Short Circuit: A roundup of recent federal court decisions

Border searches, violent career offenders, and the lost keepsakes of Simón Bolívar.

|The Volokh Conspiracy |

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

Friends, over at the SCOTUS101 podcast, Sheldon Gilbert, the director of IJ's Center for Judicial Engagement, talks Slaughterhouse, in which the Supreme Court gutted the newly ratified Privileges or Immunities Clause of the Fourteenth Amendment—to the country's great and continued detriment. Click here to listen.

  • Dual U.S. –Saudi citizen captured on battlefield in Syria denies he's an ISIS combatant. The U.S. military detains him without charging him with a crime or bringing him before a neutral magistrate (for seven months and counting). ACLU: Either prosecute or release him. Gov't: Instead, we'll transfer him to Saudi Arabia. D.C. Circuit (over a dissent): No transfer. (More on the case from Lawfare.)
  • After lengthy, complicated process, the feds grant Irish airline Norwegian Air a permit to operate in the U.S. (We have treaty obligations with Europe to allow such flights.) U.S. and European airline employees' unions sue the feds: Norwegian Air doesn't pay its staff enough; it's not in the public interest to allow the low-cost airline to operate. D.C. Circuit: Case dismissed. Judge Sentelle, concurring: And, but for precedent with which I disagree, should never have been allowed in court.
  • Securities trader is convicted of fraud for lying to customers about price he paid for residential mortgage-backed securities. Trader: That was standard industry practice; buyers of such securities are sophisticated enough to not be misled by such tactics. Second Circuit (2015): Man's got a point. New trial. (In 2017, he's acquitted on nine of 10 counts.) Second Circuit (2018): New trial on the one remaining charge—and let him out of prison. The district court erred in allowing a bond buyer's testimony that he (erroneously and unfoundedly) believed defendant was his agent.
  • Allegation: Two guards at Coxsackie, N.Y. prison tell inmate that unless he lies about a minor accident (so as to falsely inculpate another guard), they'll get him confined to his cell 23 hours a day. The inmate declines; he's so confined for six months. Second Circuit: Refusing to snitch is protected First Amendment conduct. But this is the first time we've held as much, so qualified immunity for the two guards.
  • Arrestee suffers fatal neck injury in Baltimore police van, sparking civil unrest. Several officers are indicted, put on trial for manslaughter, second-degree murder—but no convictions. Can they sue the prosecutor for malicious prosecution or defamation? No, says the Fourth Circuit; the prosecutor is entitled to absolute and statutory immunity.
  • Before the gov't can undertake a forensic search of a smartphone seized at the border, officers must have individualized suspicion of wrongdoing, says the Fourth Circuit. But because that's a new rule, we won't apply it to suppress an 896-page report on the contents of this international arms smuggler's phone. Concurrence: We shouldn't be announcing a new rule. Defendant got caught with contraband in his suitcases, so officers plainly had reasonable suspicion (assuming they even needed it) to keep and search his phone for a month.
  • Widow: I am owed benefits under the federal Black Lung Benefits Act. Insurer: Your husband worked as an electrician in an above-ground strip mine, which is not "substantially similar" to working in an underground coal mine; the Act doesn't cover you. Sixth Circuit: The Dep't of Labor says she gets benefits, and we defer to them. Judge Kethledge, concurring: She is owed benefits, but not just because the agency says so. "I see no reason in this case to hand off the judicial power to an executive agency." Judges are capable of figuring out what "substantially similar" means.
  • ACLU: Blackford County, Ind. man would like to vote at his neighborhood polling station, a school, but he's barred from entering owing to his 1993 conviction for a sex offense involving a child. Unconstitutional? Seventh Circuit: He can vote at the courthouse, at a civic center, or by absentee ballot. And anyway, Indiana is under no obligation to provide even those options because felons don't have a constitutional right to vote.
  • Man convicted of pandering in state and federal court (for the same conduct) serves his state sentence in both state and federal prisons. He gets paroled, but the feds take custody and don't count his previous time (even spent in federal prison) toward his federal sentence. Seventh Circuit: That doesn't sound right. And even though he's since been released, the case isn't moot; a ruling in his favor could mean a shorter term of supervised release.
  • Allegation: Maplewood, Mo. officials trap low-income motorists in a repeated cycle of arrests and jailing over traffic violations by requiring them to pay fines and bonds irrespective of their ability to pay. A Fourteenth Amendment violation? The district court did not err, says the Eighth Circuit, in allowing the case to proceed.
  • Navy Lieutenant dies of complications from "low-risk" childbirth in Bremerton, Wash. naval hospital. Negligence? We don't like it, says the Ninth Circuit, but the gov't is immune from suit where a service member's injuries are "incident to military service." The Supreme Court should carve out an exception for injuries such as this.
  • Maricopa County, Ariz.: We shouldn't be on the hook for the misdeeds of former Sheriff Joe Arpaio (who was convicted—and then pardoned by the President—of criminal contempt for failing to comply with court order to cease pretextual stops of Latino drivers) and the millions of dollars it will cost to comply with court order meant to end discriminatory policing. Ninth Circuit: You are on the hook.
  • Legal immigrant convicted of two nonviolent burglaries faces deportation under statute requiring removal for violent crimes. Supreme Court: The statute is unconstitutionally vague; it requires judges to speculate as to whether the average burglary is violent, rather than consider the specific burglaries in the case. Tenth Circuit: In light of that, a separate, identically worded statute that imposes longer prison sentences for using a dangerous device during the commission of a violent crime is also unconstitutional. Defendant's 35-year sentence for firebombing a Las Cruces, N.M. tattoo parlor may be too long.
  • Allegation: Over 10 years, Delaware County, Okla. social workers receive at least 17 reports that couple (once named "adoptive parents" of the year by the state) is abusing children. (Both parents take a plea and receive life sentences (though they won't have to serve most of the time).) Can the children sue 18 social workers? For the most part, no, says the Tenth Circuit. But in the several instances where they link an individual social worker to an incident (such as the claim that two social workers tipped off the couple to impending home visits), the suit survives qualified immunity.
  • Allegation: Orlando, Fla. man inherits massive trove of keepsakes, correspondence of Simón Bolívar, who helped six South American countries secure independence from Spain. In 2007, Venezuelan officials meet with him in Orlando, take collection back to Venezuela for further inspection, promising to either buy or return it. They do neither; the collection remains in Venezuela. Eleventh Circuit: Venezuela is not entitled to sovereign immunity; the man can sue.
  • Boca Raton, Fla. officials adopt new ordinance, approve zoning variances to allow construction of synagogue in neighborhood zoned for single family use. Neighbors: Which violates the Establishment Clause. Eleventh Circuit: Since a state court has killed the project (because the synagogue was to include a museum, which is forbidden), the case is moot.

Lisa and Kevin Howard and Jessica and Chris Hadraba own a cherry orchard and farm store in Gibraltar, Wisconsin, on the picturesque Door Peninsula, a vacation spot that attracts millions of people each year. Last year, the quartet added a food truck to the family business. But soon after, Gibraltar officials forced them to shut down (even though they'd obtained a county zoning permit and state mobile-restaurant license) by passing an ordinance banning all mobile vending. Outrageous! This week, the town board's chairman, who is not coincidentally a restaurant owner, got served with notice that the ordinance violates Wisconsin's constitution—and so the board must repeal the ordinance or face a lawsuit. Click here to learn more.


NEXT: Adam Parfrey, RIP

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  1. If Maricopa County citizens don’t want to be on the hook for bills run up by Arpaio they shouldn’t have kept electing the SOB.

    They wanted an authoritarian out-of-control sheriff and that’s what they got. Time to pay the tab.

    1. What tab? The president pardoned him.

      1. The pardon only has the effect of eliminating Arpaio’s punishment for contempt of court. It has no effect on the underlying civil case, in which the court ruled that Arapaio’s conduct as sheriff was unconstitutional.

    2. Yea, and all those refugees from Venezuela should stay in their home country too. Time to pay up (via a ruined economy and rampant inflation) for Chavez and Maduro and their socialist policies.

      (channeling my inner Sarcasto)

      1. What percentage of Venezuelans are leaving?

        And nothing keeps the Maricopans from leaving either though, in keeping with another thread, it may be that they have proven themselves such idiots that they shouldn’t be allowed to vote any more.

        1. According to the CIA factbook as of 2016, “more than 46,000” were accepted into the US as refugees. I’m sure more are here illegally, just as I’m sure it has accelerated since 2016.

          By extension of your logic, every Venezuelan coming to America, shouldn’t be allowed the vote either. Nor anybody that moved out of bankrupt Detroit or Illinois.

          Believe it or not, I agree in principal. Illinois ran itself into the ground electing corrupt Chicago liberals. But how do we decide who is just a regular joe whose not responsible, or who voted against criminals like Rod Blagojevich, once they arrive in their new state?

          Given that one group is citizens, one isn’t, I’m inclined to say that we don’t give the vote to refugees.

          1. As for your specific question about who wants to leave Venezuela, I saw this news report as well from 2016:

            “According to a Datin Corp poll released last week, 57 percent of Venezuelan registered voters want to leave the country. This means that approximately 12 million people want out, almost half of the 30 million who populate the country if we take out children and teens.

            In a similar survey conducted in 2015, Datin Corp found out that 49 percent of Venezuelans wanted to move overseas.”

          2. Well, we actually don’t give the vote to refugees.

            It does take a while to become a citizen.

            Besides, what I’m really talking about is Maricopans paying the tab. The voting business was snark, which you quite reasonably called me on.

            I’d say the Venezuelans are paying plenty for their decisions. You seem to agree. Do you disagree about Maricopa?

            1. We will take it off the table the feds owe Arizona for hosting foreign prisoners. The repayment rate for the federal government not enforcing immigration laws is not enough. Maricopa spends far more on illegal immigrants in jail than the civil suits from apraio.

              1. Except the issue at hand is profiling Latinos…?

            2. You are correct, Maricopa is going to have to pay I suppose.

  2. In the Coxsackie case, while I see that the guards might not have been on notice that inmates have a right not to snitch, surely they were on notice that inmates cannot be required to give false testimony. I don’t see how they can be entitled to qualified immunity.

    1. I don’t either, and I don’t much care whether the guards were put “on notice” by some court. Thats a ludicrous defense – legalism gone insane.

      Did the guards really think what they were doing was OK?

      1. Compare qualified immunity with the responsible corporate officer doctrine.

      2. In the next case, it will be determined by the court that the guards were not on notice that it was illegal to require inmates to give false testimony concerning soap rations on the third Tuesday in a month.

        They just keep distinguishing the issues finer and finer to deny that the government officers would have known the conduct was improper.

    2. “I don’t see how they can be entitled to qualified immunity.”

      This is due to the judicial cannon known as FYTGW.

      1. 12 inch
        ???? FYTGW??? Google was no help.

        1. Fuck you the government wins.

    3. No, no, you see – that particular court has never rules that two prison guards cannot retaliate against a prisoner for failing to bear false witness by imposing 23 hours a day of solitary confinement.

      There may have been previous cases with three guards, or 22 hours a day of solitary… but never two guards, in a prison, for false witness, and 23 hours of solitary.

      So obviously, this is the right ruling.


      1. While I agree that the decision is ridiculous, at least the court went in the right order this time. Rather that just deciding that FYTGW because the right isn’t clearly established, it first specifically held that inmates have a right to refuse to lie to the government (a phrase that I really can’t believe I have to write) as well as a right to refuse to be a snitch. So at least the next time a guard in the Second Circuit tries to force a prisoner to lie, there will be a clearly established right to refuse.

    4. Exactly. Whether or not the court had previously ruled on a similar issue, certain conduct that no reasonable person could think is allowed (even if he can’t pinpoint what right it violates) should never be entitled to qualified immunity.

    5. I enjoy these posts, but these summaries can be tendentious and misleading, and when they seem hard to believe, it’s worth reading the actual opinion. Here, there’s no allegation that the guards tried to force the inmate to “lie” in the sense of giving information that the guards knew to be false. Rather, the allegation is that the guards wanted the inmate to be an informant, and refused to believe him when he said that he didn’t have any relevant information to give them.

      1. Well, it would be a “lie” in the sense that the inmate would be saying something he knew wasn’t true, but you’re right that it wasn’t really a separate incident, it was it was their suggestion of a topic he could inform about. As an aside, the fact that two guards would assume that a reported accident was likely abuse by a third guard suggests something about everyday life in that institution.

        I wouldn’t pin the mischaracterization on the summary though, when the opinion itself is to blame:

        […] claims related to plaintiff Mark Burns’s placement in restricted custody after he refused (i) to serve as a prison informant, or (ii) to provide false information regarding an incident within the facility.

  3. Refusing to snitch — so they get QI because they properly assumed the law at the time allowed them to heap punishment on a prisoner for declining to verbaly participate in their crime?

    1. Not exactly. This was a ?1983 lawsuit, so the court wasn’t asking the broad question of whether the guards’ behavior was unlawful. It was asking the narrower question of whether it was clearly established that forcing a prisoner to snitch or to lie violates his First Amendment rights.

  4. It does seem that if the police can’t be expected to know you can’t muscle a person into giving false testimony without a court specifically informing them, they can’t really be expected to know anything. One is reminded of the 7th circuit case holding that even police can be expected to know than an actual police officer cannot be arrested for impersonating a police officer, well, because he IS one, even if no Court has ever so held. But expecting police to have basic common sense seems to be out of touch with current precedent.

  5. It does seem that if the police can’t be expected to know you can’t muscle a person into giving false testimony without a court specifically informing them, they can’t really be expected to know anything. One is reminded of the 7th circuit case holding that even police can be expected to know than an actual police officer cannot be arrested for impersonating a police officer, well, because he IS one, even if no Court has ever so held. But expecting police to have basic common sense seems to be out of touch with current precedent.

    1. I know all this comes from terrible SCOTUS decisions and all that, and we don’t expect common sense from law enforcement, but why can’t we expect common sense from the 2nd circuit? (don’t bother telling me)

      No qualified immunity for well-defined, illegal behavior. Rule that way and let the authorities spend all their civil forfeiture proceeds appealing to SCOTUS — and maybe getting the original decisions reversed,

      1. No qualified immunity for well-defined, illegal behavior.

        That is, in fact, how the law of qualified immunity works.

      2. It’s not, because knowing behavior is illegal is somehow enough, you have to know it’s unconstitutional.

  6. The Doe v. Mattis decision seems rather far reaching. Among other things it held that Congress has not authorized the use of military force against ISIS and because of this, special executive war powers over citizens do not apply to the ISIS campaign.

    This holding, which vindicates Professor Somin and other Conspirators’ positions, may well be correct, but it seemed rather summary. The court reached its holding in a few sentences. I would have expected a court to provide considerably more justification for such a far-reaching decision and address various obvious counteratguments, from a claim previous congressional authorizations cover this situation to a claim the courts must recognize a de facto war. Did the Afministration, perhaps expecting to win easily on this issue, not bother to make them?

    It seems to me to be correct that to transfer a citizen “enemy combatant” to another state, except for a crime committed in that state’s territory, there must be both a legally authorized state of hostilities, and a hearing to enable the citizen to dispute whether he is in fact an enemy combatant, neither of which occurred here.

  7. Orlando man gets to sue Venezuela. Talk about a Pyrrhic victory.

  8. In the 9th circuit, Naval Lieutenant case, I’m trying to figure out how complications during a state side pregnancy are incidental to military service. It was incidental to the pregnancy, but not the military service as much as I can tell.

    1. BillyG: “complications during a state side pregnancy …”

      I’m thinking it must be that she was treated at Naval hospitals as an active duty lieutenant. Because I don’t think her military service caused her to get pregnant. I know I’m going out on a limb on the second part.

      1. Did you miss the military rape outcry under Obama?

      2. Having been mistreated, in a relatively small way that I was powerless against at a Navy hospital myself, I can empathize somewhat.

        But it would cause many more problems if military disciple was subject to review of civilian courts, because the exemptions for a case like this would not end there. And I say this as someone whose military service had a Catch-22 aspect to it more than once.

  9. I think it was serially dumb for a guy to consent to a kleptocratic nation like Venezuela to take his stuff.

    1. Perhaps they engaged in “aggressive negotiations.”

    2. The Simpsons nailed this scene a couple of decades ago

  10. Coxackie case: Suborning purjury is a crime. Two or more people planning to commit a crime is conspiracy. Why aren’t these guards on the other side of the bars?

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