving end of a search due to the state licensing board's suspicion he was over-prescribing opioids. Okorie wasn't facing criminal charges. The state board of licensing had suspended his license while it investigated. Okorie sought recertification. The board agreed to meet with him but also sought an administrative warrant to search his medical office for evidence it needed to make a determination on his recertification.

Serving a warrant of this type -- one not linked to any criminal accusations -- takes a village, apparently. From the decision [PDF]:

According to his complaint and Rule 7 supplement to that pleading, a large team made up of the following executed the warrant: five Board investigators, a Mississippi Bureau of Narcotics agent, a Hattiesburg High Intensity Drug Trafficking Agent, and two federal DEA agents.

Lots of bored federales hanging around Hattiesburg, it seems. That initial show of force -- nine officers, most of them armed -- was followed by more shows of force. One officer in particular -- a board investigator -- was especially enthusiastic about ensuring Dr. Okorie didn't leave the premises or disrupt the search.

On entering the clinic, Board investigator Jonathan Dalton brandished his gun and pushed Okorie into his office. He then served Okorie with the warrant. After reviewing the warrant, Okorie attempted to leave his office to discuss it with his staff. Dalton stopped Okorie. He pushed Okorie down while saying, “if you don’t sit down I will put you down!” Okorie feared for his life. Dalton eventually allowed Okorie to instruct his staff to fax the warrant to his lawyers and print the requested patient records. But while Okorie did so, Dalton stood next to him with his gun drawn.

This is extremely odd behavior for a Board investigator, especially since Dr. Okorie had approached the board to ask for a recertification hearing. But that wasn't the extent of the investigator's abuse of his position.

Once Okorie briefly spoke with his staff, Dalton brought him back into his office, where Okorie was detained for the remainder of the search. After two hours had passed, Okorie asked to go to the bathroom and was told no. Okorie “plead[ed]” with Dalton, explaining that he would have to urinate himself if not allowed to use the restroom. At this point, Dalton, “with his gun drawn,” escorted Okorie to the bathroom. Dalton forced Okorie to leave the bathroom door open the entire time, even though a female investigator and other individuals were present. Dalton also instructed Okorie to keep his hands where Dalton could see them. Only when the agents were done executing the search, three to four hours after it began, was Okorie allowed to leave the clinic.

The lower court granted the investigator immunity, ruling that it was not clearly established government agents couldn't act like unreasonable assholes during an administrative search not related to a criminal investigation. Sure, it seems excessive, considering how many officers were present during the search (nine) and how cooperative Dr. Okorie was, but there's a dearth of caselaw related to the Fourth Amendment and administrative searches.

The Fifth Circuit Court notes that these cases are becoming more common -- suggesting the government behaves just as badly during non-criminal searches. This is the third case dealing with administrative searches it has seen in the last year. Unfortunately for everyone who isn't a law enforcement agent, the cases haven't been perfectly identical, so government employees keep escaping being held personally responsible for rights violations.

The last case the Fifth Circuit examined dealing with these issues resulted in a win for the accused officer and a blistering statement from Judge Don Willett on the farce that is qualified immunity.

The court is right about Dr. Zadeh’s rights: They were violated.

But owing to a legal deus ex machina—the “clearly established law” prong of qualified-immunity analysis—the violation eludes vindication. I write separately to register my disquiet over the kudzu-like creep of the modern immunity regime. Doctrinal reform is arduous, often-Sisyphean work. And the entrenched, judge-made doctrine of qualified immunity seems Kevlar-coated, making even tweak-level tinkering doubtful. But immunity ought not be immune from thoughtful reappraisal.

[...]

To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior—no matter how palpably unreasonable—as long as they were the first to behave badly.

There's no dissent attached to this one, even though it ultimately finds in favor of the government. The court says Okorie's claims are valid. There was nothing about this search that justified the show of force by Dalton.

Though law enforcement has understandable safety concerns when initially securing any scene, cf. Bailey v. United States, 568 U.S. 186, 195 (2013) (noting that Summers recognizes a need to “secure the premises” and for officers to take “command of the situation”), that would not seem to support hours-long detention of nonviolent individuals present at an administrative search. Yet Dalton allegedly drew his gun while accompanying Okorie and made him keep his hands visible at all times, even two hours into the detention. By this point, concerns about safety did not justify such intrusive measures. And with nine agents present in the office to execute the search, the need for such an intrusive detention was even lower.

[...]

Nothing indicates Okorie would have been uncooperative had he not been detained, and certainly nothing indicates that a drawn gun was necessary to keep Okorie restrained.

Even so, the lack of anything on point means Dalton can't be held accountable, seeing as he was the first to violate someone's rights in this particular manner.

As we have discussed, that at a minimum affects the balancing of Summers’s interests in analyzing the intrusiveness of a detention even if it does not outright eliminate the government’s right to detain without probable cause. But we have never considered the question, and only a few other courts have. The dearth of caselaw on this question might indicate the government rarely detains people while executing administrative searches, a fact that would be consistent with Okorie’s view of the Fourth Amendment. The consequence, though, is that Okorie is unable to point to caselaw clearly establishing the unlawfulness of this type of detention. As a result, qualified immunity defeats Okorie’s claim.

Here's the silver lining: if any armed officer decides to violate someone's rights this way in the future during an administrative search… well, they've been duly warned.

Going forward, an hours-long detention of a person during an administrative search of a medical clinic or similar establishment, during which a gun is drawn, will be unlawful absent heightened security concerns.

That's the bright line. It's very specific, dealing with only one type of search, and has requirements that could possibly be overlooked if the government can make the court believe the search presented "heightened security concerns." Careful with those "furtive movements," searchees.

Filed Under: 5th circuit, dea, ikechukwu okorie, immunity, jonathan dalton, licensing, qualified immunity, warrant

Fifth Circuit Affirms Springboards To Education's Loss Against Houston School In Trademark Case Appeal

from the read-a-lawbook dept

Way back in 2016, we discussed one company's quest to sue a bunch of librararies and schools for infringing on its program to promote reading to young schoolchildren. If that seems positively evil, then, yes, you indeed have a soul, so congratulations. If you're wondering how such a thing could have legal standing, it all centers around Springboards to Education having created the reading program with rewards that included children entering the "Millionaire Reading Club" for getting through a certain amount of books, the handing out of fake reward money, and other prizes. A bunch of libraries and schools independently setup their own reading clubs with similarly named rewards, thus leading to Springboards filing suit.

One of those school districts in Houston defended itself by pointing out that it was not engaged in commerce, meaning that its use was plainly Fair Use. The school won its case.

Springboards sued HISD for trademark infringement, counterfeiting, false designation of origin and dilution. After HISD and Springboards filed cross-motions for summary judgment, the district court granted HISD’s motion on the ground that Springboards could not show that HISD had used the mark in commerce. Springboards appealed.

Amazingly, Springboards appealed that decision, sending the case to the Fifth Circuit. Not surprisingly, the Fifth Circuit affirmed the ruling, pointing out that not only did it not have any opinion that would overrule the lower court's contention that the school district was not engaged in commerce, but also adding that there was no likelihood of confusion in the use, thus rendering this not trademark infringement.

Springboards to Education, Inc., sued Houston Independent School District under the Lanham Act for using its marks in the course of operating a summer-reading program. The district court disposed of Springboards’ claims on summary judgment because it concluded that a reasonable jury could not find that the allegedly infringing use of Springboards’ marks was commercial in nature. We AFFIRM, albeit on alternative grounds: as explained herein, a reasonable jury could not find that the allegedly infringing use of the marks created a likelihood of confusion.

The court goes on through a long, detailed explanation to Springboards as to what confusion actually is and who's confusion is actually relevant to a discussion over trademark infringement. Springboards had attempted, for instance, to suggest that parents and children themselves might be confused, thinking they were part of a Springboards program rather than one created by the school. The court points out that, even if that weren't the case, the children and their parents aren't a purchaser in any of this.

Springboards suggests HISD’s students and their parents might have been confused into thinking that HISD was using Springboards’ program instead of its own. Regardless of whether that might have been the case, HISD’s students and their parents are not the appropriate focus of the likelihood-of-confusion analysis. Although the ultimate recipients of HISD’s services and products, the students and their parents were not purchasers in any ordinary sense.3 They are better characterized as the “users” of the allegedly infringing products and services.

And, since HISD wasn't attempting to compete with Springboards' program elsewhere, no relevant confusion could be found.

One would hope this would be the end of this stupid saga and everyone could just get back to encouraging children to read books in their own specific ways. Whether Springboards will finally take the hint is the worst kind of cliffhanger.

Filed Under: 5th circuit, education, libraries, millionaire reading club, reading clubs, summer reading program, trademark
Companies: springboards to education

Fifth Circuit Says Apple Can't Be Held Liable For A Car Crash Caused By Someone Reading Text Messages

from the texting-while-litigating dept

Seeking to hold tech companies responsible for the actions of their customers and users is a national federal court tradition. Law firms like *checks notes* 1-800-LAW-FIRM and Excolo Law have made a cottage industry of this, scoring dismissal after dismissal of their lawsuits seeking to hold Facebook, Twitter, and YouTube responsible for the violent actions of terrorists around the world.

Seeking justice -- or at least compensation -- for wrongs committed against you and the ones you love is a natural instinct. Issues only develop when you take the fight to a third party only tenuously connected to the wrong that was committed. A lawsuit against Apple has been dismissed for the second time. The Fifth Circuit Court of Appeals is no more impressed with the arguments that failed to make an impact at the lower level.

In this case, the appellants sued Apple for a car crash caused by a driver reading text messages on her iPhone 5. Maybe the driver turned out to be judgment proof -- especially after being convicted on two counts of criminally negligent homicide. The appellants -- who lost two family members in the auto accident -- feel Apple is liable because it did not implement a lock-out process it had patented in 2008.

The appellants claim Apple recognized the texting-while-driving problem but failed to do anything about it. The Appeals Court says [PDF] a Pavlovian response to incoming texts cannot be Apple's fault, not even at the state level.

This case asks us to decide whether, under Texas law, a driver’s neurobiological response to a smartphone notification can be a cause in fact of a car crash. Because answering in the affirmative would entail an impermissible innovation or extension of state law, we answer in the negative.

The court goes on to point out that the cases cited by the appellants dealing with vicarious liability all have one thing in common: reasonable expectations.

The Texas cases on which Appellants rely make clear that acceptance of their causation theory would work a substantial innovation in Texas law. These cases present garden-variety theories of causation that ordinary minds would readily accept, so they have little to say about the present case. One is Dover Corp. v. Perez, which concerned a heater pumping carbon monoxide into an apartment due to its negligent manufacture and installation... No useful analogy exists between a smartphone’s effect on users and a heater generating carbon monoxide. Others are Dew v. Crown Derrick Erectors, Inc., 208 S.W.3d 448, 449–50 (Tex. 2006), about a worker who fell through an opening in an oil derrick platform left unprotected, and Rio Grande Regional Hospital, Inc. v. Villareal, 329 S.W.3d 594, 603–04 (Tex. App.––Corpus Christi 2010), about a nurse who left a psychiatric patient unattended with razor blades. No worthwhile analogies suggest themselves here either. Appellants also cite a case about Ford’s decision not to install a seatbelt for the middle seat in the Ford Bronco’s rear row. Ford Motor Co. v. Cammack, 999 S.W.2d 1, 8–9 (Tex. App.––Houston [14th Dist.] 1998). An analogy may perhaps be drawn between a distracting phone and a car seat without a seatbelt, but it does not get us very far. A user of the former can make it safe for driving by silencing or switching it off; no such simple fix exists for the latter.

The court's condensed take appears at the bottom of the footnote appended to this paragraph.

None of the causes alleged in these cases strains the sensibilities of a reasonable person, nor does any resemble the cause advanced by Appellants here.

The court also notes that Texas laws governing distracted driving place the onus on the driver -- not the cellphone provider nor the vehicle manufacturer, no matter what safety features may have been bypassed or never implemented.

Under state or federal precedent, the outcome is the same: the cause of the crash was the driver, not the cellphone manufacturer.

No Texas case has addressed whether a smartphone manufacturer should be liable for a user’s torts because the neurobiological response induced by the phone is a substantial factor in her tortious acts. To our knowledge, informed by submissions to us, no court in the country has yet held that, and numerous courts have declined to do so. As such, no authority indicates to us that Texas courts, contemplating reasonable persons and ordinary minds, would recognize a person’s induced responses to her phone as a substantial factor in her tortious acts and therefore hold the phone’s manufacturer responsible.

As frustrating as it can be for those who've experienced a tragedy, the person who has wronged you is responsible for their actions -- not their cellphone provider or their social media platform of choice.

Filed Under: 5th circuit, ashley kubiak, iphone, liability, texas, texting
Companies: apple

Appeals Court Says Law Criminalizing Threats To Sue Or Complain About Police Officers Is Unconstitutional

from the real-concern-is-these-gov't-employees-thought-it-was-ok-to-do-this dept

A few months ago, we wrote about (YET ANOTHER) terrible law Louisiana has on the books. Like its other terrible laws, this one is abused by law enforcement. The law itself -- which forbids the "intimidation" of public officials -- has already been ruled unconstitutional by a federal judge.

This law is wielded by officers and prosecutors to ring people up for "intimidating" cops by doing things like threatening to sue or file complaints. The wording lends itself to this. It criminalizes anything that might "influence" a public official's "conduct." No doubt threats of lawsuits or complaints have some effect on officers and how they behave and react. The most noticeable effect isn't on the public officials. It's the addition of a charge specifically related to what a citizen says to a law enforcement officer if they're unhappy with the way they're being treated.

Travis Seals was the recipient of one of these bogus charges as the result of him informing an officer he was going to file "lawful complaints" during his arrest for unknown charges. (The opinion only says "conduct not specifically reflected in the record.") He verbally objected to the arrest, which apparently led to the application of pepper spray and Seals' announcement of the pending filing of complaints.

The lower court said the law was unconstitutional. Even though Seals was never officially charged by the DA, the DA still chose to fight for the bad law in court. And again, it's the state appealing the lower court's ruling. The state tried to get the case tossed for lack of standing, saying it had promised not to use that law against Seals in the future. The court disagrees, using a couple of footnotes (p. 5) to explain why this promise isn't really worth the PDF it's printed on before ruling on the law itself. It also points out the state has brought this charge in circumstances like these against 150 people, so it's not as though it's restraining itself for abusing a bad, broadly-written law.

And it is incredibly broad, as the Fifth Circuit Appeals Court points out in its opinion [PDF]. (h/t Volokh Conspiracy)

The statute criminalizes “public intimidation,” defined as “the use of violence force, or threats upon [a specified list of persons, including any public officer or public employee] with the intent to influence his conduct in relation to his position, employment, or duty.” (Emphasis added.) On its face, the statute is extremely broad. The definition of “threat” generally encompasses any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” That definition easily covers threats to call your lawyer if the police unlawfully search your house or to complain to a DMV manager if your paperwork is processed wrongly.

The appeals court notes that, even if it accepts the conclusion of state court rulings, which create a requirement that such "threats" or "intimidation" produce a "corrupting effect" (bribery is one example), that still doesn't make the law Constitutional. (Also: state law rulings aren't considered precedent by federal appeals courts.)

Accordingly, we assume, but only for purposes of this appeal, that Section 14:122 requires a corrupt intent, defined as the intent to obtain something that the speaker is not entitled to as a matter of right.

Yet we can narrow Section 14:122 no further. According to the state, we should construe the statute to apply only to true threats, i.e. “a serious expression of an intent to commit an act of unlawful violence” toward specific persons. There are several reasons why we cannot do so. First, the definition of “threat” is broader than true threats: any “statement of an intention to inflict pain, injury, damage, or other hostile action on someone in retribution for something done or not done.” Second, the reporter’s comments to Section 14:122 provide that the statute “should include threats of harm or injury to the character of the person threatened as well as actual or threatened physical violence.” Thus, the section is not “readily susceptible” to such a limiting construction.

The third reason is the biggest -- and it's supplied by Louisiana's government itself.

As plaintiffs note, the Louisiana Court of Appeals has upheld the conviction of a defendant who violated Section 14:122 by threatening “to sue” an officer and “get [his] job” if the officer arrested him. See State v. Mouton, 129 So. 3d 49, 54, 59 (La. App. 3d Cir. 2013). Plainly, such a threat suggests no violence—indeed, the threat appears to be a plan to take perfectly lawful actions. Accordingly, we cannot construe Section 14:122 to apply only to true threats of violence.

The law is so broadly written it criminalizes protected speech.

[T]he statute reaches both true threats—such as “don’t arrest me or I’ll hit you”—and threats to take wholly lawful actions—such as “don’t arrest me or I’ll sue you.” In both those examples, the speaker may be legally subject to arrest and is trying to influence a police officer in the course of his duties.

The court points out it's not impossible to craft a law targeting speech against public officials. Content-based restrictions can be Constitutional, but they have to be extremely narrowly-crafted. This law isn't, and its attendant abuse shows just how broadly written it is. When even stating you're going to run for office against a government official if they pass legislation you don't like (an example used in the ruling) can be construed as criminal under the law, there's zero chance it can survive a Constitutional challenge.

Section 14:122 could encompass an innocuous threat to complain to a DMV manager for slow service or a serious threat to organize lawsuits and demonstrations unless the police lower their weapons. And each kind of threat is constitutionally protected…. Section 14:122 undermines that freedom and thus is unconstitutional.

The Appeals Court hammers this point home twice in the same ruling.

A fortiori, Section 14:122 is not a time, place, and manner restriction. And not only does it encompass unprotected content, it reaches far beyond those constitutional limitations to target threats to complain to a school principal if one gets a bad grade, threats to run against an incumbent unless he votes your way on a bill, or threats to call the media if the police point a gun at you. Those kinds of threats are part of the core First Amendment rights “by which we distinguish [our] free nation from a police state.” Thus, insofar as it criminalizes “threats,” Section 14:122 is unconstitutionally overbroad.

The law may have to be rewritten. But for right now it at least can't be used the way it was in this case or several others involving Louisiana law enforcement.

Filed Under: 5th circuit, complaints, free speech, louisiana, police, travis seals

Fifth Circuit Says No, You Fucking May Not Strip Search A Classful Of Female Students To Find $50

from the because-of-course-you-can't-the-hell-were-you-thinking dept

The Fifth Circuit Appeals Court convened to write an opinion [PDF] the judges shouldn't have had to write. But then, of course, they had to because the lower court screwed everything up. The first paragraph sums up the issue -- and the appeals court's decision -- succinctly and devastatingly. (h/t Raffi Melkonian)

During a sixth-grade choir class, an assistant principal allegedly ordered a mass, suspicionless strip search of the underwear of twenty-two preteen girls. All agree the search violated the girls’ constitutional rights under Texas and federal law. Even so, the district court dismissed the girls’ lawsuit against the school district for failure to state a claim. We reverse.

The school admitted it violated the students' rights. It admitted it performed a search without justification or guiding policies. It all but started cutting settlement checks and yet the lower court said no viable claim was made by the plaintiffs.

The background: in an attempt to locate $50 that went missing during a choir class, the entire class was searched. Given the nature of the search, this quickly changed the definition of "class" from a "a number of students studying the same course" to "a number of students suing the school." This maybe wouldn't have gone as far as it did, but for the invaluable assistance of the school's police officer.

When no money turned up, the school police officer “suggested that girls like to hide things in their bras and panties.”

I sincerely hope this person is now chronically underemployed. Why escalate things needlessly? No one was looking for weapons or even illegal drugs. It was cash -- something easy to lose. That $50 has gone missing does not necessarily mean it was stolen. That it may have been stolen does not necessarily mean the female class members would have stashed it in their undergarments.

Without seeking permission from the students or informing their parents, the vice principal had the school nurse perform a strip search of all the students.

Higgins took all twenty-two girls in the choir class to the female school nurse, who strip searched them, taking them one at a time into a bathroom, where she “check[ed] around the waistband of [their] panties,” loosened their bras, and checked “under their shirts.” The girls “were made to lift their shirts so they were exposed from the shoulder to the waist.”

Do the ends justify the means?

No money was found.

The district's policy for searches is a mess. An unconstitutional mess. As the court points out, it gives no guidance to administrators on how to reach its self-generated standard of "reasonable cause" before performing a search. However, it does tell administrators searches by school personnel should be as non-intrusive as possible and only when there's a "reasonable" belief contraband might be found.

The only discipline handed out for this mass violation of rights was a memo chastising the Vice Principal for performing a search to find something not actually considered to be "contraband." But the court points out that this memo misses the whole point of Constitutional protections and the school's obligation to leave those (and their students) unmolested.

Regardless, the supposed lack of “contraband” appears to have been the principal’s only concern; the memo never criticized the search for invading the underwear of twenty-two preteen girls, or for doing so without particularized suspicion.

In fact, the principal's memo seemed to suggest strip searching students was acceptable as long as the principal was given a heads up.

The memo further made clear that, at least in the principal’s mind, such strip searches of students are not per se improper under school district policy. Rather than forbidding all strip searches going forward, the memo requested: “In the future, if you feel a student must have a search requiring a strip search, please notify me before proceeding.”

Addressing the lower court's fuck ups, the Appeals Court first points out the question of Constitutionality has been answered firmly, with some of that coming from the defendant school's own admissions.

[T]his clearly established law means that Higgins violated the constitutional rights of the twenty-two girls unless Higgins reasonably suspected that the missing $50 cash (1) would be found on that particular girl’s person and either (2) would be found specifically in that girl’s underwear or (3) would pose a dangerous threat to students. For what are perhaps obvious reasons, the parties do not dispute that the alleged search failed all three conditions. It was clearly unconstitutional.

The school tried to claim the plaintiffs had nothing to support their claims. It tried to portray this as allegations about an unconstitutional policy. But the Appeals Court notes the plaintiffs are actually alleging the school had done nothing at all to provide search guidance to its administrators. This changes the judicial math a bit. [Emphasis in the original.]

To be clear, the argument is not that the school district’s written search policies are facially unconstitutional or that they caused the alleged constitutional violation by themselves. Rather, the “official municipal policy” on which Plaintiffs attempt to hang Monell liability is the school district’s alleged policy of providing no training whatsoever regarding its employees’ legal duties not to conduct unreasonable searches. In other words, as currently presented, this is a “failure to train” case.

This allows the plaintiffs to move forward with their allegations, overturning the lower court's dismissal. The Appeals Court notes this reversal isn't meant to suggest the plaintiffs have enough evidence to prevail on this claim -- only that they should not have seen their case dismissed during the first round of pleadings by the lower court.

But what seems obvious to everyone was somehow unclear to the vice principal who ordered the searches. The court notes there really can only be one entity to blame in this matter: the school itself for failing to give officials proper training on students' constitutional rights. Just having a policy several steps removed from the actual limitations demanded by the Fourth Amendment isn't enough. The courts don't expect police officers to know the nuances of every Fourth Amendment decision governing the searches of full-grown adults so it sure as hell isn't going to expect a school administrator will have this all nailed down without outside instruction.

Filed Under: 4th amendment, 5th circuit, 6th grade, strip search, students

Court Has No Problem With Multiple Invasive Probings In Search Of Drugs That Didn't Exist

from the 'Your-Bodies,-Ourselves,'-by-CBP-and-El-Paso-County-healthcare-professio dept

If a government employee suspects you might be carrying drugs, be prepared to engage in a nonconsensual, highly-intimate relationship with the feds and their helpers. A New Mexico resident suspected of carrying drugs was subjected to multiple anal probings and enemas before law enforcement finally decided he wasn't actually carrying any drugs on him (or in him). An 18-year-old Arizona woman was subjected to vaginal and anal probing when attempting to return from a short trip to Nogales, Mexico. Again, no drugs were found but the helpful medical "professional" decided to go from CBP accusation to painful probing, bypassing less intrusive options (x-rays, etc.) in his earnest desire to save America from illicit substances.

Another incident with lots of probing and violations but zero drugs has landed in the Fifth Circuit Appeals Court. Gloria Bustillos (an American citizen) was attempting to return to El Paso, Texas after a visit to Juarez, Mexico when CBP agents decided she must be trafficking drugs. The indignities began immediately. From the decision [PDF]:

First, two female agents conducted a pat down. The agents found no drugs. The agents then held Bustillos for a K-9 search. The K-9 failed to alert to the presence of drugs. Two agents then took Bustillos to a restroom, where they ordered her to pull down her pants and underwear and bend over slightly. The agents conducted a visual inspection of Bustillos’ vaginal and anal area. Again, the agents found no drugs.

Free to go? Not a chance.

Despite no evidence of drugs, the agents placed tape on Bustillos’ legs and abdomen, handcuffed her, and transported her to the University Medical Center (the “Hospital”) in El Paso.

At the Hospital, Doctors Michael Parsa and Daniel Solomin (the “Doctors”) ordered a series of x-rays to search for drugs. The x-rays revealed no drugs. The Doctors then performed a pelvic exam. Again, the pelvic exam evidenced no drugs. Solomin then conducted a rectal exam. Yet again, Solomin found no evidence of drugs. As part of these searches, the Doctors, and Nurses Lynette Telles and Frank Mendez (the “Nurses”), allegedly “brutally” probed Bustillos’ cavities in the presence of hospital personnel. Bustillos did not consent to any of the above searches.

Having been violated multiple times in an attempt to confirm the CBP's verifiably-wrong suspicions, Bustillos sued. And the court has nothing for her. The district court upheld immunity for the medical personnel who performed the series of invasive searches and the Fifth Circuit Appeals Court affirms this decision.

Bustillos argues that the Doctors and Nurses violated her Fourth Amendment right to be free from unreasonable searches and seizures by detaining her in order to conduct x-ray, pelvic, and rectal exams without reasonable suspicion of criminal activity. The district court held those allegations cannot overcome the Doctors’ and Nurses’ qualified immunity because the right at issue was not clearly-established. We agree and affirm on that ground.

This part sounds hopeful…

Nonetheless, we take this opportunity to clarify the constitutional duties of medical staff when they cooperate with law enforcement searches.

But it isn't. The appeals court holds that medical personnel are in no position to question the orders of government agents. CBP officers can make almost any statement and suggest courses of action and medical personnel should just shut up and do what they're told, even if less-invasive procedures suggest more-invasive procedures aren't any more likely to produce supposedly-hidden drugs. (Emphasis added.)

Accordingly, Bustillos’ allegations could potentially assert a constitutional violation. The complaint is, however, ambiguous on critical factual allegations. For instance, it is unclear who Bustillos alleges actually ordered the various searches. Further, it is unclear what the CBP officers told medical staff regarding their basis for requesting the various searches. These facts are important because the officers’ articulation of probable cause for a minimally invasive search, such as the x-ray, would not necessarily shield the Doctors and Nurses from liability for the more intrusive searches, such as the rectal probe, if the officers did not request that search or represent that sufficient suspicion justified it. However, if the officers requested all of the medical examinations, the Doctors and Nurses would have a strong argument that they had no duty to second-guess the Fourth Amendment basis for those searches.

But the appeals court stops there. It could have examined the sufficiency of the allegations. The court says the underlying facts (apparently not on the record) "are important" as they would what was done under the command of CBP officers and how many invasive searches were performed without direct instruction. Certainly medical personnel aren't well-positioned to questions law enforcement assertions -- and it may be ultimately correct that they should not be held liable for invasive tests ordered by the government. But the appeals court just discards the discussion without sending it back to the lower court to further assess the underlying facts. The appeals court simply says the right to be free of invasive medical searches performed possibly at the government's behest was "not clearly established." The "clarification" the court promised earlier in the decision materializes as a muddy paragraph that clarifies nothing because the court is unwilling to clarify it further than "maybe medical personnel shouldn't question law enforcement."

This failure of justice is made even more apparent when the court moves on to discuss Bustillos' challenge of the lower court's denial of discovery.

Bustillos claims that the district court abused its discretion by failing to grant her requests to conduct discovery prior to ruling on the motions to dismiss. We disagree.

Both motions for protective orders noted that the Doctors had asserted qualified immunity. “One of the most salient benefits of qualified immunity is protection from pretrial discovery . . . .” Backe v. LeBlanc, 691 F.3d 645, 648 (5th Cir. 2012). Thus, “[b]efore allowing discovery in a matter where qualified immunity is alleged, the district court must first find ‘that the plaintiff’s pleadings assert facts which, if true, would overcome’ a qualified immunity defense.” Williams-Boldware v. Denton Cty., 741 F.3d 635, 643 (5th Cir. 2014) (quoting Backe, 691 F.3d at 648).

Because Bustillos’ claims could not overcome the clearly-established prong of the qualified immunity defense, the district court did not err by declining to grant Bustillos’ discovery requests.

So, the court says plaintiffs in her situation are fucked. They can't sufficiently allege violated rights without more factual development, but the qualified immunity defense prevents discovery from even occurring. Plaintiffs apparently have to enter the court with all the facts on hand at the time of filing. Most government agencies are unwilling to hand over pertinent documents to victims of their malfeasance at any point, forcing plaintiffs to engage in an FOIA lawsuit (and secure a victory) before even attempting to file a civil rights lawsuit. The clock starts ticking on civil rights lawsuits the moment a violation occurs, making it all but impossible to win a public records suit (and secure helpful facts) prior to bringing allegations of rights violations to the court. Qualified immunity is an insanely high bar to meet, and it's only made worse when courts at the appellate level refuse to clarify constitutional duties of medical professionals beyond "if law enforcement is involved in any way, medical professionals can do whatever they want without worrying about being held liable for their actions."

Filed Under: 4th amendment, 5th circuit, cbp, drug searches, drugs, gloria butillos, police

Appeals Court Has No Problem With Cops Using E911 Services To Perform Warrantless, Real-Time Tracking

from the what-part-of-'stored'-do-you-fail-to-comprehend? dept

The Fifth Circuit Appeals Court says it's fine if the government uses mandated emergency services to perform real-time GPS tracking. It doesn't go so far as to affirm the constitutionality of the actions, but it achieves the same ends by voting down the appellant's request for a rehearing.

What we can glean about the issue at stake comes from the eight-page dissent [PDF] written by judges James L. Dennis and James E. Graves, two of the seven judges who voted for a rehearing. In this case, the government used the defendant's cellphone provider to engage in real-time tracking. No warrant was obtained despite the government's shoulder-surfing of incoming GPS location data.

Defendant William Wallace contends that the Government violated the Fourth Amendment by ordering his service provider to activate his phone’s “Enhanced 911” capability and to relay his GPS coordinates in real time, including while he was in his home. The panel opinion concludes that, even if the Government’s real-time tracking of Wallace’s GPS coordinates was an unconstitutional search, Wallace cannot benefit from the exclusionary rule suppression of the fruits of that search because law-enforcement officials could have reasonably relied on open-ended language in 18 U.S.C. § 2703(c), a provision of the Stored Communications Act (SCA), as authorizing their actions.

Those are the facts of the case, but as the dissenting judges point out, the SCA clearly did not anticipate this use of the law, much less explicitly approve this GPS warrant end-around utilized by law enforcement. The government relied on good faith exception arguments made in two cases -- Leon and Krull. The latter holds that officers may rely on clear statutory authorization even if the statute is later proven to be unconstitutional. (In the Krull case, the statute was struck down a day after the disputed search took place.) This seems about right as courts hardly expect officers to know the laws they're supposed to enforce, much less the ones they're supposed to follow.

But that doesn't hold here. The dissent makes it explicit: the SCA provides no basis for warrantless commandeering of a phone's GPS system to track suspects. This isn't a passive collection of existing records. This turns a phone into a tracking device at the behest of law enforcement, even when the phone's owner may have taken measures to limit the collection of GPS data. There's nothing in the SCA that says any of this is constitutional.

Unlike in Krull, here there is no legislative judgment or dialogue between the courts and the legislature as to the constitutionality of the realtime GPS surveillance at issue. Congress passed the SCA over thirty years ago. At that time there was no E911 requirement, see 61 FED. REG. 40,374, and GPS was still experimental military technology that would not begin to be in widespread civilian use until over a decade later…

Furthermore, there's a Supreme Court decision to be considered -- one that strongly hinted real-time GPS tracking requires warrants (even if the Justices didn't actually go so far as to draw a bright line).

Moreover, as has been expressed by five members of the current Supreme Court and by members of this court, there is grave doubt as to the constitutionality of the kind of warrantless, real-time GPS tracking at issue in this case. See, e.g., United States v. Jones, 565 U.S. 400, 415–18 (2012) (Sotomayor, J. concurring) [...] Thus, both the nature of the statute and the nature of the alleged constitutional violation strongly suggest that Krull does not apply here.

The dissent then returns to the SCA. The government argues the SCA should be read to include real-time GPS tracking as something covered by the "or other information" phrase in the law. Since it's not communications, the government rationalizes, there should be no warrant requirement. The dissent points out the flaw in the government's reasoning by pointing to nothing more than the name of the law invoked to perform the warrantless tracking.

This holding ignores plain language in the SCA suggesting that real-time collection of GPS tracking information is not authorized by this statute. Section 2703(c) is part of the “Stored Communications Act.” (emphasis added). The pertinent section is entitled “Records concerning electronic communication service or remote computing service.” § 2703(c) (emphasis added). GPS coordinates that have not yet been created and would not be created absent the Government’s intervention cannot be called “records” or “stored” communications under any commonsense understanding of those terms.

This does nothing for the appellant or anyone who resides in the district, unfortunately. Law enforcement can still turn phones into tracking devices without warrants, barring any state legislation that provides more privacy protections than this district's interpretation of the Fourth Amendment. With its refusal to rehear this case, the Fifth Circuit has granted the government the luxury of interpreting "or other records" to include compelled real-time GPS tracking.

Filed Under: 4th amendment, 5th circuit, e911, police, privacy, real time tracking, surveillance, warrants

Appeals Court Reminds Everyone: Patent Infringement Is Good For Competition

from the so-why-isn't-it-encouraged-more? dept

A legal dispute that goes back in some form or another to at least 2001 has resulted in the 5th Circuit Appeals court thankfully reminding people that patent infringement is actually good for competition. To say that the details and background of this case are confusing and convoluted would be... quite an understatement. If you want to read the background in the full ruling, go ahead, but I'd recommend bringing along a white board, a compass and a large Thermos of coffee. Let's just say that two companies that make different versions of retractable syringes, RTI and BD, have been less than happy with each other for many years, and there have been some lawsuits covering a variety of different theories for why RTI doesn't want BD selling safety syringes (or, if not stopping the company from doing that, compelling it to fork over lots of money to RTI). There have been patent claims, antitrust claims, unfair competition, false advertising and some more. It's... convoluted. While the court's background explanation is convoluted as anything, where things came down recently was that RTI argued that BD's patent infringement (which had already been ruled on by the court earlier in this neverending saga) was also a form of an antitrust violation. Even this part is confusing, because RTI has a few different reasons for why it argues BD is violating antitrust law, with only one of them being its infringement of RTI patents.

Of course, if you're playing along with the home game, you should already be scratching your head. After all, patents themselves are monopolies. So, if anything, you'd think that any antitrust argument would be focused on the patent holder rather than the patent infringer. But, here, RTI is arguing that the patent infringement itself is a form of an antitrust violation, as it's part of BD's effort to foreclose competition. But... again, that makes no sense, and the appeals court rightly calls this out and notes that patent infringement doesn't block competition -- it actually increases competition:

Patent laws are designed to secure for patent holders a time-limited exclusive right to exploit their discoveries, but this is “not the kind of public purpose protected by the antitrust laws,” which seek to “protect the free flow of interstate commerce.”... That a patentee may anticompetitively extend its market power to products other than those covered by a patent, and thus violate the antitrust laws, is well settled... RTI, however, cites no case holding the converse: that antitrust liability may be founded in whole or in part upon patent infringement. By definition, patent infringement invades the patentee’s monopoly rights, causes competing products to enter the market, and thereby increases competition. RTI, in fact, persuaded another jury of exactly this procompetitive result when it proved patent infringement by BD’s 1mL Integra safety syringe. The judgment against BD, which was then forced to remove the competing product from the market, diminished competition but enforced RTI’s patent rights.

Of course, this doesn't mean that patent infringement is legal -- it's not. But at the very least, the court is shutting down the positively nutty argument that patent infringement might also be an antitrust issue, even though it increases competition rather than decreases it.

Filed Under: 5th circuit, antitrust, infringement, patents, safety syringes