Short Circuit: A roundup of recent federal court decisions

Lemurs, scoundrels, and a petulant pedestrian.

|The Volokh Conspiracy |

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

New on the podcast: the checkmate doctrine, the right to pre-indictment counsel, and an Uber antitrust action. Featuring special guest William C. Marra of Cooper & Kirk, who wields words like a blade and also literally owns a sword. Click here for iTunes.

  • For years, a Texas electric utility company and its union feuded over the installation of automated smart meters; the company wanted them; the union didn't, fearing they would put meter-readers out of work. A repairman for the company testifies to state legislators that the smart meters are combustion prone and damaging homes. Company: Which isn't true. You're fired. NLRB: Can't fire him. His testimony was protected union activity. D.C Circuit: Maybe not. We're very deferential to the Board, but even so, the NLRB's reasoning here is "too opaque."
  • Syracuse, N.Y. officials have a policy of cutting off water service to tenants when their landlord fails to pay the water bill. But, says the Second Circuit, there's no rational basis for punishing innocent third parties in the hopes of inducing their derelict landlords to pay.
  • A man and a woman work in neighboring Manhattan buildings but had never met until, "as often happens on crowded New York streets, [their] paths crossed." The start of an unlikely romance? No. She steps on his heel as he's crossing in front of her; they altercate. The woman presses charges; the man gets arrested. Yikes! Surveillance video shows that she, contrary to what she told police, was the initial aggressor, kicking, scratching, hitting, and threatening him, and not acting in self-defense. Second Circuit: So she can pay him $15k (including $10k in punitive damages).
  • Third Circuit: Consensual sexting between teenagers is a crime of moral turpitude that can get you deported. So petitioner, a 49-year-old caught with child porn, is definitely deportable.
  • Sixteen-year-old Elizabeth, N.J. drug gang enforcer ordered 1989 murder, is convicted of racketeering. Third Circuit: His sentence, which is essentially life without parole (he won't be released until he's 72), violates the Eighth Amendment.
  • Low-IQ drifter confesses to killing two gay men three days apart in 1980. He's convicted of first murder, acquitted of the second. Decades later, DNA exculpates him of the second murder, but DNA from the first no longer exists. Fifth Circuit: New trial. Evidence of innocence, like a third party's fingerprints at the scene (which was withheld from the defense) and a detective's propensity for beating suspects, is ample. Dissent: A finding that a convict is actually innocent isn't enough to grant him relief; he still has to prove that his rights were violated and that deference to the state court is out of line.
  • Man buys 144 grenades (from undercover ATF agent) intended for use in Mexico. Man: Since 143 of them were actually duds, I should have been sentenced as if I only bought one. Fifth Circuit (in the inaugural federal opinion by Judge Willett): Nope. The sentencing court properly considered what the man pursued, not what he procured.
  • Allegation: Sixteen-year-old (whose friend shoplifted a jacket) initially flees from Opelousas, La. police, but lays down. An officer slaps him, knees him, cuffs him, and then shoves him against a police car. District court: That's not excessive force. Fifth Circuit: Actually, there's enough evidence of excessive force to let the case move forward.
  • After early release from prison, former Colerain Township, Ohio high school teacher seeks to challenge her conviction for sex offense with a student in federal court, as well as requirement that she register as a sex offender for life. Sixth Circuit: Even though the consequences flowing from her conviction are "'grievous collateral consequences,'" they are not severe restraints on her liberty that would allow us to hear her appeal.
  • FBI agents shoot suspect dead in his home while executing a warrant (to look for child porn). Agents: He ignored repeated orders to drop a gun, and we only shot when we saw him remove it from a holster. Suspect's wife: The agents (who broke my nose when they kicked in the door) didn't identify themselves, never issued any such orders, and caused the volatile situation that they say justifies the shooting. Sixth Circuit (over a dissent): She can't sue.
  • Who steals credit card data? Scoundrels, says Judge Easterbrook of the Seventh Circuit. Moreover, bookstore customers who spent money on credit monitoring services, lost access to their cards briefly, and had to deal with the aggravation of the breach should not have had their class action against the store dismissed.
  • In most of Illinois, school boards are elected. In Chicago, the mayor appoints the board. Plaintiffs: Which deprives Chicago residents of their right to vote, disproportionately affecting blacks and Hispanics. Seventh Circuit: Neither a violation of the Equal Protection Clause or the Voting Rights Act.
  • Tigers and lemurs! Wolves and cougars! A Manchester, Iowa zoo must relinquish its endangered species to a facility that can properly care for them, says the Eighth Circuit. (After all, the zoo only provided a single bowling ball to entertain the tigers, and the lemur cage only contained one log to climb on.) But the activists who sued the zoo under the Endangered Species Act are not entitled to costs and fees, which they are pursuing in order to force the zoo to close altogether—in order to protect the zoo's non-endangered species, which is not what the Act is meant to do. (Though it seems the feds have forced the zoo to close.)
  • Fresno County, Calif. school system pays female math consultant less than male counterparts. Ninth Circuit (2017): The counterparts' salaries at previous jobs were higher than hers, so it's not necessarily unlawful. Ninth Circuit (en banc, authored by the late Judge Reinhardt): Nope. Any consideration of prior pay by employers who use a formula to set salaries (as opposed to individualized negotiations) violates the Equal Pay Act of 1963. Concurrences: Maybe prior pay can be part of the consideration.
  • California suspends the driver's license of a taxpayer who makes it onto the list of the state's top 500 delinquent taxpayers—which may not be the tops for the lucky few who make the list, but which the Ninth Circuit says is perfectly constitutional.
  • Tenth Circuit: Qualified immunity for Hutchinson, Kan. police who pummeled a disarmed and allegedly unresisting (but not yet restrained) suspect and choked him unconscious. But no qualified immunity for pummeling and choking him out a second time—after he was handcuffed and zip-tied.
  • And in en banc news, the Ninth Circuit will not reconsider its denial of qualified immunity to social workers who removed children from their home after their parents took post-bath-time photos of "their cute little butts." Nor will the Eleventh Circuit reconsider its grant of qualified immunity to police who shot a man in the back, killing him, in his home.

Does the First Amendment protect those who wish to privately teach or learn a useful skill? No, says a federal judge for the Eastern District of California. Last year, the Pacific Coast Horseshoeing School (PCHS) had to turn away 26-year-old Esteban Narez because California law prohibits teaching "vocational" skills to most students who lack a high?school diploma—which Esteban never obtained due to a major injury his senior year. The law applies even though PCHS doesn't accept any government loans and Esteban's savings would have covered tuition. Because teaching is speech, the Institute for Justice teamed up with PCHS and Esteban to challenge the law under the First Amendment. IJ will appeal the judge's dismissal up to the Ninth Circuit. Read more about the case here.


NEXT: Los Angeles Spends More Than a Decade Trying to Turn a Vacant Lot Into 'Transit-Oriented Development'

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  1. “FBI agents shoot suspect dead in his home while executing a warrant (to look for child porn). Agents: He ignored repeated orders to drop a gun, and we only shot when we saw him remove it from a holster. Suspect’s wife: The agents (who broke my nose when they kicked in the door) didn’t identify themselves, never issued any such orders, and caused the volatile situation that they say justifies the shooting. Sixth Circuit (over a dissent): She can’t sue.”

    Did we learn nothing from Waco? Why couldn’t he have been arrested when he left the house? Why the gung ho routine for a non-violent crime?

    “California suspends the driver’s license of a taxpayer who makes it onto the list of the state’s top 500 delinquent taxpayers?which may not be the tops for the lucky few who make the list, but which the Ninth Circuit says is perfectly constitutional.”

    The right to freely travel is not a privilege, so suspending your DL for things not pertaining to your conduct behind the wheel is BS.

    1. The FBI will say that they are afraid that evidence will be destroyed in these child porn cases, so they will say that that’s why they conduct the no knock raids. The chances that the average schmo is going to have the capacity to have a sort of deadman’s switch (and it’s possible) is so low, it makes me wonder what the 30 seconds wait before they would bash the door in anyway for a knock and announce warrant would give an average person time to accomplish? Nothing. So what’s the real reason for a no knock raid? Because it’s a high, ultimately, and that shit is why you go into law enforcement, and why it happens more often then it should.

      Can’t disagree about Waco. It was a cult, and Koresh was the charismatic leader. Arresting him while he was filling his gas tank would make the cultists fade away. But the ATF was after the guns in compound too, and wanted to make a splash for their upcoming budget hearings.

      1. A fair point. It’s probably why the FBI agents in this case didn’t conduct a no-knock raid:

        According to defendants’ account, Special Agent Casey Helm shouted something to the effect of, “FBI, search warrant come to the door!,” as he knocked on Evans’s front door. (R. 24, ID 176; R. 25, ID 182; R. 28, ID 201). After waiting “a reasonable amount of time” with no response to the knock and announce, Special Agent Jeffrey Blanton used a “breaching tool” (battering ram) to force open the door. (R. 24, ID 176; R. 28, ID 201). The door did not open fully, and Helm later determined that plaintiff was in the door’s path during the breach. (R. 25, ID 182). Special Agent Gregory Smith pushed the door fully open, and ordered plaintiff to get down on the floor. ( Id. ; R. 27, ID 195; R. 31, ID 219). Helm and Special Agents Lane Rushing and Paul Scown followed closely thereafter. (R. 25, ID 182; R. 27, ID 195; R. 31, ID 219).

        1. Right, and if they had let him leave the house the next day he’d have been sure to wipe his hard drive beforehand.

    2. “Did we learn nothing from Waco?”

      As should be obvious from reading these columns, what the courts are engaged in is “justice theater”. For example, the TSA doesn’t grope our crotches to make us safe, they violate us to make us think they are doing something to keep us safe. Similarly, the court aren’t there to prevent us from being arbitrarily killed or incarcerated, they are there to make us think that we can’t be arbitrarily killed or incarcerated. They aren’t going to actually stop the cops from killing or incarcerating us.

    3. “The right to freely travel is not a privilege, so suspending your DL for things not pertaining to your conduct behind the wheel is BS.”

      People can travel without a license to operate motor vehicles.

      1. Not easily. Not cheaply. Not in the US.

        1. True. And what would your suggestion be, to encourage deadbeat parents to make good on their child support payments? Garnish wages works great…if that person has a job. Debtors’ prison??? Some other approach?

          According to the synopsis; this person was not just a deadbeat, he was one of the worst offenders. Sorry if I can’t muster up a ton of sympathy for him…I have more for the child or children who are struggling due to his failure to pay what he owes.

          1. By doing this you turn a DL into a joke. It doesn’t signify a certain level skill (evidenced by watching the average person drive) and it becomes another tool of social control (they suspend for overdue library books, unpaid parking tickets, etc).

            We don’t suspend other rights for conduct divorced from that right.

            1. Sure we do.

    4. I learned from the 1970s Ken Ballew raid, the Kent State shootings, the 1980s MOVE house bombing, the 1990s Ruby Ridge standoff and Waco raid, siege and gas and tank attack, But don’t count.

      And I am not forgetting. Especially the excuses for “police can shoot first” from the fans of an absolute state justified by a monopoly on force, especially after the shootings of children playing with toy guns when they allow no questions asked later.

  2. When was the last time you saw the verb “altercate”?

    1. I used my string search program on my harddrive to find text files with matches on altercat. I found 45 hits on altercation in 2,599 files in seven folders. I gave up after no hits on altercate
      Use of the verb form, altercate, seems to be rare based on my small sample shewed toward gun law and gun politics. Spot checking my book folder, Orwell and translations of Verne used altercation.

      The commom verb usage appears to be “to have an altercation” rather than “to altercate”.

  3. An Alito clerk from Cooper & Kirk as special guest on a libertarian podcast? Is that a diversity hire (providing the authoritarian conservative perspective)?

    1. Perhaps the clerk has a brain of his own and is not just a holographically controlled puppet?

  4. Regarding the Fresno pay case, where the sad song of past salary anchoring future salary is judged unfair by court.
    What person in their right mind, when it comes to salary negotiation, would fail to inflate their previous salary. Those who negotiate poorly on their own behalf probably should bear the fruit of that failure.

    1. Lying to a private employer about your current salary may be a “good” tactic, but lying to a government institution is probably not.

      There’s probably more snark that serious consideration in your comment, but I don’t think if it is a good policy to pay people more based on their ability to lie (or negotiate) unless the position would benefit from such skills.

    2. “What person in their right mind, when it comes to salary negotiation, would fail to inflate their previous salary.”

      Somebody who wants an offer, and is not risk tolerant?

      1. Someone who understands that being caught in a lie could precipitate termination of desired employment?

        1. In this thread: People who do not see lying as morally wrong discuss its strategic use.

          1. In a site populated largely by lawyers???

        2. Since slary is prohibited from being given to other companies from previous employers… How would this catching work?

          1. Yup. At least in the private sector, the chances of being caught in such a lie are zero. But you do run the risk of pricing yourself out of an offer.

          2. Today (though not when the events of this case transpired) California bans a prospective employer from seeking salary history from anyone, previous employers and applicants alike, but I’m not aware of a prohibition on the previous employer supplying that information.

            1. Nonetheless, no company will supply it. I don’t know if that’s due to some form of legal constraint or something else. As for the California law, if companies can’t ask about it, it might be in your interest to offer it at some point.

              1. Liability paranoia.
                Same thing with ‘references’; HR will not let your past managers say a word. All requests have to go through HR, which will only confirm dates of employment and job title, if the requester has that information to be verified. Volunteer nothing is the motto.
                See, if they give a bad referral, the ex employee will sue them; if the give a good referral, and the new hire does not work out, the new company will sue them. Or at least, that is the excuse the HR ‘professionals’ always gave everywhere I worked or applied.

                1. Paranoia is a little strong. Businesses balance risk against gain all the time, and often when they seem unreasonably risk averse it’s because they don’t see a compensating upside. It isn’t paranoia to avoid a possible loss when there is no chance of gain.

                  Many states recognize that self-interest will lead businesses to not provide references though it is in the public interest that they should, and recognize a qualified privilege to encourage them to do so, but it mostly doesn’t work. Successfully defended lawsuits can still be expensive and distracting, so at best the privilege changes a larger risk versus no gain imbalance into a smaller risk versus no gain imbalance so the decision is no different.

            2. If companies can’t ask previous employers about previous salary of a job seeker, why should not employment interviews just stick to what the prospective company can offer and what the job seeker will accept? With no one tempted to lie or snoop for a better offer?

          3. Since slary is prohibited from being given to other companies from previous employers…

            Where did you get that idea?

  5. I thought we going go through the whole blog without hearing the words qualified immunity. Almost made it.

    1. I had the same thought.

    2. +1

  6. More than the fact that I’m happy about Libby being pardoned (as his prosecution was a disgrace), I’m even happier about the left’s becoming unhinged about it.

    1. Are the left becoming unhinged? The little I saw on cable news did talk about someone who lied and obstructed justice getting a pardon from Trump was a nice example of irony. Lots of people (on conservative and liberal media) speculating that this was a dog-whistle…a signal to those covering for Trump that he’ll save anyone who is loyal (ie, willing to keep covering for him) via a pardon.

      But that hardly equals “unhinged” of course. It’s hard to imagine anyone getting too exercised about a pardon of someone who committed his felonies 15+ years ago. I’m not sayin’ that no one on the left is unhinged about this (given 30 million liberals in this country, I’m sure someone is unhinged about pretty much everything). But that sure does not seem to be the overall reaction…at least, so far. Seems like more of a strawman, to make some sort of point.

      1. Even Mother Jones is like ‘meh.’

        But I figure a lot of folks live in a world populated mostly by hypothetical libs.

      2. Read the comments on the NYTimes and Washington Post articles. Most liberals continue to lie and say he leaked the name of Valerie Plame, even though that has been proven to be false.

        1. Did he lie to the FBI? Did he attempt to obstruct justice?

          Yes, on both counts.

          His pardon is a joke, issued by a President who claims that Comey should be prosecuted for lying, whilst pardoning someone convicted of the same.

          1. No, and no.

          2. How can one obstruct justice if there is no underlying crime, not to mention the special prosecutor already knew who leaked the name.

  7. Agents: He ignored repeated orders to drop a gun, and we only shot when we saw him remove it from a holster.

    Isn’t removing the gun from its holster a necessary first step toward dropping it?

    1. The agents are full of sh*t. If you see a suspect with a holstered gun, you aren’t going to ask him to drop it. You’ll ask him to put his hands up, and then you’ll safely disarm him.

    2. “Isn’t removing the gun from its holster a necessary first step toward dropping it?”

      Perhaps if the holster is attached to your belt. It’s possible that the gentleman here was holding the holstered gun in his hands. From the opinion:

      “When the agents forced an entry into the residence, Evans emerged from the bathroom,
      entered the bedroom, and before agents could do much more than watch, he retrieved a holstered
      .357 magnum revolver. Agents uniformly aver that they yelled at Evans, loudly and repeatedly
      demanding that he drop the gun”

      That kinda sounds like he didn’t have time to attach the holstered gun to his belt, although I grant the point isn’t clear.

      My question in these cases tends to be whether a reasonable, surprised, perhaps just awakened person could in fact verify the intruders identity reliably. If the people in your hallway are wearing the full panoply of SWAT gear, that at least takes some effort for a crook to fake. But I’ve seen videos where LEOs wearing T-shirts, jeans, and scruffily groomed to boot are doing such raids. I get that undercover cops are going to have a certain appearance, but IMHO they shouldn’t be going on raids. Raids, when actually needed, ought to involve police in very obvious uniforms, adhering to the patrol grooming standards, and as many other cues as possible – for example, very prominent flashing red/blue lights, marked patrol cars, etc – that would be difficult for home invaders to fake.

      1. Reading further down in the opinion:

        “Rushing(FBI) saw Evans(suspect), naked and armed with a revolver, move quickly from the adjoining bathroom to the master bedroom.”

        …so the holster probably wasn’t on a belt

        “In his right hand Evans held the gun, which was in a dark-colored holster and pointed at
        his own head.”

        …if true, not evidence of thinking one was defending against intruders

        “Rushing entered the room, took cover by a corner of the bed, and determined that Evans’s gun, being holstered, prevented Evans from accessing the trigger.”

        … if true, good restraint

        “While kneeling on the floor, Scown saw a “glint of metal”; Evans had removed the holster from the gun with his left hand. (R. 31, ID 221). Scown fired his weapon, striking Evans three times.”

        …that sounds probably justified. You can’t tell, in time, whether suicide or homicide is intended.

        n.b. “Plaintiff disputes parts of this narrative.” (mostly about what was said or not said)

        and “Neither plaintiff nor her daughters claimed that they were in the bedroom or near enough to its entrance to observe the agents’ encounter with Evans.”

        You’d think the FBI could afford bodycams. That would settle a lot of the disputes – what if anything was said as an announcement, how long after the announcement before the door was forced, etc.

        1. If only we had some sort of mechanism for resolving factual disputes…

        2. You’d think the FBI could afford bodycams. That would settle a lot of the disputes – what if anything was said as an announcement, how long after the announcement before the door was forced, etc.

          The FBI doesn’t even make audio recordings of interviews they conduct in office settings. (It’s not a resource issue, obviously.)

          1. Yep, they clearly don’t want to have a record of what their agents do.

      2. They aren’t going to roar up with lights on and sirens blaring for a no-knock raid.

        1. You could turn them on when the battering ram hits the door, yes?

          In my experience, the flashing lights from a police car at the curb are visible throughout most of the house (because they are reflecting off stuff in the backyard, the neighbor’s houses, and so on).

          And, sure, home invaders could rig their own lights, but it would tend to attract a lot of attention in the average neighborhood – more attention that I expect most home invaders want.

          1. “You could turn them on when the battering ram hits the door, yes?”

            I’d like to see you walk up to the start of a no-knock raid and try to turn their lights and sirens on for them. It was nice knowing you, I’m sure your funeral will be lovely.

            Yes, they could, but they won’t because they are going for the element of surprise.

    3. Costco shooting. Guy had pistol in holster on belt. Ordered to remove it. Was shot holding the gun in holster by another officer who apparent did not hear the first officer’s order.

  8. Think we need to fix the verb in “Sixteen-year-old (whose friend shoplifted a jacket) initially flees from Opelousas, La. police, but lays down.” Unless he laid something down, it should be “lies”.

  9. You have to acknowledge the last sentence in Judge Willett’s first Fifth Circuit opinion, in the case about the guy who bought the fake hand grenades:

    Maturino’s plan for live grenades fell short, but close counts in horseshoes and hand-grenade cases.

    1. That definitely sounds like Judge Willett!

    2. Or at the beginning:
      “…Maturino’s plan to stockpile live grenades turned out to be a dud…”

    3. Dummy grenades are a common military keepsake or collectible. My sister and I have dummy WWII grenades because our dad used them in New Guinea. For fishing.

      Mexican criminals have bought dummy grenades from US sources for re-manufacture in Mexico to live grenades.

      Mexican criminals have bought semi-auto AR lowers from US Sources and converted them to full-auto or select fire M4 carbines at workshops in Tijuana.

      Buying dummy grenades for smuggling to Mexico is not like buying dummy grenades to sell ay a flea market as war souvenirs.

      Constructive possession of the components to build grenades violates federal NFA and international ITAR regulations. Counts as a “leaner” in hand grenade cases.

  10. The 6th Circuit’s police shooting decision is well within established precedent, which the Supreme Court recently re-upheld. But that precedent creates enough holes to enable a state with good lawyers to create an assassination squad to kill undesirable people with impunity, st least much of the time. Given the combination of ostensible rules that don’t really have to be met under qualified immunity – SWAT teams don’t really have to wear identifying clothing or knock and announce, can operate in the middle of the night, can shoot to kill if they see evidence of resistance – a hit squad can put everything together and, with good discipline and training, can operate in a way that will result in a hit on the target most of the time while operating completely within judicial parameters.

    The court notes that tougher measures are permitted for serious crimes. While simple possession of child pornography is serious, it is not generally violent. (Child pornography has a connection to violence in its production, but this does not mKe a user more likely to be an actual danger to the police.)

    More fundamentally, it is customary for authoritarian governments to trump up charges of serious crimes for their dissidents. Witnesses seem to be readily obtainable for such things. While the constitution has a variety of safeguards pertaining to judicial procedures to prevent this, they can be bypassed if the target doesn’t survive to get to court in the first place.

  11. How, in the name of all that is holy, can a finding that a convict is actually innocent NOT be enough to grant him relief? Thankfully, that was only a dissenting opinion but how could anyone even pretending to be interested in justice articulate such a position?

    1. The dissent is trying to apply the law and not overturn the state court without a lot of clear proof (which is what the standard is).

      However it was the state court that should be ashamed. If the only real proof is a confession to 2 murders and one of those confessions is proven to have been false based on the evidence at trial, the conviction is suspect and the state court should have treated it as such.

  12. >Dissent: A finding that a convict is actually innocent isn’t enough to grant him relief;

    Actual innocence granting relief should be codified into law already (or maybe judges could just make it up like qualified immunity). And any judge who says that it doesn’t today, may be technically correct, but has to realize they are both immoral and among the biggest ***holes on the face of the planet no matter what the law says.

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