Short Circuit: A Roundup of Recent Federal Court Decisions

MacGyver, Rumpelstiltskin, and a whole bunch of attorneys behaving badly.

|The Volokh Conspiracy |

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

The Texas gov't lied to Patricia Mosley. She followed the instructions of an administrative law judge and appealed an adverse decision in court (instead of before an administrative agency). But Texas officials say the judge and the regulation the judge relied upon (which had been on the books for 14 years) were wrong—and that Patricia Mosley should have known. An appeals court agreed and tossed her case. We say the Texas Supreme Court should reconsider. Read more here.

  • "Rumpelstiltskin could spin straw into gold. Rumpelstiltskin, Inc. thought it could do the same for garbage, spinning it into tax credits. The Commissioner of the Internal Revenue Service disagreed. So did the Tax Court. So do we." So writes Chief Judge Garland of the D.C. Circuit.
  • In 2008, the Supreme Court held that Gitmo detainees are entitled to meaningful judicial review of the legality of their detention, but since then the D.C. Circuit has rejected every habeas petition it has considered on the merits. So we should probably take one of these petitions en banc, writes Judge Tatel, to examine whether we're adhering to the Supreme Court's instructions.
  • Husband (American) and wife (Panamanian) have seven kids. Yikes! Wife has affair (with another Panamanian) resulting in eighth child; the child is born in Panama and is raised as part of the family (which relocates to the U.S.). Is the father the American, in which case the now-former child is an American, or is the father the Panamanian, in which case the now-former child is not an American and can be deported (for a pair of drug convictions)? Second Circuit: Nothing in the statute says you need to be a biological parent to be a parent; American citizenship was acquired at birth, so no deporting him. Concurrence: Moreover, the gov't detaining him for almost two years while we sorted this out on grounds that require "no grand innovation of law" is troubling.
  • Police locate car that had been carjacked at gunpoint; the driver leads them on extended high-speed chase through Newark, N.J. He crashes. Driver: I don't deny threatening to kill the officers, but they never shouted any commands at me; they just opened fire. (He's struck at least 16 times. He lives. He didn't have a gun.) Third Circuit: Qualified immunity.
  • Four homeless alcoholics challenge a law making it a crime for a "habitual drunkard" to possess an alcoholic beverage. Fourth Circuit: Although the government cannot punish people for what they are, as opposed to what they do, this is not such a case. The state labels people "habitual drunkards" in civil proceedings, not criminal ones, and the criminal prohibition focuses on the conduct of possessing a beverage. It is irrelevant that the prohibited conduct is compelled by addiction, as otherwise much of our criminal law would be called into question. Concurrence: The majority's conclusion is compelled by circuit precedent, but in my view this statute impermissibly criminalizes otherwise legal conduct by persons suffering from a disease.
  • Allegation: University of South Carolina student group obtains pre-approval from school officials to hold event and then displays posters with words and ideas that caused controversies on other campuses. Other students complain. (One complainant's friend was "violently triggered" by a swastika and feels unsafe on campus.) Officials summon the group to a 45-minute meeting, where it must "answer for and explain each poster that was subject to a complaint." No further action is taken. Fourth Circuit: No First Amendment problem here.
  • Former Marine shoots three Baton Rouge, La. officers dead before being killed himself. An officer grievously injured in the shooting sues Black Lives Matter activists for inciting the shooter. District court: "Plaintiff's Counsel has utterly failed to state a plausible claim." Fifth Circuit: Affirmed. (More on the shooting here.)
  • Texas law requires public universities to permit individuals with concealed carry permits to carry concealed handguns on campus, and the University of Texas at Austin bars professors from barring handguns from their classrooms. Three professors: Which violates the First, Second, and Fourteenth Amendments. Fifth Circuit: It does not.
  • Supreme Court: Life sentences for juveniles violate the Eighth Amendment. Michigan: Okay, we'll resentence all these prisoners, but we're taking away the good time credits that they earned while serving their life sentences. Sixth Circuit: Which has the effect of increasing the punishment attached to their convictions, and so violates the Ex Post Facto Clause.
  • Allegation: Woman is arrested for disregarding jury duty summons, though as a noncitizen she is ineligible to serve. She pulls away from a Lake County, Ill. officer as he handcuffs her and gets charged with resisting arrest as well. She's re-arrested for failing to appear in court on that charge. She declines food, water. Jail staff know immediately she has mental health needs but do not summon medical help. Rather, doctors see her on their routine scheduled visits the following week; she's diagnosed as psychotic, but no further steps are taken. She's transferred to the hospital two weeks into the hunger strike; it's too late; she dies. Seventh Circuit: Some claims against the medical staff should not have been dismissed, but no suing jail officials.
  • A poop emoji in a published opinion? What the deuce? The Seventh Circuit upholds sanctions against Cook County, Ill. corrections officer who threatened (via Facebook post) fellow officers not to testify against her in her discrimination suit against the county—and Judge Sykes reprints the threat word for emoji.
  • Three women driving in Chicago get embroiled in road rage melee with off-duty cop. (Women arrested, charged, and acquitted of battery of a police officer.) One required surgery from the incident. Jury: Now-former cop is liable for $260k for excessive force. District court: Strike that. Plaintiffs' attorneys' contumacious conduct at trial (for instance, repeatedly questioning witnesses about inadmissible topics and leaking info to the media (and then lying about it to the judge)) and plaintiffs' own bad faith conduct merit dismissal of the claim. Seventh Circuit: Affirmed. (Click here for a news story.)
  • Debt collector files lawsuit against debtor on behalf of creditor in appropriate court. While the lawsuit pends, the Seventh Circuit decides a different court is appropriate for such suits and makes the change retroactive. The debtor then sues the creditor and debt collector for filing in the wrong venue, settling with the creditor but winning $200 in damages plus $70k in attorney's fees from the debt collector. Seventh Circuit: Reversed. The settlement moots the debtor's claim against the debt collector.
  • Ten Sleep, Wyo. cattle rancher tells his investment broker to close an account. Instead, the broker does some unauthorized trading and loses $2 mil. The broker obfuscates, then resigns from his firm; the firm seeks to recover the $2 mil from the rancher, first from the rancher's other account at the firm (which has a positive balance less than $2 mil) and then sues for the rest. District court: The rancher got defrauded. But he didn't pay sufficiently close attention to his account statements, so he gets reduced damages. Seventh Circuit: He gets full damages. Fraud victims are expected to take reasonable steps only after they become aware of the fraud; they are not required to take precautions that, with the benefit of hindsight, would have avoided the fraud or ended it sooner.
  • If you live in Naperville, Ill. and want electricity, you have no choice but to buy it from the city, which has smart meters that collect energy consumption data every 15 minutes and store them for up to three years. Concerned residents: The data reveal when people are home or away, their sleeping routines, and more. Seventh Circuit: No Fourth Amendment problem here. The gov't has a significant interest in providing effective utility services, and the risk of the data being used for law enforcement purposes is minimal.
  • Cameron, Mo. prison officers put Ecclesiastical Denzel Washington, an asthmatic inmate, in cell with cigarette smoker, causing asthma attacks. (A rule against smoking in cells is not enforced.) Officers also take away a mask prescribed by medical staff to help Ecclesiastical's breathing. (The warden says he doesn't need it because smoking isn't allowed, and if he witnesses any, he can snitch.) Jury: Pay him $40k in compensatory damages; several prison officials must also pay $71k to him in punitive damages. Eighth Circuit: No need to pay the $71k. (Click here for some journalism.)
  • SWAT visits home of Hot Springs, Ark. homeschooling family after 16-year-old (with history of unsubstantiated allegations) accuses his parents of neglect, abuse. His siblings deny the accusations; health officials find them to be happy, healthy. Nonetheless, they're removed from the home for several months, and it takes 21 months to resolve the charges against the parents. Eighth Circuit: The parents can sue the police. (More on the case here.)
  • At immigration hearing in 2009, ICE lawyer presents DHS form dated January 13, 2000, purportedly signed by immigrant. Yikes! DHS didn't exist in 2000. The form is forged; a judge relies on it to deny permanent residency status to immigrant, who has U.S.-citizen wife and children and is entitled to said status. (The lawyer is jailed for 30 days, prohibited from practicing law for 10 years.) Ninth Circuit: The immigrant can sue the now-former ICE lawyer.
  • Man stands on public sidewalk at least 50 feet from Calexico, Calif. border crossing and snaps a few photos of inspection area; officers handcuff him, threaten to smash his camera when he doesn't delete the photos. Ultimately, he's detained 20 minutes; his camera is returned with nearly all of the photos deleted. Ninth Circuit: Could be a First Amendment violation; this should not have been dismissed.
  • Man confesses to shooting, killing Millard County, Utah officer during traffic stop. He recants, says passenger in his vehicle shot the officer. (It turns out the passenger was the officer's brother.) A state court acquits the man of murder, but a federal jury convicts him of the same. (The brother isn't charged; he dies of an overdose.) Tenth Circuit: Conviction affirmed. No error to withhold evidence of the state court acquittal from the federal jury.
  • Lawyer attaches a smoking gun email to his complaint, refers to it as an "unofficial version." Turns out the email was altered to add critical text. Lawyer refuses to withdraw the complaint or otherwise correct the issue. District Court: That's sanctionable. Case dismissed with prejudice, attorney's fees awarded. Tenth Circuit: Submitting an altered document is deceitful, and refusing to retract the manipulation is doubly so. Affirmed.
  • In which Judge Rosenbaum of the Eleventh Circuit invokes '80s action hero and unconventional problem solver MacGyver in dispute over how tort damages award (arising from doctor causing severe brain damage to infant during delivery, during which the doctor took an eight-minute phone call from his stockbroker) is to be paid.

James Jenkins runs a home-based business publishing rare, out-of-print books, primarily 18th-century Gothic novels, horror novels, and works by early LGBT authors. This summer, he got a letter from the U.S. Copyright Office demanding free copies of virtually every book in his catalog on pain of fines that could reach $100k. Which is a problem! James prints books on demand and has no inventory lying around; complying would seriously damage his business. It's true the law entitles the Copyright Office to free books, but the requirement is a relic of the old copyright system and no longer serves any purpose. So this week, James teamed up with IJ and challenged the constitutionality of the requirement. Read more here.

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54 responses to “Short Circuit: A Roundup of Recent Federal Court Decisions

  1. “So writes Chief Judge Garland of the D.C. Circuit.”

    Never gets old.

  2. So apparently some students at a state school hold a free-speech rally for which they had advance permission (mentioning that they’d have shocking stuff like swastikas), some other students complain (anonymously or by signing their name) – a college official sends the free-speech students a notice which, by a supposed typo, is called a notice of charges, requires the free-speech students to meet with the official in two weeks, and not to talk about the case in the interim. At the meeting, the official explains there are no charges, and they’re simply investigating whether to investigate. Two weeks after *that,* the university sends a letter that there will be no charges, everything’s cool.

    No first amendment violation. No standing to challenge the regulations they were charged/not charged with violating.

    Fascinating.

    1. (no standing for a *facial* challenge, since the university’s behavior probably won’t be repeated)

    2. I think judges are, by definition, so utterly accustomed to the idea of people being brought to a hearing or conference to account for their behavior – what are courts for, after all – that it’s hard to consider it a big deal, especially if the person won.

      There’s a countervailing tendency to see chilling effect in First Amendment cases, but this requires a different form of thinking – putting oneself into the mindset of someone who doesn’t spend all their time in courts/hearings/conferences, and who gets understandably worried at the idea of giving an account to the government of First Amendment-protected activity.

      So, sometimes the judges will understand that any form of government attention to protected expression can be chilling.

      In this case, apparently, they looked at the case from the point of view of people accustomed to judicial/administrative proceedings – a case that’s resolved in a month is like nothing compared to what, say, an innocent libel defendant has to go through to get exonerated! So what are these students whining about?

      1. If I may offer a solution, it would be that if ad administrator gets a complaint about a student’s expression, *first* you look at the complaint to see if the expression is first-Amendment protected. If so, then the case is dropped. To preserve the suspect student’s right of access to his own records, the student should be told only *after* the charges are dismissed – “we got this complaint which was unfounded, and we’ll destroy this record if you ask.”

        1. I love that calling the student in to discuss the event is not considered part of the investigation. No, we aren’t investigating you. We’re just forcing you to come before us and justify your behavior. That’s totally different.

    3. ===(One complainant’s friend was “violently triggered” by a swastika and feels unsafe on campus.) Officials summon the group to a 45-minute meeting, where it must “answer for and explain each poster that was subject to a complaint.”===

      The spectacle of making a student answer to The State for speech related to a terrible regime that made people answer to The State for forbidden speech seems lost on The State.

      1. Yeah; I also was struck by the irony in that.

  3. From the Ninth Circuit opinion allowing Bivens remedy and denying qualified immunity to lying, forging ICE attorney (concluding paragraph, p. 31):

    “At its core, this case is about a lie, and all the ways it was used, over several years, to defraud the courts. Government attorneys are given great power, and with that power comes great responsibility.”

    Shout-out to Spider-Man!

    1. Stan Lee was riffing on Jesus: “unto whomsoever much is given, of him shall be much required” (Luke 12:48, KJV)

  4. “Supreme Court: Life sentences for juveniles violate the Eighth Amendment. Michigan: Okay, we’ll resentence all these prisoners, but we’re taking away the good time credits that they earned while serving their life sentences. Sixth Circuit: Which has the effect of increasing the punishment attached to their convictions, and so violates the Ex Post Facto Clause.”

    But, wait: They were actually sentenced to life. I find the state’s reasoning in regards to this point persuasive. They didn’t lose anything with the law establishing that their new sentence wouldn’t include the good time credits they couldn’t previously have availed themselves of.

    1. Yes, they did lose something.

      The LWOP sentence was unconstitutional and should not have been issued. They should have been sentenced to some specified term instead.

      Had they been correctly sentenced to begin with the time they had already spent in prison would have earned them credit. They should get it now.

      1. Well, of course they lost something at the time they were originally sentenced. That’s not retroactive, though. The point is that they didn’t lose anything at the time the court is complaining about.

      2. “The LWOP sentence was unconstitutional and should not have been issued. They should have been sentenced to some specified term instead.”

        This is incorrect. As bad as Kagan’s decision in Miller was, she didn’t go this far. It’s still constitutional to sentence a juvenile defendant to life without parole. It simply can’t be mandatory.

        Also, it’s only unconstitutional now because of “evolving standards of decency” bullshit. Before 2005, it would have been constitutional for the state to have executed these defendants if they were over the age of 15 when they committed their murder.

        “They didn’t lose anything with the law establishing that their new sentence wouldn’t include the good time credits they couldn’t previously have availed themselves of.”

        That’s what sloppy drafting gets you. The statutory credits were mandatory, regardless of the length of the sentence. It might be absurd, and almost certainly isn’t what the legislature intended, but that’s no reason to disregard the plain meaning of the statute.

        1. Fortunately, with the drunken senile Kennedy off the court, those types of decisions should become less common.

        2. OK. Thanks for the information.

          Still seems like they should get the credit, for similar reasons. The law requiring LWOP was unconstitutional, so the sentences were still invalid.

          “evolving standards of decency” bullshit

          So we should go back to hanging all felons?

          1. Well, that would certainly solve the problem of prison overcrowding.

          2. No we should let the state legislatures (read: the voters of that state) to decide. To do otherwise essentially means some states and their citizens get to control the state law of other states. That is completely antithetical to the constitution.

            I’m not even right wing on criminal justice matters. I am actually to the left, but that standard has no basis in the constitution and actually violates the entire point of the states being separate sovereigns.

            1. Does the 8th Amendment restrict the authority of the Staes to set criminal punishments?

              1. Does the 8th Amendment change over time? And even if so is evolving standards the way to do it? SCOTUS, using that standard, has invalidated laws as “cruel and unusual” when 40% of states still had the law on it’s books. Something is amiss if that is a viable test.

                1. @mse326

                  Completely aside from the evolving standards issue, as I understand it, SCOTUS has interpreted the 8th amendment as prohibiting punishments that are cruel and prohibiting punishments that are unusual, not just prohibiting punishments that are both cruel and unusual.

                  So if a given punishment is deemed unconstitutionally cruel, how usual or unusual it is would actually not be relevant to the analysis.

          3. “So we should go back to hanging all felons?”

            This is what happens when morons try to be clever.

        3. “The statutory credits were mandatory, regardless of the length of the sentence.”

          But would not get you out early if you were a lifer, so, so what?

          1. So taking them away is an ex post facto violation.

      3. The LWOP sentence was unconstitutional and should not have been issued. They should have been sentenced to some specified term instead.

        That is not correct. The Supreme Court did not say that LWOP was unconstitutional for juveniles. It said only, whimsically, that mandatory LWOP was unconstitutional for juveniles.

  5. “Is the father the American, in which case the now-former child is an American, or is the father the Panamanian, in which case the now-former child is not an American and can be deported”

    My understanding has always been that a child of a married couple always has the legal status of being a child of that couple, period.

    ” It’s true the law entitles the Copyright Office to free books”

    Seems as it Jenkins could always send them digital copies. 🙂

    1. TOJB: “My understanding has always been that a child of a married couple always has the legal status of being a child of that couple, period.”

      I don’t think it’s necessarily that absolute, but yeah, another case where a guy has to raise another man’s kid because his wife was indiscreet. I know that’s not the issue here — which is whether the kid is an American citizen. I just wanted to spout off.

      1. It’s a subject of particular interest to me because of my own similar family background.

        At one time the presumption of paternity doctrine was stronger than today, and it was certainly the legal doctrine everyone looked to at about the time this woman was pregnant. Here is some good info on it.

        http://www.lawmoss.com/publica…..f-the-law/

        1. True but that presumption came from a time before reliable paternity testing was available.

          1. Also, presumptions aren’t conclusions. A presumption is a starting point, the position we take before there is any evidence. Famously, criminal defendants are presumed innocent. This doesn’t mean that they can’t be found guilty, if sufficient evidence is presented, it just means that if there isn’t evidence, that’s the answer.

  6. I find the IJ case this week far more questionable than most, I can well see a rationale (even in modern times) for the copyright office to archive copies of books offered for sale. If a publisher desires the option of using law to protect their work (even if they don’t currently see a need to do so) I do not see a requirement that the publisher show it is indeed their work as at all irrational. And while these materials may be in the public domain there are likely aspects that are unique enough to be afforded protection (choice of stories in an anthology for example).

    1. But they are threatened with fines for not turning over the books. If it’s for their own benefit, why wouldn’t they be able to opt out and forgo the added protection that comes from having a book in the depository?

      1. There’s lots of cases where it’s better and easier for the administration of justice to have one set of rules, instead of one set of rules plus whatever we need at the time for someone who opted out. That’s why statutory marriage has largely displaced common-law marriage, for example.

    2. Handing over a copy of the book isn’t meant to be for their protection. It’s so Congress could have a good library.

    3. Your starting premise is wrong, Soronel. The purpose of sending in a copy of each book is not that “the publisher show it is indeed their work”.

      1. That’s part of it.
        If you have a registered copyright, and a work is deposited in the LOC, then there’s a reference point for whether or not the allegedly infringing work is the same as the copyrighted work.

        That’s not to say that a plaintiff can’t prove copyright infringement in an unpublished work, or one with an unregistered copyright, but from an evidence standpoint, comparison to the copy available in the LOC archives is pretty strong.

  7. If you live in Naperville, Ill. and want electricity, you have no choice but to buy it from the city, which has smart meters that collect energy consumption data every 15 minutes and store them for up to three years. Concerned residents: The data reveal when people are home or away, their sleeping routines, and more. Seventh Circuit: No Fourth Amendment problem here. The gov’t has a significant interest in providing effective utility services, and the risk of the data being used for law enforcement purposes is minimal.

    Well, this is quite disturbing.

    Will the Progressive-style mileage trackers also then get Fourth Amendment blessing?

    1. Mileage+Location+Date/Time Trackers. Need to bill more for heavier used roads during peak travel times after all….

      1. You want privacy? Build a Faraday Cage without windows and live in it – without electricity. Don’t put your trash out, flush your toilets or shower. Nothing in, nothing out. Then police will need to do a Well-being check ’cause extreme privacy is too weird – you must be hiding something. No warrant needed, anything found is admissible. This privacy fanaticism has to be stopped – it’s a compelling government interest.

    2. How much is there in a “minimal?”

  8. ‘…the possible presence of concealed handguns in classrooms would “have a substantial chilling effect on class discussion.”

    Knowing that the possibly present concealed firearms were illegally possessed would be much more comforting to Liberal/Left Austin, TX professors.

  9. Although the plaintiffs were permitted to discuss their acquittal in the criminal case, they were not permitted to elicit testimony regarding the criminal court’s assessment of Szura’s credibility or that of the other police officers.

    I understand that this was due to the judge’s ruling in the civil case in limine, but what is the reasoning behind such a ruling? The criminal case was basically about the same set of events as the civil suit; why are the findings of the criminal trial court inadmissible as evidence in the civil suit case? I’m not saying that it is a wrong decision, just trying to understand the law leading to such a decision.

    1. My guess is because there really isn’t any official findings into the credibility of witnesses. Further the testimony can really only be about internal jury deliberations which courts generally say is off limits for most, if not all, purposes.

    2. While the facts of the matter might be the same in a criminal and a civil case, the parties are different. (and the standard of evidence is different, too… losing in one case doesn’t necessarily mean losing in the other. You might be guilty, and the state can’t prove it beyond a reasonable doubt but the plaintiff can prove it with a preponderance of the evidence.)

      Here, I think you have a problem in granularity… acquittal means acquittal, it doesn’t mean that evidence presented was incorrectly-assessed, offered by unreliable witnesses, or whatever… it means there wasn’t enough of it. So you can point out that you were tried for a criminal offense, and acquitted… that’s established fact. But if you try to say “I was acquitted because the witness was a lying dog”… that’s opinion, not established fact, whether it’s true or not.

    3. In any given case, the jury is supposed to be the judge of whether the witnesses are credible. The fact that some guy did or didn’t think the witnesses were credible is legally irrelevant, even if that guy happens to be a circuit court judge.

      1. IF the judge chooses to append determination of facts to the judgment, those facts are established between the parties and one of the parties can’t argue different facts in another lawsuit. If the factfinder (judge or jury) simply renders a judgment without specifying any facts, then only those facts absolutely necessary to reach that judgment are precluded.

  10. a law making it a crime for a “habitual drunkard” to possess an alcoholic beverage

    Paltry morals expressed in authoritarianism.

    What’s next? Consumption of Pepsi by the diabetes-afflicted? Possession of a Bible by delusional street corner ranters? Use of cards or dice by bankrupted bettors? Entering a Hardee’s by the morbidly obese? Smoking a cigarette while uninsured?

    1. It’s your side that keeps trying to regulate/tax sugary drinks, not ours.

      1. And it’s your side that wants to enforce it’s own ideas of “proper” sexual activities.

        Nobody’s got clean hands, so to speak.

        Artie didn’t claim “your side” did anything… you’re jumping at shadows.

      2. My side is the libertarian side.

        1. Nope. We don’t want anything to do with you.

  11. What if James Jenkins assigned the copyright in the books and galleys to one company which sold only e-books and created a second company which sold the service of printing a copy of the e-book from the first company?

    Seems to me that should get him around the library of congress regulations OR the regulations are so overbroad that everyone who decides to print out a pdf purporting to be a book whether or not they had anything to do with it’s creation would be on the hook.

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