Short Circuit: A Roundup of Recent Federal Court Decisions

Grenades, machine guns, 3D printed guns, a tranquilizer gun, machetes, duct tape, and a long blonde wig.

|The Volokh Conspiracy |

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

Winston-Salem, N.C. surgeon Gajendra Singh wants to charge patients less than half the going rate for MRIs, but North Carolina's "certificate of need" law prevents him from buying a scanner for his imaging center. Head on over to Vox to read about IJ's newest lawsuit.

New on the podcast: Amtrak's self-serving regulations, the Federal Housing Finance Agency's unconstitutional structure, and Auer deference. With special guest Professor Evan Bernick of Georgetown Law.

  • D.C. transit officials reject Catholic Church's proposed advertisement that's to appear on the side of public buses (scroll down for image). Unconstitutional viewpoint discrimination? Probably not, says the D.C. Circuit. Better that officials reject all religious (or antireligious) ads than pick and choose which ones are objectionable.
  • Contributing to an op-ed in a foreign newspaper while under a gag order was "skating close to the line," says the D.C. Circuit, but communicating with potential witnesses while on release awaiting trial "went right past the line." Paul Manafort must indeed remain in jail throughout trial (which is rolling on).
  • In the course of prosecuting and convicting a financial scammer, federal prosecutors commit such egregious discovery abuses that the Fourth Circuit refers the matter to the DOJ's Office of Professional Responsibility. Scammer files a Freedom of Information Act request to find out the results of the investigation. OPR: We will not even acknowledge the existence of the alleged investigation, let alone give you any documents. D.C. Circuit: This isn't some CIA operation; hand them over (and waive the copying fees).
  • In Vermont, candidates for governor and lieutenant governor can opt to take public funding to run their campaigns if they abide by certain restrictions. Among them: They can't raise funds from private donors (namely, political parties), nor can they spend their own money. Plaintiffs: The restrictions violate the First Amendment. Second Circuit: They do not.
  • Sixteen-year-old runaway (who's been abused, forced into prostitution by pimp who goes by "Cut Throat") shoots and kills customer, a Nashville, Tenn. real estate agent. She gets a life sentence. Sixth Circuit: Which could be a problem if there's no possibility of parole. But the state's sentencing laws are not clear on that point, so the Tennessee Supreme Court should weigh in. (The case is the subject of a documentary film.)
  • Contractor excavates rock to fix portion of Dekalb County, Tenn. highway that slid into river. Mine Safety and Health Administration: That is mining, which you can't do without telling us first. For that and some other things, pay a $2,940 fine. Administrative law judge: Yup. Pay the fine. Sixth Circuit: Maybe not. The Constitution demands ALJs be appointed by the president, a court of law, or a department head—and the ALJ here was appointed by another ALJ.
  • Noblesville, Ind. police find defendant, who was displeased with her boyfriend's ex-wife's lawyer, hiding with her son in the lawyer's husband's car and a loaded handgun, binoculars, a plastic bag, latex gloves, a knife, a rubber tourniquet, a syringe that contained a potentially lethal dose of succinylcholine (a paralytic). A search of defendant's car yields ammunition, duct tape, a long blonde wig, two machetes, a tranquilizer gun and darts, alcohol pads, syringes, a "commando" saw, a hammer, a shovel with dirt on it, three license plates, a walking cane, a priest disguise, and a full-headed silicone mask depicting an elderly man's face. Seventh Circuit: No need to reconsider defendant's convictions.
  • Can someone who objects to a class action settlement claim a piece of the plaintiffs' attorneys' fees if his objections improved the settlement? He sure can, says the Seventh Circuit.
  • Missouri corrections officials must, per state law, permit several members of the public to witness executions. Journalist: Which I have not been allowed to do, perhaps because I've written several articles critical of Missouri's execution practices. The state's current policy, whereby officials have unbridled discretion to choose who can serve as witnesses at executions, violates due process. Eighth Circuit: This suit can proceed.
  • Stripped of his ability to prescribe narcotics by the Arkansas State Medical Board, doctor places grenade near then-chairman of the board's vehicle. The explosion seriously injures the then-chairman. By chance, city workers find 98 grenades buried near the doc's home. Police find 76 machine guns in the doc's home. Gov't tries to forfeit the guns. District court denies forfeiture but orders the guns sold at auction because the doctor, now a convicted felon, cannot lawfully possess them. Eighth Circuit: Affirmed. Proceeds from the auction go to the former chairman.
  • Facebook meme depicts various firearms and uses for each. Gun control proponent comments in response, "Which one do I need to shoot up a kindergarten?" Screenshot finds its way to Jackson, Mo. police, who arrest and charge the proponent, leading to several days in custody. (All charges dropped.) Qualified immunity for the officers? No, says the Eighth Circuit, because even minimal investigation would have revealed the comment was not a "true threat."
  • Allegation: Fully aware of the dangers, San Jose, Calif. police force a crowd of Trump supporters to exit a rally directly through a crowd of anti-Trump protestors. Violence ensues. And the constitutional violation here, says the Ninth Circuit, was so obvious that qualified immunity would be inappropriate.
  • District court issues injunction to Maricopa County, Ariz. sheriff's office, under the leadership of Joe Arpaio, to stop racially profiling Latino drivers—which the sheriff's office comprehensively violates while deliberately withholding evidence from the court. So the district court issues another, more comprehensive injunction—which, per the Ninth Circuit, it had every right to do.
  • Los Angeles County officers raid home without a warrant after getting tip that wanted man had been seen nearby. He's not there, so officers proceed to a shack in the backyard where they encounter a pregnant woman and her husband. They shoot both of them. Ninth Circuit (2016): Pay $4 mil to the couple. SCOTUS: Vacated. The Ninth Circuit's excessive force jurisprudence is out of step with the Fourth Amendment. Ninth Circuit (2018): The officers are still liable. (Click here for some longform journalism on the shooting.)
  • Last year, President Trump issued an executive order withholding federal grant money from "sanctuary jurisdictions" where local officials do not share information about individuals' citizenship or immigration status with the feds. Ninth Circuit: Only Congress can pull the funding. But the district court needs to reconsider whether the nationwide injunction it issued is appropriate. Dissent: While San Francisco and Santa Clara, Calif. officials "may be convinced that the Executive Order loosed a fearsome chimera upon them, that does not mean that the courts should take up arms to vanquish the imagined beast by slaying the Executive Order itself."
  • Although the honey badger is well known for not giving a shit about cobras or bees, he is extremely concerned about his intellectual property. Ninth Circuit: A YouTube naturalist's copyright infringement case against a greeting card company should go to a jury.
  • Grand Rapids, Mich. police fingerprint and photograph youth who suspiciously handed a model train engine to another boy. Michigan Supreme Court: Though the city does not require officers to fingerprint and photograph people, it certainly approves of the practice. (Each patrol officer is issued a camera and fingerprinting kit.) So the youth's Fourth Amendment claim against the city should not have been dismissed. (H/t: Beth Wilensky.)
  • State Department: In 2013, we said posting online instructions to 3D print plastic guns is basically like exporting "munitions," which is illegal. But we have changed our mind and will remove the instructions from our banned "munitions" list. Federal judge: No, you won't. At the request of the state of Washington's attorney general, I'm granting a temporary restraining order requiring the State Department to keep the instructions on the export ban list. (Bonus: "Whether code is covered by free speech is actually pretty settled. The answer is yes," says Harvard cyberlaw fellow. Double bonus: Eugene Volokh on three ways to think about free speech and 3D printing. Super bonus: We talked about the case on the podcast in 2016.)

After municipal forfeiture attorneys were caught on tape calling civil forfeiture a "gold mine," New Mexico became one of the first states in the country to abolish civil forfeiture. Hurrah! But Albuquerque officials went right on forfeiting cars, claiming the law doesn't apply at the municipal level. So IJ sued on behalf of a woman who had her vehicle seized even though she did nothing wrong, simply because her son allegedly broke the law. Flashforward to March 2018: A federal judge agreed the program violates state law. And now the most recent coup: The same judge finds the program unconstitutional to boot, setting a precedent with implications for forfeiture programs nationwide.


NEXT: Who Was Right About the Emoluments Clauses? Judge Messitte or President Washington?

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  1. >”Stripped of his ability to prescribe narcotics by the Arkansas State Medical Board, doctor places grenade near then-chairman of the board’s vehicle. The explosion seriously injures the then-chairman. By chance, city workers find 98 grenades buried near the doc’s home. Police find 76 machine guns in the doc’s home. Gov’t tries to forfeit the guns. District court denies forfeiture but orders the guns sold at auction because the doctor, now a convicted felon, cannot lawfully possess them. Eighth Circuit: Affirmed. Proceeds from the auction go to the former chairman.”

    An individual citizen?as opposed to a trust or business which would be allowed to keep the weapons in these circumstances?owned 76 machine guns and five more auto sears? I think I need to switch careers. A recent RDIAS sold for almost $30,000, and registered pre-86 machineguns can fetch $6,000 to $70,000. That those items alone can be worth anywhere between $516,000 to $5,380,000.

    1. AND the dude had a collection of live grenades.

      1. Comparatively cheap. Private citizens can purchase grenades for roughly $400 including the NFA tax.

    2. The individual in question is a doctor, a potentially very lucrative career at the high end, but not quite so much on the median.

      1. If he was running a pill mill (possible, since he’d been stripped of the ability to prescribe opiates), he likely made a lot more than average.

        1. His state board of medicine file is a treasure trove of information. Allegedly, his issues started in 2003 when he overprescribed to chronic pain patients. He was able to keep his license?but not his DEA permit and state prescriber’s authorization?for most of the time up until the bombing, and he was ordered to pay ~$25,000 in fines. The last thing in the file is that he was told he could reapply for authorization in June 2009. However, the bombing happened in February 2009.

          Oddly enough, the only drug listed by name is tramadol. It’s about 10,000 times weaker than fentanyl, but it has some very nasty side effects.

      2. More lucrative than an attorney.

    3. I thought the same thing, but we don’t know when he bought them. Before the blatantly unconstitutional Hughes Amendment, they weren’t that expensive. The value is purely due to the government restriction on new NFA machine guns being added to the registry.

  2. How does a state have standing to challenge export restrictions? More specifically the REMOVAL of an export restriction?

    1. It doesn’t however that doesn’t stop Progressive judges from pushing the Progressive Plantation agenda.

    2. We’ll see when the issue goes to a full decision. This was just a TRO preserving the status quo ante until a full decision is rendered.

  3. ===D.C. transit officials reject Catholic Church’s proposed advertisement that’s to appear on the side of public buses (scroll down for image). Unconstitutional viewpoint discrimination? Probably not, says the D.C. Circuit. Better that officials reject all religious (or antireligious) ads than pick and choose which ones are objectionable.===

    Better to not to reject anything “rather than picking and choosing” because free speech, and religious messages in particular, both because of the First Amendment, when selling ad space on public buses for money because of government voratiousosity.

    It’s amazing how some want to chain religion under the philosophy of “general apllicability laws” when (vampire hissing sound effect) hurting religion is the cool kids’ game, but when religion tries to use such a law, the same vampires suddenly finding a holy light shining on them in the propriety of kicking out religion from a law of general applicability.

    1. I wonder what the Nosferati would think if the Catholic Church wanted to buy a bus ad saying they thought the Little Sisters decision was wrong.

    2. I mean, it’s the First Amendment itself that gives rise to the distinction between content based and viewpoint based.

  4. “This isn’t a CiA operation” was, I assume, a reference to Glomar.

  5. A note about the certificate of need issue –

    A society interested in surviving has to consider its maximum medical need, the day an epidemic, mass accident, terrorist attack, natural disaster, or similar emergency will put a big strain on the community’s resources. It’s a bit like earthquakes. On any given day, even in fault zones, there is almost never an earthquake of any note. Big earthquakes are rare. So a building designed for a normal day will work most of the time, seem perfectly fine, be a lot cheaper, and last until it collapses.

    So here. One of the difficulties of the sort of economics Reason Magazine espouses is it has a great deal of difficulty handling rare, catastrophic events. Competing individual actors pretty much have to plan for the average day and hope for the best. Only an organized individual society can do better. Only an organized society can insure against rare disasters, and force individuals to pay premiums without free rides.

    From this framework, it’s very understandable that a medical practice that staffs only for daily needs with no reserve for rare catastrophes could easily undercut a medical practice that does. And under the assumptions Reason Magazine makes, it ought to.

    But these assumptions aren’t tenable. Classical economics makes many assumptions – every day is an average day, there are no externalities, technology remains constant, etc. – that we now know just ain’t so.

  6. (Cont)

    In sum, a society’s overall survival requires it to survive its worst day, which requires taking into account its maximum need. But profit is maximized by resourcing for an average day; nearly all the time the extra resources would be considered inefficient and prevent competition against providers who staff for the average.

    If certificates of need ensure practices maintain reserves towards the worst day to optimize society’s overall chances of survival rather than optimizing resources to the average day and their individual profit, they are far from irrational.

  7. The Albuquerque fiasco raises a number of other questions. (Starting with, why have the state authorities not charged the city’s minions with theft arising from these seizures!)

    Surely there is a s1982 Federal claim lurking here, in that the car belonged to someone other than the alleged offender. That must apply to all forfeitures where the owner is not the offender.
    On top of that, it is NOW clear that the car was NOT inside the municipal limits when the seizure was made: that is: although the cop(s) *may* have had authority as a LEO to stop the car outside the city (doubtful) to check the driver for a DUI, they had no authority *outside the city* to enforce city ordinances even if he had been observed doing so inside the city limits. I would say that that is clear enough to override qualified immunity.

    There are questions for a law school exam!. Harjo retains ownership throughout. The car having been seized outside the city, what could the city legally do if Harjo just drives her car out of the impound ( with/out splintering an access arm)? The city would probably charge her with “theft” but is it? What interest does the city have? This situation is not a ‘secured interest possessory lien’ nor even a repair lien.

  8. What if Harjo cuts the fence of the lot, retrieves her car and restores things so that there is no visible damage. Is that larceny? Of what ‘interest’ of the city was the city deprived? What could she ‘steal’?

    What if Harjo sees her car being driven by a City attorney (perqs of the job!). He parks for lunch. She uses her keys to recover the car: Is it ‘theft’?

    What if Harjo had started by a) bringing a charge against the city/ minions for larceny or armed robbery, the unlawful deprivation being the seizure outside the city limits and/or b) had sued for damages and replevin on the same basis (together with the claims made in the action re unconstitutionality).
    And what claimed right of re-recovery would the city have, if it attempted to re-seize the car a) inside or b) outside the city.

    And what is the situation wrt third party secured lenders with a valid registered security interest? The effect of the Ordinance surely involves an over-reach by the city: the lender’s interest clearly has priority over the city’s nisi claim to ownership through forfeiture. What if a secured lender sent it’s ‘repo’ man, to get the car in any of these situations?

  9. For question … um, #22, what if Harjo had agreed and paid $500, and agreed under duress, to ‘boot’ the car for 18 months. She then cuts off the boot and sells the car, out of state.

    What claims could the city sustain against her, if any? It does not appear that the City Hearing Officer is a judge, nor even an ALJ. Can one actually be ‘in contempt’ of such entities “orders” (using the term loosely), or is the settlement purely a contract with the city, where the city cannot show ‘damage’ from the removal of the boot (beyond destruction of the boot). For that matter, is the extortion of an ‘agreement’ to ‘boot’ your own car, thus depriving you of its use, an instance of ‘cruel and unusual punishment’? Or is it larceny in that the owner is deprived of a property interest in the car? N.M. Crim Code has a *very* wide definition of ‘property’.

    For further fun, consider what might happen if Harjo lives *outside* the city, and city cops show up with vengeance in their hearts, and without liasing with local or state authorities. Or if Harjo actually lived in Winslow Arizona and got the car into Arizona before the SHTF.

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