Short Circuit: A roundup of recent federal court decisions

Prosecuting for profit, the Hacky Sack champ, and a Christmas Spectacular.

|The Volokh Conspiracy |

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

In The New York Times, IJ Senior Attorneys Robert McNamara and Paul Sherman urge Americans of all stripes to put aside their beliefs about abortion and root for an outcome in NIFLA v. Becerra, which was argued before the Supreme Court this week, that protects free speech.

New on the podcast: a trio of bestirring property rights cases. Click here for iTunes.

  • In an effort to crack down on robocalls, FCC passes broad regulation of autodialers. How broad? So broad that it treats basically every smartphone like an autodialer. D.C. Circuit: That is not reasonable.
  • "Pain, pathos, and personal degradation": Should prosecutors have been permitted to introduce (cringe-inducing) evidence of Maine doctor's incestuous relations with his daughter or was said evidence just meant to prejudice jurors (in tax, health fraud case) against him? First Circuit: Conviction affirmed.
  • When confronted with a suicidal armed man locked in an apartment, who would wait for crisis negotiators to show up? Only "a bunch of fucking pussies," says this Nazareth, Penn. officer, who instead knocks and announces, upon which the man immediately shoots himself. Does the dead man's partner have a cause of action under the Americans with Disabilities Act? Third Circuit: Perhaps she does.
  • At sentencing, question arises whether "conspiracy to commit murder" qualifies as a "crime of violence." Fourth Circuit: Congress defined the word "conspiracy" so broadly (without any "overt act" requirement) that we reluctantly conclude it does not. Dissent: Plotting to kill a human being is not a crime of violence? Heaven help us.
  • Standing on the Mexican side of the U.S.–Mexico border, unarmed 15-year-old is shot and killed by a border patrol agent. Can his family sue the agent for damages? Fifth Circuit (en banc): For the second time, no, they cannot.
  • Trial lawyers aren't allowed to strike jury members based solely on race (called a "Batson violation"), and if questioned they have to be ready to provide race-neutral reasons for striking potential jurors. But are courts required to conduct a "comparative juror analysis" and ask why they kept other jurors to whom those same race-neutral reasons apply? Fifth Circuit (en banc): Nope. Dissent: "Today's opinion saps most of the force out of this one tool that has ever resulted in us finding a Batson violation."
  • The Sixth Circuit holds that a criminal defendant (cousin to a notorious criminal lawyer) has a right to appeal a decision that he is incompetent to stand trial, even though the most he can hope to achieve is a ruling that forces him to stand trial.
  • Dearborn Heights, Mich. pizza delivery man with affinity for watching ISIS videos, purchasing firearms draws attention of sympathetic 19-year-old woman on Twitter. He discusses with her his plans to attack a church. Yikes! She's undercover FBI. He pleads guilty to firearms violations. District court: Five years in prison, which includes an upward variance thanks to the church-attacking plans. Sixth Circuit: That's fine, even though the gov't hasn't charged him for said plans.
  • Elkhart, Ind. high school has hosted the "Christmas Spectacular," an annual winter concert, for decades. Parents object. School scrubs New Testament reading, adds Hanukkah and Kwanzaa songs, keeps student-performed Nativity scene. District court: That still violates the Establishment Clause. School goes back to the drawing board; the Spectacular now consists of a variety of songs (religious and non-religious), skits, an 80 percent shorter Nativity scene (ft. mannequins instead of students), and no biblical readings. Seventh Circuit: This version is constitutional. Concurrence: The court "playing the role of producer" in deciding what material can appear in a concert is more government entanglement with religion than the Spectacular is.
  • Guinness World Record holder for most consecutive kicks on a "footbag"—aka, a Hacky Sack—sues Guinness and Wendy's fast food restaurants, claiming a cross promotion they ran with his name and record violated trademark law. Seventh Circuit says you can hack, brah, but you can't state a claim.
  • Larry Flynt has given exposure to lots of individuals, but the Eighth Circuit won't let him expose the medical qualifications of Missouri's execution team members.
  • Are a pro se prisoner's allegations of excessive force "too vague" to support relief when he alleges that two Phoenix police officers "beat the crap out of" him? Ninth Circuit: No.
  • Trinity County, Calif. district attorney hires private law firms to pursue civil-enforcement actions on a contingency-fee basis, giving these firms a direct financial incentive to maximize the penalties imposed. Which, says this Ninth Circuit panel, is A-OK.
  • Historically, Utah Republican Party selected nominees through a caucus system, but state Legislature passes a law saying candidates must also be allowed to qualify by gathering signatures. Tenth Circuit: Which does not unduly burden the party's right of association, as the legislature was just trying to fix an overly-restrictive nominating procedure. Dissent: Procedure determines substance, and the Legislature cannot be allowed to tinker with the substance of whom a party nominates to office.
  • Opa-Locka, Fla. 911 caller reports man trying to get through window of a neighbor's house. Officers respond, see man matching the caller's description, point guns at him, handcuff him, pat him down, reach into his pocket and find a single bullet. Eleventh Circuit: The police were allowed to pat the man down to find a weapon, but they crossed the constitutional line when they reached into his pocket to get the bullet.

Until last night, wide swaths of Louisville, Ky. were off limits to food trucks thanks to a ban on such trucks operating within 150 feet of a restaurant that sold similar food. The rule was so broad that a hot dog vendor could not open up shop near a Mexican restaurant without risking fines or jail time. (They both sell chips.) Restaurants were even known to change their menus to force trucks to move. Well, no more. Yesterday, city officials voted to eliminate the 150-foot rule, which had been the subject of an IJ constitutional challenge. Click here to learn more.

NEXT: Trump Wants a 'Line-Item Veto' on Budget Bills. That Was Ruled Unconstitutional 20 Years Ago.

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  1. “The rule was so broad that a hot vendor could not open up shop near a Mexican restaurant without risking fines or jail time…”

    Was this a typo? What is a ‘hot vendor?’ One who serves hot foods? Or, was it a typo, and you meant to write “hot DOG vendor…” ?

    1. Fixed. Thanks!

  2. RE: “Trial lawyers aren’t allowed to strike jury members based solely on race ….”

    Of course! Striking jury members would violate the law against battery.

    1. Toad:

      Now they can strike them (off) easily on account of their race. They just need a rationale. Anything that gives them plausible deniability that race was the reason.

      1. From The Marvelous Land of Oz (L. Frank Baum’s first sequel to The Wonderful Wizard of Oz):

        “…it is a Joke,” declared the Woggle-Bug; firmly, “and a Joke derived from a play upon words is considered among educated people to be eminently proper.”

        “What does that mean?” enquired the Pumpkinhead, stupidly.

        “It means, my dear friend,” explained the Woggle-Bug, “that our language contains many words having a double meaning; and that to pronounce a joke that allows both meanings of a certain word, proves the joker a person of culture and refinement, who has, moreover, a thorough command of the language.”

        “I don’t believe that,” said Tip, plainly; “anybody can make a pun.”

        “Not so,” rejoined the Woggle-Bug, stiffly. “It requires education of a high order. Are you educated, young sir?”

        “Not especially,” admitted Tip.

        “Then you cannot judge the matter. I myself am Thoroughly Educated, and I say that puns display genius.”

        1. Jokes ought to be funnier than that, i’d say. Otherwise you have these borderline cases causing confusion.

          And pox didn’t deny it’s a joke except to further explain the text you riffed on, highlighting how the ruling can negatively affect minorities, and perhaps making it (somehow) harder to laugh at what you label a punny ‘joke’.

          1. less lean: I appreciate the support — bu I rather liked the Baum text.

  3. In the Larry Flynt case (is he still around?) — isn’t this prior restraint? Wasn’t that settled long ago?

  4. In the case of the Maine doctor who carried out a /very/ long term incestuous relationship with his daughter (well into her adults years, when she was living away from him and was clearly a /very/ willing participant).

    This was a fraud case won at least in part with what strikes me as the prosecution using the equivalent of clickbait to ensnare the jury, with both the district and appeals courts getting caught up in the sex magic. It’s better than porn, because it’s real.

    1. In this particular situation, the realness would make it *worse* than porn.

      1. Eidde: “the realness would make it *worse* than porn.”

        It depends on what will most stimulate the jurors and the courts. In any event, for the prosecutor, it was much, much better.

    2. I don’t see it as clickbait. The relationship goes to plausible motive for the primary crimes: he paid her money and prescribed her drugs to buy her silence about the abuse.

  5. “Standing on the Mexican side of the U.S.?Mexico border, unarmed 15-year-old is shot and killed by a border patrol agent. Can his family sue the agent for damages? Fifth Circuit (en banc): For the second time, no, they cannot.”

    Oh, I see, this is one of those Bivens cases. Or not-Bivens cases, or whatever you call them.

    So since the federal courts can’t hear this suit, I guess there’s nothing for it but to leave the case to be litigated in the state courts?

    Just kidding, that’s just crazy talk.

    1. Too bad the Ninth Amendment is simply an inkblot without any particular meaning, because a naive person might think it includes the right to a judicial remedy for injuries, as provided in various state constitutions:

      But sophisticated legal minds know that this is all foolishness, and getting shot is just one of those things you just need to walk off.

    2. Multiple border agents have been killed or disfigured from rock attacks by illegal immigrants. One agent was killed in Arizona as recently as last year. They are allowed to fight back.

      1. One thing bothers me about your position, and that’s your claim that Jackie Collins is a better novelist than Ernest Hemingway. How could you possibly say such a thing? Hemingway is clearly the better novelist.

        1. Now that we’ve both amused ourselves with irrelevant digressions, I can actually think of a criticism of my position – that Mexican nationals in Mexico aren’t part of “the people” protected by the 9th Amendment. If not, you could say, then Mexican nationals in Mexico have to rely on federal statutes (if any) for their right to sue federal agents, and they have no constitutional right of access to our courts outside of federal statutes.

          But that criticism would actually be relevant to something I said.

  6. The email version this week has some repeats from the previous week; I did not check to see if all were the same. But the email one is vastly different from this posting.

  7. Part of the reason I love these round-ups is to get my “qualfied immunity” hate on. But this one, just nothing – is this because there’s been notable happened on this front (could be, I suppose) or because the selection process has been changed?

  8. If SCOTUS strikes down California’s FACT law, which requires licensed pro-life clinics to post the fact that California will pay for some people’s birth control or abortion, and requires non-licensed pro-life clinics (clinics which have no medical license) to post the fact that they are unlicensed, will the precedent be usable to challenge laws in states like Kansas, which mandate that abortion-providers frighten patients with long-debunked medical bugaboo-lies about imaginary risks and side-effects of abortion?

    1. At the very least it will mean the state can’t force abortionists to provide free advertising for prolife services, any more than it could force Bob’s BBQ to provide free advertising for PETA.

      1. The FACT law does not force free advertising. That is, it doesn’t force posting location or contact info for any abortion-provider.

        But I think I placed this whole set of comments under the wrong article.

        1. More in the nature of a public-service announcement?

          “Bob’s BBQ advises you that there are people willing to instruct you in a vegan lifestyle – feel free to Google them!”

          1. Amazing isn’t it? CA thinks women are so dumb that they wouldn’t know that an actual pregnancy or family planning center isn’t a State approved Planned Parenthood abortion center.

            1. This comment is wrong on too many levels. The issue is with religious based institutions which intentionally disguise themselves as medical providers. One can be intelligent and sophisticated and still be taken in by unscrupulous and dishonest (religious) folks who are out to deceive.

              When you say ‘actual pregnancy center’ are you taking about these locations which are not straightforward about the services they offer?

      2. A more accurate analogy might involve the American Beef Association opening a chain of “Victor’s Vegan Restaurants” (VVR) but not, in fact, employing any cooks or serving food. Instead, VVR counsels any hungry person who enters looking for a vegetarian lunch, on the immorality of killing plants, supporting their position by providing (mostly objectively inaccurate) information on the health dangers as a of a plant-based diet.

        To continue the analogy, a State’s Consumer Protection arm may decide to allow VVR to continue to pursue this strategy because it constitutes protected free speech, but require they post a sign informing potential customers that VVR does not employ any cooks or serve food, with an 800 number providing info on nearby vegetarian restaurants.

        A court may or may not accept that as compelled government speech.

        Hmmm…now I’m hungry. Think I’ll go prepare myself a segment of muscle tissue from an immature castrated bull (I like mine medium-rare).

        1. So

          Victor’s Vegan Restaurants = prolife pregnancy centers

          cooks = abortionists

          food = abortions

          And this all makes you hungry?

          1. But if the analogy is apt, then no special laws are needed to deal with the prolife pregnancy centeres, because they can be prosecuted under general fraud laws for calling themselves abortion clinics – which is what they would have to be doing for your comparison to make sense.

        2. This is what happens when Progressives redefine terms. They have gotten to the point that they think every pregnancy or family planning center should be like the State approved Planned Parenthood Abortion center.

          Why do Californians think women are so dumb as to not know the difference?

          1. You seem dead set on distorting the issues. The proponents of these laws are trying to prevent lying and deception by the institutions whose methods and goals you seem to support. Do you forgive their treachery and dishonesty in the name of some greater good? Do you think victims of fraud and deception deserve to be mislead because had they been “smarter” they wouldn’t have fallen for the lies and deception?

            You don’t seem able to recognize that disguising a religious org as a medical office and posing as medical staff and lying about the risks if abortion is occurring, or wrong. You seem to think it would take a stupid person to fall for these deceptive practices. You seem ignorant of facts, and incapable of understanding a smart person being deceived, all while being very deluded on the facts of the world around you.

            1. Explain in short words why the behavior you describe *isn’t* covered by general fraud laws.

              If it’s covered by general fraud laws, then there would be no need for special laws targeting prolife pregnancy centers.

              Indeed, some exemplary prosecutions in these blue states like California would create a judicial record of how religious hucksters are committing fraud.

              If pregnancy haven’t been prosecuted under general fraud laws, and the authorities need special laws to deal with them, what is the reason? Is it because the authorities in the blue states are in the pocket of Big Religion and refuse to prosecute these clear-cut cases?

              1. if pregnancy *centers*

  9. In the 3rd Circuit case, the recitation of the facts indicated the officer said “this is the way we do things here in Nazareth.” It seems to me that that is enough evidence of a policy or practice to get past a motion to dismiss. I understand it may not rise to intentional discrimination. But it seems to me it might from the point of view of a motion to dismiss. Calling people who go slow on suicidal people “a bunch of fucking pussies” is some evidence one is against mollycoddling them – suggesting e.g. one thinks they should get what they deserve. It might not pass summary judgment following discovery. But taken in the light most favorable to the plaintiffs, it suggests the officer genuinely thought he was representing the attitudes of the town as a whole. And that in turn might have been true.

  10. Why isn’t Trinity County, CA just engaging in 18th century-style British tax farming? Which Americans used to think of as an outrage.

    No idea what the legal rationale should be, but it’s terrible policy. Government functions come in at least two kinds. One is the managerial kind, where you buy paper clips, or something. Another is the sovereign powers kind, where government applies force against the sovereign’s subjects.

    That latter kind should never be farmed out. Punishment, taxation, conscription, stuff like that, the government needs to do itself. When you farm it out, you invariably put accountability at least two removes farther from government?one layer being managers of the ostensible entity which takes over the responsibility government has shed, the next layer being folks who inevitably get hired to apply the force.

    There can be even more layers. That’s all bad?bad for sovereign power, and bad for accountability?and even worse for sovereign legitimacy.

    Not to mention that if you enlarge the scope of sovereign-power dispersal sufficiently, you risk creating among the private entities who get the farmed-out power some would-be private rivals for the People’s sovereignty. If it happens, that’s extra bad.

    1. And here I thought you approved of Progressive innovation like the CFFB, Fed Reserve, etc.

  11. If ‘plotting to kill’ is sitting round a kitchen table talking about killing someone, that doesn’t sound like violence to me, by the plain English meaning of the words. There’s a difference between ‘doing a bad thing’ and violence. This is an easy one for me.

  12. The ruling on the Mexican teenager who was shot by a border agent is ridiculous. F*** Bivens and whatever. The judges found some convenient commas or semicolons or whatever and decided, “Gee, too bad,” not to mention Mesa, the shooter, faced no other sanctions.

    Is this the glorious law?

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