Short Circuit: A roundup of recent federal court decisions

A surfeit of text messages, a glut of voicemails, and a mass strip search of choir girls.

|The Volokh Conspiracy |

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

New on the podcast: Special guest Arthur Spitzer of the ACLU of D.C. joins the panel to talk about an American detained in Iraq, jury trials for petty crimes, and banning display of the First and Second Amendments. Click here for iTunes.

  • In 1958, New York banned "gravity knives," which were used by German paratroopers in WWII and are now quite rare. But NYC officials interpret the ban to apply to any knife that can be opened with a flick of the wrist, so tens of thousands of people (many, or perhaps most, of them minorities) have been arrested in recent years for carrying common folding knives, often for work. Second Circuit: The law isn't unconstitutionally vague. The possibility that the law is being selectively enforced is concerning, though; the other branches "may wish to give further attention" to the ban. (Gov. Cuomo vetoed reform in 2016 and 2017.) (We discussed an earlier ruling in the case on the podcast.)
  • Woman gets 163 messages over the course of a year from her cell phone provider, Time Warner, notifying her she has an overdue balance. Yikes! She's not in arrears; the calls are meant for some other customer. She explains the issue, but the calls continue. Did Time Warner violate the Telephone Consumer Protection Act? The Second Circuit says no; Time Warner isn't an autodialer as the statute defines it. The TCPA doesn't apply.
  • Man buys cell phone with reassigned number, receives a text message every time the prior owner of the number gets an email—27,800 of them over 17 months. He is unable to resolve the issue with Yahoo (which provided the text service the prior owner signed up for), so he sues. Did Yahoo violate the Telephone Consumer Protection Act? That sounds super annoying, says the Third Circuit, but Yahoo isn't an autodialer as the statute defines it; the law doesn't apply.
  • Illegal immigrant dinged for pot possession in 2002 in Wake County, N.C. gets no jail time or fines but must pay $100 court fees. Fast forward to 2015, and the feds move to deport him. Does the 2002 incident count as a "conviction" under the relevant statute, thus preventing him from applying to not be deported? No sir, says the Fourth Circuit; to count as a conviction, the statute says there must have been "some form of punishment, penalty, or restraint on the alien's liberty," and court fees don't count. He can ask not to be deported.
  • Allegation: Assistant principal at Houston middle school orders strip search of 22 girls after $50 goes missing from choir class. (The search turns up nothing). School district: Which was unconstitutional, but you can't sue the school district. District court: That's so. The district's failure to provide Fourth Amendment training to staff doesn't amount to deliberate indifference, and even if it did, you can't show such training would have prevented the searches in question. Fifth Circuit: Plaintiffs may be able to show both those things. The case should not have been dismissed.
  • In 2012, New Orleans officials detect code violations at city-owned property. Yikes! They commence enforcement action against a former owner (from whom they'd seized the house in 1998 over unpaid taxes). In 2015, officials sell the house to couple without mentioning the still-ongoing code enforcement proceedings. By happenstance, the couple catches wind, persuade officials to cancel the lien against the house. Yikes! Without warning, the city demolishes the house. The couple complains; officials send them an $11k bill for the demo. Fifth Circuit: Could be the couple have some colorable Fourth, Fifth, and Fourteenth Amendment claims.
  • Informant buys drugs at Grand Rapids, Mich. house from man with history of drug convictions. Police stop another man seen near the house; he has drugs. Several unnamed sources tell police they bought drugs at the house. A search of the home turns up contraband. An open-and-shut case? Not so, says two-thirds of a Sixth Circuit panel. Officers waited eight months after the controlled buy to apply for a search warrant; the application says the other man was seen in the area, not in the house, and the application doesn't give any indication as to the reliability of the unnamed sources. Suppress the evidence.
  • Drug addict is accused of pushing sexagenarian out of parked car, stealing the car in 2006. She dies of head injury. He asks for a lawyer; Shelby Charter Township, Mich. police interrogate him without one. At trial, prosecutors repeatedly characterize his failure to deny the crime during the interrogation as inculpatory. (He's convicted, sentenced to life without parole.) Michigan courts: Everything is on the up-and-up. Sixth Circuit: The Fifth Amendment protects against uncounseled interrogations after right to counsel is invoked, the Fourteenth Amendment means silence isn't inculpatory, and the Sixth Amendment guarantees him a lawyer who would have brought that up at trial. These errors likely influenced the jury. New trial or release him.
  • Judge McKeague of the Sixth Circuit cites Mark Twain's quip that "there are three kinds of falsehood: lies, damnable lies, and statistics," in reinstating guilty verdicts of an Ashland, Ky. cardiologist for health care fraud and making false statements to health care benefit programs. The doc led the nation in billing Medicare for angiograms and apparently performed quite a few unnecessary procedures.
  • Seventh Circuit: The district court should probably appoint counsel to a mentally ill prisoner who alleges Green Bay, Wisc. corrections officers deliberately disregarded his serious risk of suicide. Concurrence: We're getting a little too close to declaring "a presumptive right to counsel in some categories of civil cases."
  • In 2014, Montana man kills grizzly bear without a permit. (The authorities are none the wiser until months later when his ex-wife's boyfriend rats him out.) The authorities: Which is a federal crime. Ninth Circuit: But it's a petty crime (punishable by up to six months and a $25k fine), so the Sixth Amendment right to a jury trial doesn't apply. Still, his conviction is vacated because the trial judge ignored his subjective belief that he was acting in self-defense.
  • Woman is arrested on state charges in 2014 relating to murder. Shortly after, the feds indict her on a separate charge—but don't tell her. She pleads guilty to state charge, gets sentenced in 2016. Nine months pass, and the feds finally unveil the 2014 indictment. (She's duly tried and convicted.) A speedy trial violation? The Tenth Circuit says no. While the feds don't have a good excuse for the nine-month delay, she failed to show how it hurt her at trial, and, since she was serving her state sentence, it's not as though she were in prolonged pretrial custody.
  • Haitian man is convicted in U.S. court for taking American citizen hostage in Haiti. Man: I didn't know she was an American, I didn't have fair notice I could be dragooned to the U.S., and Congress doesn't have the authority to outlaw (this) crime beyond U.S. borders. Eleventh Circuit: Nope. The U.S. and Haiti are parties to an international treaty on hostage taking that puts everyone on notice and gives Congress all the authority it needs. And you needn't know the victim is American for the law to kick in.
  • Did a pair of Florida counties violate federal overtime pay requirements by requiring sheriffs' deputies to arrive at work in their uniforms and failing to pay them for time spent donning and doffing said uniforms and policing accoutrements? The Eleventh Circuit says no.
  • Low-IQ high school dropout posts ISIS videos on Facebook. Surprise! An FBI informant contacts him, befriends him, videorecords him dressing up as an ISIS recruiter, and persuades him to buy a (fake) bomb to detonate on Key West, Fla. beach. Eleventh Circuit: No reason to reconsider his sentence of life without parole. (Please enjoy some longform journalism on the case.)
  • Mesquite, Tex. officers arrest 110-lb. teen tripping on LSD. Officers tell him to calm down, but the teen repeatedly screams, thrashes, and bashes his head against the police cruiser. Officers tase him multiple times. One says, "motherfucker, I'm going to kill you." (Audio here.) The teen dies of head injuries. District court: Can't sue the officers for depriving him of medical help. But a jury might find one officer, who tased the teen in the genitals, used excessive force. (Click here for some longform journalism on the teen's parents' years long effort to get the video that made this case possible.)
  • Man charged with misdemeanor (touching a minor over her jeans) is denied a jury trial; the offense is considered petty, and the Sixth Amendment right to a jury trial applies only to "serious" crimes punishable by more than six months. He's convicted. Man: I'm an immigrant. I will almost certainly be deported. D.C. Court of Appeals: Which is a serious consequence. He gets a jury trial. Dissent: So now noncitizens can have jury trials for petty offenses, but citizens can't. Concurrence: D.C. officials could remedy that by restoring citizens' right to such trials (which was stripped by legislation in 1994).
  • Wisconsin judges shall defer to state agencies' interpretations of state law no longer, says the Wisconsin Supreme Court. The Chevron doctrine, which the state borrowed from federal law and which mandated such deference, violates the state Constitution.
  • California requires some semiautomatic handguns (generally models introduced after 2010) to be stamped with microscopic identifying information. Also, the guns must be equipped to microstamp bullet cartridges when the gun is fired. Plaintiffs: That technology doesn't exist; complying is impossible. California Supreme Court: California law "never requires impossibilities," but the microstamping requirement isn't invalid.

Georgia legislators recently approved a law requiring lactation consultants, who provide breastfeeding advice and support to new mothers, to obtain a license requiring years of college coursework and supervised clinical training. A salutary measure to protect public health and safety? Not at all! The law will serve only to enrich one group of consultants (who lobbied for it and who mostly already meet its requirements) at the expense another group of consultants. There is no evidence the second group provides anything other than excellent care, and indeed a state agency concluded in 2013 that licensing will not benefit the public. The law will create an instant shortage of consultants, particularly in rural, low-income, and minority communities. This week, IJ joined forces with Mary Jackson—who has trained doctors and nurses about lactation but may soon be out of a job—to challenge the law. Faced with a an injunction motion, the state has agreed to a stay of enforcement until the trial court can decide the case. Read more here.


NEXT: Utah Metalworking Company Cancels Expansion Plans Because Tariffs

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  1. Tens of thousands of people have been arrested for carrying “gravity knives” in NYC in recent years? I wouldn’t have expected anywhere near that many.

    1. Go onto any construction site and see how many guys with a folding knife you can find.

      1. I don’t question that tens of thousands of people carry them, I question tens of thousands of arrests.

        I carry one every day.

        1. Well, according to the case Pedro Perez was minding his own business on the subway, they saw the knife (that he used for work) clipped to his pants pocket, and they arrested him. I’m not sure why that can’t happen tens of thousands of times.

          Of course, maybe there’s some sort of difference between you and Pedro Perez.

          1. Did they even try to use the Second Amendment?

            1. If you RTFO, no, it was just a vagueness challenge.

        2. See post by Absaroka|6.29.18 @ 6:30PM below, follow the link to NY Times editorial “New York’s Outdated Knife Law”, 31 May 2016.

          “… thousands of New Yorkers are arrested every year and charged with possessing a “gravity knife,” which the law defines as one that opens with “the force of gravity or the application of centrifugal force.” In other words, with a flick of the wrist. … Between 2000 and 2012, New York City police officers arrested 70,000 people for violating the weapons law; based on a six-month sample reviewed by the Legal Aid Society, which represents indigent defendants, gravity knives account for more than two-thirds of arrests under the law. …”

          2/3 of approx 70,000 is about 47,000; divided by 12 is nearly 4,000 a year.

    2. The Gray Lady reports 70000 between 2000 and 2012 in NYC alone.

      As currently interpreted, the law can cover almost every pocketknife. Additionally, it has become common for knives to come with pocket clips. Clips are a lot handier than having it tangling up with your keys etc. I haven’t been counting closely, but I’d wager a quarter or more of the men you see around here, and maybe 10% of the women, have a clip visible. But clips are also visible to any officer looking for an easy arrest.

      1. And people still accuse leftists of not wanting to keep the prisons full and happy.

        1. NYC’s law enforcement policy isn’t exactly leftist doctrine.

          1. Stop and frisk for handguns carried “illegally,” when no one can get a permit? Sounds pretty leftist to me.

          2. Half of these malcontents consider Guiliani a lefty . . . although mindlessly for Trump has salvaged Guiliani’s reputation a bit among the yahoos.

          3. “NYC’s law enforcement policy isn’t exactly leftist doctrine.”

            In the 1960s during the build up to the 1968 Gun Control Act, annually I would go to the public library, take the Readers Guide to Periodical Litrerature under firearms legislation, and access the previous year’s articles on the subject and take notes. Condemnation of guns, knives, and self-defense was pretty much universal among liberals, progressives, Democrats, especially in magazines and newspapers originating from New York City, the home of Tim Sullivan’s 1911 Sullivan Act.

            In the 1970s support for gun control and condemnation of weapons in general and self-defense in particular was considered the litmus test for liberalism, used by cap-L Liberals to separate true liberals from pretenders.

            1. Wow. An entire movement against civil rights.

  2. NYC officials interpret the ban to apply to any knife that can be opened with a flick of the wrist, so tens of thousands of people (many, or perhaps most, of them minorities) have been arrested in recent years for carrying common folding knives, often for work.

    Not sure I understand. Not all folding knives can be opened “with a flick of the wrist.”

    1. Most folding knives can be opened by a flick of the wrist if you hold it by the blade.

      1. Sure, if you’re Superman. I couldn’t open any of my knives by a flick of the wrist even if I hold them by the blade. Although I will admit I am weaker than the average person due to three decades of typing.

        1. It doesn’t take Superman strength but it may take some skill and often a particular twist of the wrist as you flick the knife down.

          The real problem is that the police have that strength and/or skill and will use it to classify the knife as prohibited whether or not you, the carrier, do. It’s an abusive standard on top of what is a patently unnecessary (and probably unconstitutional) law.

    2. What 12inch said. It’s kind of a skill. I’m not very good at it – too much slow twitch muscle maybe – but I have relatives who can open most any pocketknife you give them, and do so routinely. The technique, as 12inch says, is to pinch the exposed part of the blade and flick your wrist. When the blade stops, the handle is unconstrained and inertia opens it.

      The law, apparently isn’t that the person in question can open it that way, or that most people could open it that way, but that the officer can, with sufficient practice and/or multiple tries, get it to open.

      I’ve heard anecdotes of officers who want to make an arrest passing the knife around amongst officers to see if any of them can work the necessary magic.

  3. According to the linked Daily Beast article, Richard Gonzalez was prosecuted for having this common utility knife, from home depot.

    I wonder if he knows Pedro Perez.

    1. Heh. So he got in trouble because he had a folding utility knife. On the other side of the continent, Seattle prohibits carry of any fixed blades. I’ve heard of officers arresting construction workers because their tool belts contained a non-retractable blade utility knife. I don’t think Seattle is making thousands of these arrests; the context was veteran officers discussing dumb mistakes by rookie officers. But it goes to show how wacky knife laws tend to be.

    2. If the knife in that link, with spring-loaded lock, can be opened by gravity this side of a neutron star…

  4. “Officers tase him multiple times. One says, “motherfucker, I’m going to kill you.” (Audio here.) The teen dies of head injuries.”

    Pretty ghastly that the cops can tell you they’re going to kill you, proceed to kill you, and still get off on the assumption they didn’t intend to kill you.

    1. I would agree if one could show that the officer actually hit him in the head, threw him head first into the car, etc. instead of the “teen high on LSD” banging his own head over and over again.

      1. Well, and then waited a few HOURS to think to get medical attention for the unconscious prisoner, all the while having knowledge of the many severe head blows. Having restrained the boy, preventing him or others from calling paramedics, they are RESPONSIBLE for ensuring medical treatment, even from self-inflicted wounds. And, one might even wonder if being tased in the testicles and other tender bits might have added a few to the self-inflicted total. Simply shameful.

  5. California requires some semiautomatic handguns (generally models introduced after 2010) to be stamped with microscopic identifying information. Also, the guns must be equipped to microstamp bullet cartridges when the gun is fired. Plaintiffs: That technology doesn’t exist; complying is impossible. California Supreme Court: California law “never requires impossibilities,” but the microstamping requirement isn’t invalid.

    The subtext being, the state eventually wants all semi-auto handguns to fall off of the safety registry, creating a de facto ban on semi-auto pistol sales. That’s why they continue to add onerous, and in this case impossible, requirements for new pistols wanting to be included.

    1. Dump your guns and instead throw HIV virus on your enemies instead and California will love you.

      1. Only if you’re a flamer. Ask Scott Weiner.

    2. If you read the decision, especially the summary on page 9, you’ll see why.

      The subtext there exists, but it’s in the legislature, not the Court, which appears to have done the proper thing legally with the suit the NSSF actually gave it, which didn’t even try a Constitutional argument for the Court to address.

      (The decision explicitly says it’s not addressing or making any claims about the possible validity of a Constitutional complaint against the statute. NSSF or someone else should try doing that.)

  6. The drug addict story needs explanation. Of the addict and the owner of the car, which is “he” and which “she”?

    1. Seems quite clear to me, He is the drug addict and she was the owner of the car, since he was the one charged with a crime.

    2. The addict is a “he” and the sexagenarian who dies is a “she”.

      If the “he” was the sexagenarian thrown from the car, and the “she” the drug addict, why would the sexagenarian be prosecuted for murder?

  7. I think the D.C. Court of Appeals is over analyzing the jury trial requirement. The analysis should only have been limited to the statute he was charged under. If the court has to look at secondary and tertiary effects, then even speeding can become a jury trial if it means (for instance) the individual accused may lose their job due to being found guilty (CDL Driver). The end result would be the requirement for a jury trial now requires us to look at the circumstances of every individual been accused.

    1. I think the dissent correctly identified the objective here: Greater rights for illegal immigrants than for actual citizens. You see a lot of that going on in sanctuary jurisdictions.

    2. I don’t see this as problematic. If the standard is whether a crime has “serious consequences,” then it necessarily must take into account effects on that individual. I’d also argue that a person facing a life sentence because of sentencing enhancement for previous convictions has a right to a jury trial where someone else does not.

      1. “If the standard is whether a crime has “serious consequences,””

        That isn’t the standard the actual constitution sets. “ALL” criminal prosecutions, it says. The exception for less serious prosecutions is a judge made exception to the rule the Constitution actually sets out.

        1. I agree. I’m just noting that this decision makes sense in light of the no jury trial for minor crimes exception. That exception itself makes no sense.

      2. If that’s so, then shoplifting for you regular teenager shouldn’t require a jury trial but shoplifting for a bank teller should. As the bank teller may be fired for being a known theif. Again, doesn’t make sense when you start having to look at additional factors.

  8. The D.C. Court of Appeals opinion, which came out a few days before the Supreme Court’s Trump v. Hawaii decision, appears to have been invalidated by it. According to Trump v. Hawaii, aliens’ presence in the United States is a privilege, not a right, subject to the United States’ sovereign discretion. Since it is not a right at all, if can’t possibly be a substantial right, and therefore isn’t relevant to the decision whether an offense is petty.

    Otherwise there would seem to be no end to the consequences. Should people who might lose their jobs if they were convicted of a misdemeanor be entitled to a jury trial? What about becoming ineligible for a co-op apartment? Getting cut out of a rich relative’s will and losing a substantial inherentance?

    In general, it would seem the rich would be more likely to have substance to lose from the collateral consequences of a conviction than the poor, and hence if these sorts of consequences with respect to third parties can be considered, the rich would be more likely to be entitled jury trials than the poor.

  9. A problem with the 2nd Circuit gravity knife decision:

    Suppose that instead of using a “wrist flick” test, the NYPD had instead adopted a “coin flip” test. Upon seeing a questionable knife, the police officer would flip a coin. If it comes up heads, the knife is an illegal gravity knife and the bearer gets arrested. If it comes up tails, the knife is legal with respect to that day and that policeman.

    It is clear that under the 2nd circuit’s reasoning such a test could not be challenged for vagueness. The decision makes clear that such a test cannot be challenged on its face. The problem is that a coin-flip test will corectly identify a true gravity knife some of the time (half the time, to be precise). And a test can only be subjected to facial challenge, the 2nd circuit held, if it fails in all its application, and never correctly identifies a true gravity knife. So facial challenge is out. A test that correctly identifies a true gravity knife half the time is facially valid by the 2nd circuit’s standard.

    So that leaves an as applied challenge. But an as applied challenge is similarly out. An as applied challenge can only be made if it is consistently invalid as applied to plaintiffs particular situation. But here again, a coin flip will give the correct result for a plaintiff’s specific situation half the time. This insulates it, according to the 2nd circuit’s logic, from an as applied challenge.

  10. (Cont)

    So why even bother using a wrist flick test? And for that matter, why bother with this business of conducting investigations, collecting evidence, and doing tests that pretend to have something to do with the question at hand? The 2nd Circuit makes clear that all this is so totally unnecessary. And it’s very inefficient. If the police simply flipped coins, or read tea leaves, or determined if the suspect weighed the same as a duck to address every criminal investigation need, their tests would also be insulated from challenge, just as insulated as the wrist flick test is. And they might be every bit as reliable and give equally consistent results upon repetition.

  11. ===gets no jail time or fines but must pay $100 court fees. Fast forward to 2015, and the feds move to deport him. Does the 2002 incident count as a “conviction” under the relevant statute===

    Government ladeling on punishment while claiming it is not finally comes back to bite them in the butt-tocks.

  12. ===Without warning, the city demolishes the house. The couple complains; officials send them an $11k bill for the demo.===
    Detroit had a case some years back where a woman bought such a house from the city at auction for $5000. The city then immediately condemned it. She complained they didn’t warn of this when selling the house.

    They’re the government. Their left hand need not know, or care, what their right hand is doing.

  13. I arrested a guy once (actually, a remand to custody inside the courtroom before the day of metal detectors at the door) who had a huge folding Buck knife in his back pocket. While handcuffing him I noticed that his fingers were so calloused from years of rough concrete work that his fingernails were recessed and in hiding. They must have needed constant attention for ingrown care.

    He replied it was easy. He grasped the blade end firmly between his front teeth. I could barely open the knife with my fingers, the spring was so strong.

    All of which reminded me of a judge in that court who liked to quote Oliver Wendel Holmes on the legal definition of intent. “Even a dog knows the difference between being stumbled over and being kicked,” his honor would intone from on high.

    Except in my job dealing more directly dealing with criminals I knew there is an important caveat to that. A lot of dogs just don’t care. All they want is a piece of your leg. Give them any excuse. . .

  14. Man charged with misdemeanor (touching a minor over her jeans) is denied a jury trial; the offense is considered petty, and the Sixth Amendment right to a jury trial applies only to “serious” crimes punishable by more than six months. He’s convicted. Man: I’m an immigrant. I will almost certainly be deported. D.C. Court of Appeals: Which is a serious consequence.

    Deportation is a serious consequence, HOWEVER, deportation is not a judicial “punishment” and so it should not even be considered as a factor.

    It might seem like a de facto punishment but think about this – If I’m squatting in a luxurious mansion and I’m forced to leave, is that a punishment? Does that mean that Central Americans, Nigerians, etc are being “punished” for some crime by not being allowed to live in the United States?

  15. (Please enjoy some longform journalism on the case.)

    Yes, I enjoyed reading about a man’s life being destroyed so an informer could score points with the FBI. Guess I lack a lawyer’s sense of humor.

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