Appeals Court Declares Injunction Against Ohio’s Blocking Of Immunity-Stripping Bill Moot Because It Dicked Around Long Enough To Make It Moot

Legal Issues

from the doing-the-overlord's-work dept

Those of you who still believe the nation’s courts are capable of handling the constitutionally-guaranteed redress of grievances, prepare to be disabused of those notions. While the courts may occasionally care about rights, they’re far more willing to protect the government status quo than allow mere citizens to upset the status quo apple cart.

We’ve seen this in the Fifth Circuit, where judges originally agreed (very strongly) that arresting a journalist for publishing information obtained from a law enforcement officer violated that person’s First Amendment. The solid judicial smackdown of the government’s overreach was followed shortly thereafter by a petition by (unnamed) Fifth Circuit judges for a rehearing. Following that rehearing, the Fifth went entirely in the other direction, insisting that what was — only months earlier — determined to be a flagrant violation of rights was now entirely constitutional.

That’s what has now happened in the Sixth Circuit Court of Appeals. An Ohio ballot measure that would have stripped local government officials of absolute immunity was denied no less than eight times by Ohio Attorney General David Yost. The ballot measure got the signatures it needed to be added to ballots, but AG Yost rejected it repeatedly. Yost moved the goalposts with each filing, refusing to provide the applicants with any guidance as to how they could bring this ballot measure into compliance with constantly shifting guidelines.

Those seeking to put the measure on the ballot filed a federal lawsuit on March 27, 2024. The lower court — recognizing time was of the essence — issued its decision less than two months later. While it did deny the injunction request, it did rule the plaintiffs could move forward with discovery. Facing this latent threat to his ability to act vindictively when presented with ballot measures he didn’t personally like, AG David Yost asked the Sixth Circuit to take a look at the case before he was forced to turn over information to the plaintiffs.

The Sixth Circuit, recognizing time was of the essence, issued its own ruling less than two weeks after AG Yost’s appeal. Unfortunately for the Attorney General, the Sixth Circuit not only found in favor of the plaintiffs, but also issued a preliminary injunction barring the AG from continuing to interfere with this ballot measure.

At that point (May 29, 2024), there still may have been enough time for the plaintiffs to gather the 400,000 signatures needed to place this ballot measure on the November 2024 election ballot.

For reasons that are now immediately apparent, the worst judges in the Sixth Circuit decided this question needed to be heard by the full court. This request for an en banc hearing was granted and the Sixth Circuit issued an opinion nullifying its original decision, which had firmly found in favor of the plaintiffs.

Until this point, everything had been expedited. The original lawsuit was reviewed and received a ruling within 60 days. The interlocutory appeal by the state AG was handled within a month of the notice of appeal. The agreement to hear the case en banc was issued within two weeks of the first notice of internal Sixth Circuit disagreement.

And then… nothing happened for another five months. The en banc hearing didn’t happen until two weeks before the November 2024 elections. (The case was heard on October 30. The elections occurred on November 5.) The opinion wasn’t issued until 16 days after the national election had been called.

It is what it looks like: the en banc request was made by judges upset that regular people might be able to negate state-level immunity protections via ballot measure. So, the request for rehearing was made immediately, and then the court dragged its feet for nearly another six months. While the re-hearing occurred before the election (by two weeks), it wouldn’t have mattered. Even if the court had sided with the plaintiffs, it would only have given those pushing the ballot measure about 14 days to secure the 400,000 signatures needed to ensure placement on the ballot during the November elections.

But it pushed off the decision until two weeks after the election, presumably for the sole reason of declaring the lawsuit moot… even if its mootness was entirely dependent on the bullshittery of the judges asking for a full rehearing and the minority judges’ cowardly unwillingness to handle this with the same alacrity they had used to respond to the Ohio AG’s appeal. Instead of justice, we just get several judges screwing around long enough the chance to put this issue on the November 2024 ballot was nonexistent.

Now that there was no danger of accidentally allowing citizens to pursue lawsuits against Ohio government employees without being stymied by ridiculous declarations of immunity, the Sixth Circuit (en toto) is finally willing to issue its decision [PDF]. And that decision says: hey, we fiddled while metaphorical Rome burned but since Rome is burnt, there’s nothing compelling us to find in favor of the people who wanted to see this court act before Rome was burnt to the ground.

Now that the November 2024 election is over, her request for relief, like many a 2024 election yard sign, has become stale. Ordering Yost to certify that summary now will not give Brown the relief she seeks because the window to appear on the 2024 ballot has closed. Without power to rewind the clock, we cannot give Brown the relief she sought in her preliminary injunction. Given the “nature of the relief sought,” the matter is “moot because the . . . election is over.” Brockington v. Rhodes, 396 U.S. 41, 43 (1969) (per curiam).

Now, I realize this site draws an audience that is a cross-section of the general public and we’re not expecting people to have completed a year of two of law school before reporting posts like this one. But there’s only one legal term of art that can be used to describe this: pure cuntishness.

The judges who demanded the rehearing made sure the case couldn’t be decided in time to provide relief to the ballot measure proponents who had spent the previous several months being screwed with by a state official who never had any intention of ever approving this ballot measure. And now that the (new) majority had managed to make this a non-issue, it now has the gall to proclaim it is powerless to “rewind the clock.” And with that statement, it pretends the en banc hearing supporters did not deliberately allow the clock to run solely for the reason of denying relief to the people trying to curtail government immunity.

The dissenting opinion nails it, though. Even if the majority wants to pretend it didn’t engage in a performative re-hearing (at the last minute! five months[!] after the case was first handled and, as the dissent points out, only six days before the election), it doesn’t get to pretend issuing an injunction is no longer an option. After all, elections and ballot measures are an ongoing process. Denying relief now just means this lawsuit will be showing up in court less than two years from now, when the next state ballot measures are being considered. Even if it’s “moot” in terms of an election date that has come and gone, an injunction is needed to ensure Ohio AG Yost doesn’t just pull the same shit the next time around.

Yost has rejected Plaintiffs’ summaries time and time again, for reasons that appear increasingly specious. Meanwhile, Plaintiffs have been unable even to begin circulating their petition. Because Plaintiffs’ motion for a preliminary injunction is not moot and because they are likely to succeed on the merits of that motion, I would grant relief.

Unfortunately, it’s the majority that has the final say. Everything goes back to square one. The plaintiffs can restart the ballot measure petition process, assured that the same amount of AG bullshit will greet their efforts this time around, only with another layer of vindictiveness added to it. The AG has been told he can fuck these petitioners over repeatedly without fearing any reprisal from federal courts. And so he undoubtedly will, especially when absolute and qualified immunity are on the line. The Sixth Circuit has deliberately abdicated its responsibility to the public by running the clock for the sole purpose of disposing of a lawsuit attempting to salvage a ballot measure only government employees would object to. This is circling the wagons, but at the appellate level. And the moment enough judges recognized the latent threat to government autonomy the proposed ballot measure presented, they ran out the clock to prevent citizens from empowering themselves and/or seeking actual redress through the court system.

Filed Under: 14th amendment, 1st amendment, 6th circuit, absolute immunity, ballot measure, David yost, qualified immunity

Sixth Circuit Tells Ohio AG To Stop Blocking Ballot Initiative Calling For End Of Qualified Immunity

Legal Issues

from the got-to-let-the-governed-have-their-say dept

Plenty of people don’t care for all the forms of immunity the government has granted itself. And they don’t care for qualified immunity, which is a thing the Supreme Court cooked up on its own.

These multiple forms of immunity have tended to become get-out-of-lawsuit-free cards for government employees, rather than the general encouragement to do their level best in situations involving discretion. Discretion has been abandoned because there’s been more than enough immunity to go around. Qualified immunity may seem less absolute than absolute immunity, but the Supreme Court that created the doctrine has done all it can over the past few decades to make it nearly as absolute as absolute immunity.

The public wants things to change. That explains why Ohio residents are trying to get a ballot measure added that would eliminate multiple forms of immunity for government officials. Rather than respect the wishes of the people, the Ohio Attorney General’s office has repeatedly refused to certify the proposed amendment, thus preventing the creators of the initiative from collecting the signatures needed to get it placed on the ballot.

And not just once. The AG has shot it down every time it has come up. (h/t Short Circuit)

From the Sixth Circuit Appeals Court decision [PDF]:

Pursuant to Ohio law, Plaintiffs drafted their amendment and summary, collected their one thousand qualified supporting signatures, and filed it with the Ohio Attorney General, David Yost. On at least six occasions, Yost declined to certify Plaintiffs’ summary.

It’s easy to see why the AG wouldn’t like this measure. It would remove the absolute immunity he and prosecutors in his office can currently avail themselves of when sued. And it would remove the qualified immunity law enforcement officers and officials use far more frequently. The AG is the state’s top-level prosecutor. As such, it’s obviously in his best interest to protect cops because being AG is often the equivalent of being the state’s top cop.

The lawsuit was filed in state court but moved to federal court when the state court declined to provide an expedited review of the group’s injunction request. The federal court rejected the injunction request, leading to this appeal.

Now, with the case in the Sixth Circuit Appeals Court, the plaintiffs are hoping at least one federal court might find it in its judicial heart to recognize their (reasonable) First and Fourteenth Amendment claims against the clearly biased and repeated rejections of this specific ballot initiative by the AG David Yost.

The plaintiffs followed all the rules for ballot measures. Since they’ve held up their end of the bargain, the appeals court takes a look at the reasons stated for the AG’s multiple rejections. In every case, the AG’s office used the same excuse, despite the measure and summary being revised each time in hopes of dodging yet another vaguely worded rejection: “unable to certify the submitted summary as a fair and truthful representation of the proposed amendment.”

The appeals court first corrects the lower court’s most significant error: the plaintiffs do have standing to pursue this suit and their “injury” is clearly stated: they are unable to advance a ballot measure because the AG has apparently decided it will never approve this specific sort of proposal. In doing so, the AG’s office is violating the plaintiffs’ rights.

It is undisputed that Plaintiffs suffer an “injury in fact.” Plaintiffs allege that their First and Fourteenth Amendment right to political speech is burdened by Yost’s enforcement of §3519.01 without the availability of timely review. That is, they argue Yost’s certification decision itself unduly burdens their right to political expression when § 3519.01 gave him the authority to make that decision with inadequate means for challenging it. In this context, Plaintiffs are prohibited from advocating for their proposed amendment in the way they wish, thus undermining their freedom of “expression of a desire for political change and” their ability to discuss “the merits of the proposed change.”

The dissent suggests that Plaintiffs do not have an injury in fact because, without a complaint for a writ of mandamus before the Supreme Court of Ohio or a new summary before Yost, Plaintiffs face “no ‘actual present harm.’” Contrary to our dissenting colleague’s conclusion, however, Plaintiffs’ inability to advocate for and speak about the proposed amendment how they wish is a “continuing, present adverse effect[].” Such an allegation of an ongoing injury—a barrier continuously preventing their speech—supports Article III standing.

So, it’s not a clear path to victory, but at least there’s now a path to continue the lawsuit.

AG Yost argued the federal court had no business hearing this case in the first place. The correct venue would be the state court because the federal government isn’t allowed to directly control the inner workings of state governments. According to Yost, the only court with power to make a call on an injunction or the ballot measure approval process is the state’s top court.

The Sixth Circuit disagrees, pointing out that the AG is failing (deliberately or not) to understand the nature of the relief being sought by the plaintiffs.

Yost’s redressability argument, however, misconstrues the relief that Plaintiffs seek. Yost construes Plaintiffs’ request for injunctive relief as a backwards looking attempt to alter his March 2024 certification decision. In contrast to that construction, Plaintiffs seek injunctive relief preventing Yost from enforcing § 3519.01 against them—enjoining Yost’s authority to certify, or fail to certify, their summary generally.

It’s not about overturning a past decision by Yost, which might have to be restricted to state courts. It’s about future enforcement, which means the federal court system can handle this lawsuit without overstepping its bounds.

Furthermore, it is AG Yost — not the state Supreme Court — that makes initiative calls and enforces this statute. That means Yost can be sued in this venue and, if needed, hit with a federal injunction preventing him from engaging in further constitutional violations.

Tellingly, the AG’s office invoked sovereign immunity as another option to escape this lawsuit and the proposed injunction. Sovereign immunity is one of several immunities the ballot measure hopes to eradicate. If the AG detected any irony when raising this immunity, it certainly didn’t stop him from invoking it.

The decision heads into the statutory weeds for awhile before emerging with this conclusion: the statute and the way it’s enforced is likely unconstitutional. With zero options available to challenge AG decisions and time being of the essence during an election year, there’s a good chance the plaintiffs will prevail in court. As the statute stands now, the AG can reject any measure it doesn’t care for every single time they’re presented. And that is definitely a rights violation.

Yost’s unreviewable discretion in this instance puts Plaintiffs in the position of altering their petition summary, which “involves both the expression of a desire for political change and a discussion of the merits of the proposed change.” This constitutes a severe burden on Plaintiffs’ ability to advocate for their initiative because it restricts one-on-one communication between Plaintiffs and potential voters.

Likewise, the second concern from Grant—that Plaintiffs will be less able to garner the necessary signatures to be placed on the ballot “thus limiting their ability to make the matter the focus of statewide discussion,” 486 U.S. at 423—is also present here. Without timely review, § 3519.01 allows the Attorney General to reject a summary in perpetuity such that the petitioners are never able to begin collecting signatures in support, much less garner the number of signatories required. Thus, the time that Plaintiffs will have to speak with potential signatories about the proposed amendment as well as how widely they can convey the message has been meaningfully diminished, if not altogether eliminated. Accordingly, § 3519.01 imposes a severe burden on Plaintiffs’ “core political speech” because it is less likely that Plaintiffs will be able to garner the necessary signatures to be placed on the ballot “thus limiting their ability to make the matter the focus of statewide discussion.”

The state court limitations AG Yost raised are even worse. It creates a catch-22 that means ballot measures not favored by the AG will never be able to meet the requirements to engage in a judicial review by the state Supreme Court.

Yost’s argument turns Ohio’s law on its head. Rather than provide limited discretion to the Attorney General, in this case Yost has issued multiple denials—six based on the fair and-truthful determination—without any review by an administrative body or court. And, although Yost is correct that § 3519.01(C) provides for original jurisdiction in the Supreme Court of Ohio, it does not require that court to review the case within a reasonable time, in light of the election deadlines. Instead, because Plaintiffs must submit their approximately 400,000 signatures 125 days before the election and the Supreme Court of Ohio’s mandatory-expedited review applies only to cases filed within ninety days of the election, the mandatory-expedited review will never apply.

And that’s how you get hit with an injunction, ladies and gentlemen. You craft a statute that makes any challenge of a rejection impossible and ensure the only political speech allowed to make it onto a ballot is speech the government likes. The case heads back down to the lower court for more examination with an injunction attached, which means the plaintiffs can not only consider seeking to have this statute blocked permanently, but can go back to trying to eliminate multiple forms of government immunity.

Filed Under: 14th amendment, 1st amendment, 6th circuit, absolute immunity, appeals court, ballot measure, David yost, free speech, ohio, qualified immunity, supreme court, voting

Sixth Circuit Denies Immunity To Officers Who Waited 19 Months To Process A $30k Forfeiture

Legal Issues

from the steal-faster,-cops dept

This case involves both civil forfeiture and criminal forfeiture. First one, then the other. Not that the order matters as much as the government’s unwillingness to do much more than sit on the $30,000 in cash they took from an Ohio couple during a supposed drug investigation.

Civil forfeiture allows the government to keep seized property without even bothering to prove a criminal case in court. All the government usually needs to do is claim the stuff it took was the result of criminal activity. Criminal forfeiture is tied to criminal charges. It’s much harder to prove guilt beyond a reasonable doubt, which is why the government prefers civil forfeiture to criminal forfeiture.

Like most forfeitures, this saga began with a pretextual traffic stop. From the Sixth Circuit Court of Appeals decision [PDF]:

In early 2018, Chillicothe detectives investigated and surveilled plaintiffs, believing they were part of a large drug trafficking operation. On January 10, 2018, Chillicothe police stopped James for a traffic violation, and officers seized his cell phone and $1,080 in cash. When Nicolette arrived at the scene, they seized her cell phone and an additional $715. Officers then obtained and executed a search warrant for their home, which authorized a search for not only evidence of drug crimes, but currency, financial records, and communication devices. They did not find any drugs or paraphernalia, but discovered and seized $33,715 in cash and various personal property.

One car, one home, and two people searched. No drugs. Just cash, which the PD helped itself to. Then… it did nothing for an exceedingly long time.

Their property was seized in January 2018. For the next several months, the couple repeatedly demanded their property be returned. The PD refused, claiming the property was essential to its “ongoing investigation.” Finally, in November, the PD submitted its case to the prosecutor… who then did nothing for several more months.

It wasn’t until June 2019 — 17 months after the seizure and after the couple filed a lawsuit in federal court — that the prosecutor bothered trying to bring a criminal case to a grand jury. The only offense the indictment listed was “receiving proceeds of an offense subject to forfeiture proceedings.” The PD had already assumed the seized cash was guilty despite finding no evidence of drug possession or drug dealing. The prosecutor simply closed the loop by turning that unproven assumption into a criminal accusation.

The lower court found in favor of the couple and their constitutional rights.

[I]n October 2019, the district court granted plaintiffs’ request for a preliminary injunction.
The court noted that it was “at a loss to comprehend the state’s failure to file in a timely manner
civil forfeiture or request forfeiture in the first indictment.” It declared defendants’ actions unconstitutional and ordered “the return of property seized during the execution of a search warrant on January 10, 2018.” James’s pending state charges were dismissed in November 2020. In March 2021, defendants returned the cash to plaintiffs’ counsel.

The government (personified by the prosecutor and involved officers) may have felt this was good enough. No conviction was obtained but the couple got their stuff back, but likely only because a court ordered the return. Had it not been for the lawsuit, there’s a good chance the PD would still be in control of this property.

And there’s a good chance the government hoped the very belated return of property it never bothered to properly forfeit would convince the couple to drop their lawsuit. But the officers and the prosecutor were forced back into the action due to the lower court’s denial of immunity.

The prosecutor asked for absolute immunity because his screwing around was related to his “prosecutorial functions.” Unbelievably, the involved officers asked for the same thing, claiming their refusal to move forward with a forfeiture was just them helping the prosecutor out with his “prosecutorial functions.”

Oh my no, says the Appeals Court. First off, the baseline is qualified immunity. For both sets of defendants. That includes the prosecutor, who seemed really sure absolute immunity would let him off the hook.

Absolute immunity is the exception rather than the rule.” Spurlock, 330 F.3d at 796 (citation and brackets omitted). We generally assume that qualified, not absolute, immunity is
sufficient to protect a government actor. Id. So “[t]he official seeking absolute immunity bears
the burden of showing that such immunity is justified for the function in question.” Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993) (citation omitted). It does not matter that defendants are police officers, rather than prosecutors, because we use a “functional approach” to determine whether officials are entitled to absolute immunity, “which looks to the nature of the function performed, not the identity of the actor who performed it.”

No absolute immunity for the cops:

In defendants’ view, if prosecutors are entitled to absolute immunity for their “professional evaluation of the evidence assembled by the police,” Buckley, 509 U.S. at 273, then police officers must be entitled to the same immunity when they hold the evidence (and therefore facilitate the prosecutor’s evaluation). More specifically, they contend that once their investigation was complete and they were just holding the evidence pending a prosecutorial decision, the possession became a prosecutorial function. We cannot agree.

Defendants never evaluated the evidence; they merely held it—a fact they admitted to the district court, calling their actions “ministerial.” Nor did they do any advocacy, which is the “critical inquiry.” Holloway, 220 F.3d at 775 (citation omitted). Absent that, we see no actions related to the judicial process—let alone ones that are “intimately associated with the judicial phase of the criminal process.” Thus, defendants are not entitled to absolute immunity.

No qualified immunity either. There’s precedent in this circuit: a case that involved a much shorter delay (six months) than the 19 months in this case.

At this stage, Baumholtz is directly on point. The district court made two findings of fact crucial to this conclusion: it found that the delay in this case was 19 months and 6 days (the period between the January 10, 2018, seizure and the August 16, 2019, indictment), and that “Defendants have offered no credible explanation for the latter half of the 19-month delay.” Indeed, plaintiffs’ case is even stronger than Baumholtz’s—the delay is nearly four times as long (first factor), and they timely sought return of their property “multiple” times “and filed a replevin action” (third factor). Accordingly, under Baumholtz, reasonable officers would have known that plaintiffs had been unlawfully deprived of their property.

“Reasonable officers would have known.” These ones probably did. Like the prosecutor, they didn’t care how long it took to get around to effecting the forfeiture because all the property belonged to someone else. And now they’re going to have to show up in court to defend actions the lower court has already ruled unconstitutional, rather than hide behind a wall of immunity.

The lesson here is: if you’re going to steal stuff from citizens, do it faster. Otherwise, you’re just asking to get sued.

Filed Under: 6th circuit, absolute immunity, chillicothe, civil asset forfeiture, criminal forfeiture, forfeiture, legalized theft, qualified immunity

No Absolute Immunity For Sheriff, Prosecutor Who Created False Testimony That Locked Up An Innocent Man For 16 Years

Legal Issues

from the not-as-absolute-as-hoped dept

The thing about absolute immunity is it tends to be absolute. Except when it isn’t. This immunity — one that protects prosecutors, judges, and certain politicians — can be stripped, but it happens so rarely it’s little more than a rounding error in the totality of civil rights lawsuits. (Perhaps unsurprisingly, another case involving stripped absolute immunity also deals with Louisiana law enforcement.)

To lose access to this immunity, prosecutors must cross several lines. The prosecutor in this case (brought to us by the Volokh Conspiracy) did exactly that. Louisiana district attorney Scott Perrilloux and Livingston Parish Sheriff’s Detective Marlon Foster crafted a story for a 14-year-old “witness” to testify to in court, resulting in the falsely accused Michael Wearry to be convicted for a murder he didn’t commit.

Here’s part of the lower court’s ruling [PDF], which was handed down in June 2020.

The question presented by Foster’s Motion is whether a Livingston Parish Sheriff’s Office Detective, acting in concert with a local prosecutor, is entitled to absolute immunity for allegedly pulling a 14-year-old boy out of school on at least six occasions to intimidate him into offering false testimony at a murder trial – false testimony concocted wholesale by that detective and prosecutor and carefully rehearsed, the child’s compliance ensured with scare tactics like taking him to view the murder victim’s bloody car.

The detective asked for absolute immunity, claiming the alleged misconduct was entirely related to the prosecution of Wearry. This claim conveniently omitted the obvious fact that the intimidation of the 14-year-old also contributed to (the now-deceased) Detective Foster’s “investigation.”

The ruling against both the detective and the prosecutor dives a little deeper into the allegations, showing just how severe this misconduct was and how it continued even after Wearry’s conviction was vacated (by the US Supreme Court, no less):

Perrilloux and Foster allegedly “made an intentional and deliberate decision to fabricate a narrative . . . in order to procure Wearry’s conviction and death sentence”;

Identified Jeffery Ashton, a 14 year old child who was “subject to juvenile court proceedings at the time and was vulnerable to intimidation by authorities.” Foster “picked him up from school, [drove] him to Perrilloux’s office, and then, without a parent present . . . intimidated him” and “provided [him] with a completely fabricated story to adopt and repeat” that implicated Wearry in the murder;

Foster and Perrilloux included Wearry on a list of people Ashton identified from a photo array, even though “Ashton told them he did not” recognize Wearry and, in fact, “had no personal knowledge connecting Wearry to Walber’s death”;

Foster and Perrilloux “[C]oached Ashton in at least six separate meetings to perfect the falsified story”; Persuaded Ashton that he had previously provided “details about the night of Walber’s murder that Ashton had never actually provided”;

And, after the United States Supreme Court vacated Wearry’s conviction, allegedly instructed Livingston Parish Sheriff’s Deputy Ben Ballard to “coerce Ashton into perpetuating his false testimony,” including “promis[ing] favors in exchange for favorable trial testimony” at the new trial.

At that point, the court had already denied absolute immunity to the prosecutor. In this decision, it denied absolute immunity to Detective Foster.

Foster’s survivors appealed. And the Fifth Circuit Appeals Court — which rarely sees an immunity request it doesn’t like — has affirmed [PDF] the lower court’s judgment.

As the Appeals Court points out, absolute immunity shields prosecutors (and officers hoping to be thought of as prosecutors) from lawsuits predicated on charging decisions. Once these entities start engaging in investigative work, the immunity is no longer absolute. And when they pull the shit these two did, nothing can save them.

We can discern no meaningful difference between the prosecutor’s fabrication of evidence in Buckley and the fabrication alleged here. Both involved, at bottom, a search for false witness testimony for use as evidence. As the Ninth Circuit put it succinctly: “Shopping for a dubious expert opinion is fabricating evidence, which is unprotected by absolute immunity. It follows, then, that acquiring known false statements from a witness for use in a prosecution is likewise fabricating evidence that is unprotected by absolute immunity.” Milstein v. Cooley, 257 F.3d 1004, 1011 (9th Cir. 2001) If anything, the allegations in Wearry’s complaint make out a more extreme conspiracy to manufacture false evidence than the one presented in Buckley.

[…]

When Ashton’s repeated statements to the Detective and District Attorney varied from their prescribed narrative, the officials concealed those statements. Ashton did not identify Wearry in a nine-person photo array, but instead identified others in the array. And even when the Detective and District Attorney pointed out Wearry’s photo to Ashton and asked about it specifically, Ashton stated that he did not recognize him. Yet the narrative presented by the Detective and District Attorney included Ashton’s positive identification of Wearry. Thus, while the prosecutor in Buckley shopped for false testimony to support his physical evidence theory, the defendants here falsified a witness’s statements themselves.

Put more succinctly, this is the fabrication of evidence during an investigation, not merely the suborning of perjury at trial. That’s why the pleas for absolute immunity fail… at least for the prosecutor. As noted above, the Fifth Circuit simply says that the detective has no right to avail himself of this immunity that has never been extended to local law enforcement officers during investigations. While it can be obtained when sued over testimony during a criminal proceeding, it is not available when the detective was neither a witness nor a prosecutor.

Immunity denied.

Neither Detective Foster nor District Attorney Perrilloux is owed absolute immunity under the facts alleged in Wearry’s complaint. The Supreme Court has made clear that police officers, even when working in concert with prosecutors, are not entitled to absolute immunity. Nor are prosecutors when they step outside of their role as advocates and fabricate evidence. The facts and actions alleged by the complaint are fundamentally investigatory in nature, and therefore absolute immunity is not warranted.

The only option now is to appeal this decision. But that would require asking the Supreme Court to find in favor of these law enforcement officials — ones the court criticized when vacating Wearry’s conviction. Good luck with that.

Filed Under: absolute immunity, livingston parish, louisiana, marlon foster, qualified immunity, scott perrilloux

Donald Trump Asserts Fair Use, 'Absolute Immunity' In Lame Attempt To Evade Copyright Suit By Eddy Grant

Copyright

from the and-then-we'll-take-it-higher dept

Eddy Grant, responsible for the banger Electric Avenue, has made it onto our pages a couple of times in the past, most recently over a copyright spat with Donald Trump. At issue in the lawsuit was the Trump campaign sending around a video of a “Trump/Pence” train zipping by, with a Biden hand-car chugging behind it. While there were lots of references to Biden sniffing people’s hair (seriously, what is that?) and other silly jabs, the real problem is that the entire video has Electric Avenue playing as its soundtrack. Eddy Grant didn’t like this, of course, and sued over it. Trump tried to get the suit tossed on fair use grounds, arguing that the use of the song was transformative… but that isn’t how it works. Simply using the song in a way the author didn’t intend doesn’t make the use transformative. Were that the case, every commercial advertisement out there would feature copyrighted songs as backgrounds to selling all manner of things. Again, not how it works and the court refused to toss the suit in response to Trump’s Motion to Dismiss.

And so now this whole case moves forward and Trump is once again asserting fair use in his answer to the complaint… but with a twist! More on the twist in a moment, but first the fair use argument.

Former President Trump denied Eddy Grant’s copyright infringement claims in a formal response submitted to the court late Monday night.

“Defendants deny that they have willfully and wrongfully infringed Plaintiffs’ copyrights,” the response said. “Plaintiffs’ claims against Defendants are barred, either in whole or in part, by the doctrines of fair use and/or nominative use.”

So pretty much the same fair use argument that was made in Trump’s initial motion to dismiss (embeded below). This argument almost certainly won’t work. And, while I don’t find myself arguing against fair use very often, this one doesn’t make a whole lot of sense. The video used a significant portion of the song and the song was used in nearly the entire video in question. And, while Trump asserted the video was parody, it’s not parody of Electric Avenue. That’s the point of the parody defense: the use of a work in order to satirize it. That isn’t what’s happening here. The target of the satire is Joe Biden, not Eddy Grant or his song.

It seems like Trump’s legal team might realize that argument is a loser as well, given that the added twist I mentioned earlier.

The former president also asserted Grant cannot sue him because of what Trump’s attorneys called “Presidential absolute immunity.”

So, here’s the thing: someone really needs to get Donald Trump in a room, sit him down, and explain to him that he cannot simply shout “presidential immunity!” every time something in his life doesn’t go the way he wants to make it magically go away. This immunity claim is something he’s using with wild abandon, including in far more serious realms like in denying requested documents for the January 6th committee.

But this is far more absurd. It wasn’t Donald Trump, the President, that put out this video. Rather, it was the Donald Trump campaign that did so and that campaign very much does not qualify for presidential immunity, “absolute” or otherwise. Immunity for presidents from prosecution or suit typically ends when that person is no longer president and, last time I checked, the subject of the mockery in the video is president now, not Donald Trump.

“Given the court’s recent favorable determination, there are very few issues that remain to be resolved. We are confident that our clients’ rights will ultimately be fully upheld and look forward to Mr. Trump fully explaining his actions,” Grant’s attorney, Brian Caplan, said in a statement provided to ABC News.

That’s the sound of a lawyer quite confident in his case. And it’s frankly quite hard to argue with him.

Filed Under: absolute immunity, campaign commercial, copyright, donald trump, eddy grant, electric avenue, fair use, presidential immunity, sovereign immunity