Short Circuit: A roundup of recent federal court decisions

Hot cells, effluent injections, and illegal downloading.

|The Volokh Conspiracy |

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

The Eighth Amendment prohibits the federal government from imposing excessive fines, but does that protection apply in state court? The Indiana Supreme Court recently said no and allowed officials to take a man's $40,000 car, purchased with money the government admits was lawfully obtained, after he was convicted of a minor drug crime. This week, IJ asked the U.S. Supreme Court to take the case. Read more here.

New on the podcast: a not-so-speedy trial, the right to vote in U.S. territories, and the ban on out-of-state handgun sales. Click here for iTunes.

  • The D.C. Circuit, sitting en banc, says that the structure of the CFPB, whose single director does not serve at the pleasure of the president, is constitutional. Nonetheless, (as a dissent characterizes it) the CFPB "flunked 'Rule of Law 101′" by reinterpreting a statute and retroactively enforcing it against the petitioner, so the agency's enforcement action can't stand. (Click here for the highlights of the 250-page ruling from Aaron Nielson.)
  • Jury: An internet service provider must pay $25 mil to a music copyright holder because the ISP failed to take sufficient measures to prevent its customers from illegally downloading music. Fourth Circuit: The ISP is likely liable, but new trial and no need to pay the $25 mil because of bad jury instructions.
  • Man pleads guilty to failing to register as a sex offender, serves two years in prison, and attempts to register upon his release. Whoops! Texas officials decline to put him on the registry, say he isn't actually required to register. Fifth Circuit: The man's attorney failed to conduct even a cursory review of the case law before advising him to plead guilty. That was ineffective, and the guilty plea is vacated.
  • Is an inmate entitled to a preliminary injunction when prison officials allegedly switch his special diabetes diet to a "sugar based diet," causing him to have a heart attack? Uh, yeah, says the Fifth Circuit, that would probably violate the Eighth Amendment.
  • In response to court order, Angola, La. prison officials install portable ice chests with fans for death row inmates whose medical conditions are exacerbated by the sweltering conditions in the "state-of-the-art" facility. Fifth Circuit: Which is probably reasonable, but the district judge should not have ordered officials to ensure plaintiffs' quarters do not exceed 88 degrees. Reversed and remanded. (We discussed the Fifth Circuit's previous decision in the case, which reproved officials for cheating during the court-ordered temperature monitoring period, on the podcast.)
  • Two campaign finance rules that Austin, Texas imposes on candidates, banning them from fundraising except in the 180 days before an election and requiring them to spend or return all but $20k of their campaign funds after election, violate the First Amendment, says the Fifth Circuit. Another provision, capping individual contributions to a candidate at $350, passes muster, however.
  • Allegation: Detroit police arrest wrong man, keep him in jail for two weeks despite having fingerprints and mugshots at their disposal that would have cleared him. Sixth Circuit: The man can sue the arresting officer.
  • After her son dies in a fire, Indiana police accuse woman of setting the blaze. When an ATF investigator finds no evidence of arson, state police persuade him to change his testimony. The woman is wrongfully convicted and spends 17 years in prison. Can she sue the ATF agent? Maybe, says the Seventh Circuit; we remand for fact finding about the agent's official duties.
  • When Jackson County, Ore. teachers go on strike, the school district can prohibit them from picketing on school property, right, because picketing is speech on behalf of the school district, right? That makes no sense, says the Ninth Circuit; everyone knows the teachers were speaking only for themselves.
  • Families of government contractors killed by ISIS sue Twitter for providing material support to terrorism. Ninth Circuit: At most, plaintiffs have established that Twitter facilitated the growth of ISIS, not that Twitter facilitated these particular terrorist acts. No liability.
  • Minor in deportation proceedings says he has the right to court-appointed counsel on the government's dime. The Ninth Circuit says, "Pony up, kid."
  • Can the FBI invoke the "law enforcement purposes" exception to Freedom of Information Act for training materials designed generally for crime-busting, or must it identify a specific statute it was trying to enforce? Crime-busting is enough for this Ninth Circuit panel.
  • "The Lahaina Wells and the Effluent Injections" is either the world's worst young-adult novel or the topic of this Ninth Circuit Clean Water Act ruling. (Or, depending on the success of your editor's book proposal, both.)
  • Does the term "groceries" in a contract refer to just food or to food and household goods? Eleventh Circuit: We were very clear about this the last time the question was before us, in 2014, and yet the losing party's lawyer persuaded the district court to defy our decision. (Footnote: Just for the record, here is that lawyer's name.)
  • Tinder charges different prices for users over and under the age of 30. California appeals court: Which is unlawful age discrimination. "Accordingly, we swipe left, and reverse."
  • Pima County, Ariz. police are summoned to help suicidal man. Instead, an officer shoots him in the chest as he cuts his own throat. The man survives. Other officers file bogus charges against him, visit him in the hospital (against his attorney's wishes) where they lie to him, try and get him to sign a release form, and surreptitiously record him. A jury finds the shooting unjustified; the man is awarded $5 mil. Arizona appeals court: He still gets the $5 mil, but a partial retrial is necessary; the jury may have unfairly held the officers at the shooting liable for the actions of the other officers.
  • And in en banc news, the Ninth Circuit will reconsider its holding that a San Francisco law requiring warning labels on sugary drinks likely violates the First Amendment.

In 2012, Coloradans for a Better Future (CBF), an advocacy group, ran a radio ad opposing a candidate for state office who admitted to misstating his educational credentials. The candidate lost, but in retaliation he filed several lawsuits against CBF alleging petty violations of the state's campaign finance laws. Unable to pay for its legal defense, CBF contacted an attorney for pro bono help shutting down. But that prompted another lawsuit, wherein the candidate argued that by failing to report the free legal services as a "contribution," CBF had again violated the law. Broke and defunct after years of harassment, the group didn't even file anything with the Colorado Court of Appeals, which ruled against it in 2016. But last week, after IJ stepped in to represent CBF, the Colorado Supreme Court unanimously reversed. The ruling means the countless individuals and groups who rely on free legal advice to navigate the state's campaign finance system can continue to do so. Click here to read more.

NEXT: Supermajority Required for Finding of Unconstitutionality

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  1. “the Eighth Amendment prohibits the federal government from imposing excessive fines, but does that protection apply in state court? The Indiana Supreme Court recently said no ”

    No fan of the Incorporation Doctrine but I don’t see how you can not apply it to the fine provision when you apply it to the bail and cruel punishment parts.

    1. Agreed, further the Indiana State Constitution has almost identical language. So I’m not sure why it even matters to the outcome of the constitutionality of the fine.…..tml#sec-16

      Section 16. Excessive bail or fines, Cruel and unusual punishment

      Section 16. Excessive bail shall not be required. Excessive fines shall not be imposed. Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense.

  2. The “groceries” case highlights several problems with the legal profession:

    1) The poor district judge who was led astray be a lawyer: The opinion makes us think that this was some poor, uneducated hillbilly who was led astray by some city-slicker. What does this say about the quality of federal district court judges? Why did the appellate panel not issue sanctions against this judge? At the very least they should have remanded the case to a different district judge.

    2) What sanctions were implemented against the attorney “named in the footnote’? Why no referral to the State Bar of Georgia? I often hear trial lawyers complain that the medical establishment does not regulate itself. In contrast, the legal profession never regulates its members; disciplinary action against an attorney is almost unheard of. The court was left completely out in the woods in this instance.

    1. Discipline?

      He argued and the Court bought the argument. What rule did he violate?

    2. I think the tone of the opinion is misplaced. There is nothing in the quoted materials which suggests this was intentional evasion by the district court. To paraphrase Bork, the analysis was honestly but (quite clearly) incorrectly applied.

      The rebuke for the attorney is closer to the mark but still misplaced. He made a retroactivity argument and the Court bought it. There was no need to make a retroactivity argument before remand. At most, his one statement about the mandate was incorrect.

    3. “Why did the appellate panel not issue sanctions against this judge?”

      Does an appellate court even have the authority to sanction district court judges? Given that all federal article III judges ,which would include the district court judges, serve life terms and are removable only by impeachment, I would think the answer is no.

  3. “(Footnote: Just for the record, here is that lawyer’s name.)”

    Kind of the Court to advertise what a good lawyer he is.

  4. In the Indiana civil forfeiture case, leaving aside the 8th Amendment issue, if the state concedes that the vehicle was purchased with legally obtained funds, what is the basis for the forfeiture? Civil forfeiture doesn’t require a criminal conviction, but it does require some sort of connection to a crime, either acquisition as a result of the crime or use in commission of the crime.

    1. Use in commission of the felony was the basis. “Timbs regularly drove the Land Rover between Marion and Richmond, Indiana, to buy and transport heroin.”

  5. So, Tinder can’t give a discount to young people, the poorest age-class. But it is perfectly /fine/ for almost /everyone/ to give discounts left and right to us geezers, the wealthiest age-class.

    It’s against my economic interests, but by G*d I’d like to see this discrimination challenged in court! The Cal appeals court would have to twist themselves in knots to avoid the implications of their ruling (not that they couldn’t do it, I’m sure).

    1. I doubt there would even be any knots involved. Pretty sure only the old geezers are a protected class under the law.

    2. The same liberals who throw a tantrum about women being paid less for wanting to work better hours are fine with bars doing “ladies nights” specials.

      1. Ladies nights are illegal in California.

  6. “Can she sue the ATF agent? Maybe, says the Seventh Circuit; we remand for fact finding about the agent’s official duties.”

    Found one! Says right here that his duties did not include perjury, or framing people for crimes.

  7. The Coloradans for a Better Future case is particularly infuriating, and provides an example of how so-called campaign finance law can be weaponized against one’s opponents. They ran an ad against a candidate, and so he decided to vindictively go after them, not only attacking them for that, but simply for trying to wind down their existence.

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