Short Circuit: A roundup of recent federal court decisions

Tactile cash, new lead paint rules, and bedding for illegal immigrants.

|The Volokh Conspiracy |

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

New Minnesota regulations will soon force salons offering low-cost eyelash extension services to shut down. A good-faith effort to protect the public or a sinister plot to outlaw competition? There is some evidence of the latter, explains IJ Senior Legislative Counsel Lee McGrath on Minnesota Public Radio. New on the Short Circuit podcast: School uniforms, wedding venue permits, and qualified immunity.

  • Pursuant to 2008 court order, Treasury officials agree—by 2018 at the latest—to issue new paper currency with tactile features that enable blind individuals to detect different denominations. Treasury officials (now): This is actually harder than we thought; we'll have them by 2038 at the latest. District court: Fine. D.C. Circuit: Maybe not.
  • Feds: A district court order temporarily blocking us from excluding transgender individuals from serving in military shouldn't be allowed to take effect until we've had a chance to appeal it. D.C. Circuit: Both sides can start briefing the appeal, but the preliminary injunction remains in effect for now.
  • Standard probation condition: Released offenders or their probation officers must disclose to third parties their criminal records, personal histories, and characteristics that may pose "risks." Probation officer: Offender once lied to the TSA that his girlfriend was trafficking drugs; now he has to disclose his romantic relationships to me so I can warn them. Sixth Circuit: Not so fast. This standard probation condition is too vague, so it violates due process.
  • Ferndale, Mich. officer shoots, kills fleeing motorist who posed no threat to officers or the public. Which is unconstitutional, says the Sixth Circuit, but the officer is entitled to qualified immunity. It's clearly established that officers are not to shoot nonthreatening motorists as they attempt to initiate flight, but here the chase had been underway for several minutes before he fired. Dissent: "[T]he degree of factual similarity that the majority's approach requires is probably impossible for any plaintiff to meet."
  • Minneapolis police shoot, kill burglary suspect they'd cornered in a basement. Police say he grabbed an officer's submachine gun, shot and wounded two officers, and then was shot himself. Allegation: The officers' account is inconsistent with video filmed from across the street. Eighth Circuit (over a dissent): No qualified immunity. (Related: The killing led to protests in the city.)
  • Hawaii officials: The President's latest order blocking foreign nationals from six countries from visiting the U.S. or getting immigrant visas is unlawful. Feds: This case isn't ripe because no one's actually been denied entry yet; and besides, decisions on whether to issue or withhold a visa are nonreviewable. Ninth Circuit: The third time is not a charm for the gov't. Travel Ban 3.0 is unlawful because it exceeds the President's immigration authority delegated by Congress.
  • In 2009, EPA officials grant request to rewrite lead paint rules so as to better protect the public. Petitioners: It's been years. Where are the new rules? EPA: Might take another four years to draft something and a couple more to implement. Ninth Circuit (over a dissent): Propose a rule in 90 days and get it finalized a year later—or give a good reason why you can't.
  • Plaintiffs, who are potentially criminally liable for writing bad checks, sue DA's private contractor who used prosecutors' letterhead to threaten them with criminal prosecution unless they pay fines and fees as part of California's Bad Check Diversion Program. Contractor: Plaintiff who regrets signing up for diversion program cannot sue us in court because she agreed to arbitrate any claims. Ninth Circuit: The case can proceed in court.
  • Allegation: U.S. Border Patrol detains individuals caught crossing into Arizona in overcrowded, inhumane conditions for up to three days before processing them. District court: While the class action proceeds, the Border Patrol shall provide clean mats and blankets, some means to attend to personal hygiene (but not necessarily showers), and medical screenings. Border Patrol: That's too much. Plaintiffs: That's too little. Ninth Circuit: Then the district court got it just right. Affirmed.
  • New Mexico state police officer fires upon a minivan full of kids as their mother flees a traffic stop. He misses (tires and people). District court: No qualified immunity. Tenth Circuit: Reversed. The family was fleeing, and so were not seized, and so have no excessive force claim. (Video here.)
  • In known video blind spot, corrections officer punches restrained, compliant inmate in the stomach, knocking him down but apparently causing little damage. The officer is fired. North Carolina appeals court (over a dissent): Reinstate him. North Carolina Supreme Court: Affirmed. (Hat tip: Michael C. Byrne.)
  • And in en banc news, the Third Circuit will reconsider its decision allowing a landlord not to renew the lease of a family on rent assistance. (Hat tip: CA3blog.com.) The First Circuit has declined to reconsider its ruling that two union leaders who threatened to picket Boston-area businesses are not guilty of extortion.

December was an eventful month at the Institute for Justice: A Wyoming judge ordered the state to return $91,800 cash seized from a musician during a roadside stop. A Maryland trial court ordered Baltimore to stop enforcing its food truck ban. An Illinois appeals court upheld Chicago's food truck ban. An Indiana trial court temporarily halted a private developer's land grab. A federal judge in Oregon declined to dismiss an engineer's free speech case. A Florida appeals court upheld a school choice program that benefits 100,000 students. A Texas appeals court upheld a scheme that forces craft brewers to give up millions of dollars in distribution rights to distributors. And we filed a challenge to Nashville's ban on home-based businesses. Here's to a bustling 2018!

NEXT: No Foreign Spy Program Reauthorization Without Citizen Protections

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  1. The Sixth Circuit decision enabling an unreasonable killer in police uniform (Ferndale) to escape accountability was issued by two judges nominated by Democrats (although one stood for office as a Democrat and a Republican). Those two should be ashamed, and plainly know better; their lousy judgment was deftly described by the dissenting judge, although no pointers should have been required. The Supreme Court authority on which they claimed to base their decision should be withdrawn. I hope a better Supreme Court than the one we have today overrules that case.

  2. “[T]he degree of factual similarity that the majority’s approach requires is probably impossible for any plaintiff to meet.”

    Exactly right. Under the current regime, if a court holds that it’s unlawful for a cop to shoot at a suspect who reaches his hand out in the general direction of his pocket, a future cop would have qualified immunity if the first case occurred at 5:02 p.m. and the second at 5:48 p.m. I wish I was exaggerating, but I’m sadly not.

  3. Food truck ban struck down in Baltimore, and upheld in Chicago. Ripe for SCOTUS?

    It’d be fun, anyway.

  4. On the Treasury redesign of currency for the blind. Lots of apps for that. And these apps are backward compatible in that it will work on bills printed before any thpreasury changeover, and work on foreign currency. In short, changing currency is probably the worst possible way to accommodate people with vision issues.

  5. I’m still trying to understand how the NM District Court believed the BS from Farrell in light of the dash cam and it took the Appellate Court to correct it.

  6. The new UK ten pound note has braille style markings on it. The five and ten pound notes are polymer rather than paper. The five pound note has Churchill on it and does not have the braille markings. The “tenner” came out in the last few months and is polymer and has braille markings.

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