Thomas v. Durastanti (CA10) (here) is part of a growing trend. Federal courts, for years, have been taking cases out of the hands of a jury. A judge is supposed to answer questions of law. Juries are supposed to answer questions of fact. This is a matter of constitutional law. It's a matter of common law. No judge can legitimately claim to have the power to decide questions of fact.
How do you get around this? Simple. You claim that even if the facts are true, there is no legal basis for the suit. But how do you determine if the facts are true? Watch a video.
But wait...Isn't watching a video acting as a jury? In Scott v. Harris, in disregard for centuries of common law, judicial conservatives concluded that judges may decide what the video says. Judges may now weigh and review evidence.
In Durastanti, here is what the video revealed:
Two guys jumped out of a Ford Explorer with their guns drawn. They drew their guns on unarmed men, who had stopped at the gas station for a re-fill. The would-be car jacking victim accelerated his car, hitting one of the armed gun men. The crime victim sped off.
And now comes the predictable punchline: The car jackers were ATF agents in an unmarked police car. They were not wearing badges, or even a cool ATF jacket. There is no way that the plaintiffs could have known they were not being car jacked. The driver thus did what most of us would have done: Run!
One might wonder why the ATF agents drew their guns on the men. Surely they were under investigation for something evil. Here is another punchline: The ATF agents, at most, had probable cause that the men they drew down on had been - wait for it - speeding. Yes, speeding. Not speeding as in using meth, but speeding as in driving too fast for road conditions.
As any 1L will tell you on her Crim Pro final, you cannot use deadly force when someone seeks to avoid a traffic infraction. You cannot flash your gun on someone for an infraction. It's call the fleeing felon rule for a reason. Unless the person fleeing is a felon, and poses a danger to others: Keep your guns in your pockets, please. Thus, the seizure of the men was unconstitutional. Right?
Wrong. Two judges watched the video, and somehow concluded that the case wasn't even worthy of trial. They dismissed it on summary judgment. Their opinion is long - too long for such a simple case.
Durastanti drew a dissent (here). Perhaps Judge David M. Ebel can get Durastanti heard en banc. It really is a horrible case. The Federalist Society should host a Separation of Powers panel discussing it. No doubt the "judicial conservatives" are are outraged as I that the judges have exceeded their Article III power by answering questions of fact rather than limiting themselves to questions of law.