Short Circuit: A Roundup of Recent Federal Court Decisions

Feeding the homeless, drawing the Prophet Muhammed, and Kim Kardashian's plea for executive clemency.

|The Volokh Conspiracy |

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

Ratified 150 years ago, the 14th Amendment has been called America's "Second Founding." On September 21, IJ and the Liberty and Law Center at Antonin Scalia Law School will co-host a symposium to celebrate, discuss, and debate the Amendment's dramatic history, contemporary significance, and contested future. Please join us! The event features an all-star lineup of historians, legal scholars, and federal and state appellate judges—and a re-argument of the Slaughter-House Cases. Register here.

New on the podcast: Ignorance of the law is no excuse, immigration deference, war deference, and Honey Badger does care about copyright. Click here for iTunes.

  • In 2015, the EPA released new regulations for the storage of hundreds of millions of tons of toxic coal ash in hundreds of massive waste pits around the country, many of which do not have sufficient lining to prevent groundwater contamination. D.C. Circuit: The rule, which permits insufficiently lined pits to keep accepting waste (until operators are unable to successfully repair a leak), is arbitrary and capricious.
  • After a change in administrations, the EPA enacted the "Delay Rule," delaying enforcement of the Obama-era "Chemical Disaster Rule" that required safety audits of chemical storage facilities, better communication between such facilities and local first responders, among other things. D.C. Circuit: Which both exceeded the agency's authority and was arbitrary and capricious. Not to mention, it "makes a mockery of the statute."
  • Advocacy group submits proposed subway advertisement proclaiming a First Amendment right to draw the Prophet Muhammed; the ad itself depicts the Prophet Muhammed. In response, D.C. transit authority adopts a policy banning "issue-oriented" advertisements. D.C. Circuit: The transit authority's policy seeks to avoid controversy, but it has swapped controversies for lawsuits. We remand to consider whether the policy provides the kind of objective, workable standard required by the Supreme Court's recent Mansky decision.
  • ATF agents point guns at father and his 17-year-old son outside Coto Laurel, P.R. post office, detain them for 20 minutes. Yikes! The shipment of illegal firearms that agents were monitoring was picked up by someone else. Can father and son sue for false imprisonment? The First Circuit says no.
  • Three defendants are jointly tried and convicted of 2000 murder of Harrisburg, Pa. cab driver. Third Circuit (2013): One defendant gets habeas; improper evidence (involving jailhouse informants) was admitted at trial. (He's released in 2013.) Third Circuit (2018): But the second defendant, who challenged his conviction on the same grounds, doesn't get habeas because of a 2004 Supreme Court holding (that the 2013 Third Circuit panel did not consider) mandating that result.
  • Newark, N.J. officials did not violate taxi medallion holders' constitutional rights by allowing the value of taxi medallions to drop (from over $500k in 2013 to under $220k in 2016) or by regulating ridesharing companies differently than taxi companies, says the Third Circuit.
  • Allegation: Coraopolis, Pa. officer investigating sex assault takes photos of victim with his personal cell phone, touches her, badgers her into unnecessarily revealing her vagina, fails to document the clothing she provided, and lies about his conduct. District court: Qualified immunity. Wasn't clearly established that kind of thing is unconstitutional. Third Circuit: Reversed.
  • Allegation: Harris County, Tex. officer tases half-naked, incoherent man (5'3″ and 154 lbs.) who ignored officers, wandered away from them on frigid night. The man falls, fractures his skull, suffers life-threatening brain damage. Police say he adopted a fighting stance, but there's no video; they didn't turn on their cameras. Fifth Circuit: The officer who fired the taser violated the man's Fourth Amendment right to be free from excessive force. But the man can't sue. Wasn't clearly established that kind of thing is unconstitutional.
  • Teen is imprisoned for 16 months awaiting trial for murder. The jury acquits after 29 minutes of deliberation. Can the then-teen sue a San Jacinto County, Tex. officer who allegedly omitted and misstated key facts on an arrest warrant affidavit? Yes, says the Fifth Circuit, and with great dispatch, as this has been pending for over seven years. (Click here and here for more on the case from the National Registry of Exonerations.)
  • "Handcuffs are supposed to hurt." So says a Michigan police officer, when he arrests a driver during a roadside stop. Driver sues, claiming the cuffs crushed a nerve. Sixth Circuit: Our precedent put the officer on notice that handcuffing violates the Fourth Amendment if an arrestee complains the cuffs are too tight, the officer ignores the complaint, and the arrestee suffers injury. No qualified immunity here.
  • Seasoned Louisville, Ky. criminal defense attorney is indicted for failing to file tax returns, represents himself for 21 months (between indictment and trial). On eve of trial, he asks for continuance so he can find counsel; the judge denies it. He's convicted of failing to file tax returns, sentenced to three years. Sixth Circuit: There's no evidence in the record he was ever informed of his right to counsel. New trial.
  • Man serves 21 years of 35-year sentence for nonviolent drug offense, is released early based on new sentencing guideline. He comports himself admirably for the two years he's on supervised release (as he did during his incarceration). But prosecutors appeal and win reversal of his sentence reduction. Sixth Circuit: Which is the correct legal outcome. "Executive clemency provides [him] another avenue for relief." (Click here for Kim Kardashian's take.)
  • USA Gymnastics national team physician molests dozens of children over 20-year period. Separately, he amasses collection of over 37,000 images and videos of child porn. Sixth Circuit: No reason to reconsider his 60-year sentence for the child porn. (Via Sixth Circuit Blog.)
  • Man takes generic antidepressant, commits suicide. His widow sues not the manufacturer of the generic drug, but the manufacturer of the brand-name version, Paxil, which was responsible for the warning label. Widow: The harm wasn't taking the drug; the harm was that the warning label failed to warn the drug was linked to suicide in adults. Drugmaker: We tried to include that on the label, but the FDA wouldn't let us. Seventh Circuit: Case dismissed.
  • Criminal defendant starts to speak at a sentencing hearing, but his lawyer tells him to be quiet. Later, with new counsel, defendant argues district court made various procedural errors at the hearing. Seventh Circuit: These claims were waived, as the lawyer did not raise them. It's irrelevant that the lawyer stopped the defendant from speaking, as it's not the court's job to interfere in the attorney–client relationship.
  • In wake of the housing crisis, the Federal Housing Finance Agency, a new federal agency that "supervises" lenders Fannie Mae and Freddie Mac, forces them to turn their profits over to the U.S. Treasury instead of investors. Investors: We want our money back! The FHFA's "net worth sweep" regulation is unlawful. Eighth Circuit: No, it's lawful. Judge Stras, concurring: The investors "make a compelling case that the FHFA … has grown into a monster. But judges are not superheroes; we cannot run to the rescue every time danger looms."
  • Medford, Ore. police identify bank robbery suspect. They have no address for him on file, but they learn his girlfriend has a no-contact order against him. They search her home without a warrant (and, it is presumed, without her consent) and find their man. A Fourth Amendment violation? Not a bit of it, says the Ninth Circuit. He didn't have a reasonable expectation of privacy at her place. But, in a separate order, his conviction is reversed for unrelated reasons.
  • After serving 17 years in prison for a murder she did not commit, woman sues LAPD detective for withholding evidence that the prosecution's star witness was a serial liar who had already been deemed an "unreliable informant" five years before the murder trial. Detective contends that no reasonable officer would have understood that disclosure of this evidence was required. Ninth Circuit: Well then you and I have different understandings of the word "reasonable." (Click here for more on the case from the National Registry of Exonerations.)
  • Railroad tank car carrying harmful chemicals springs a leak, permanently disables workers. They try to get different jobs at the railroad company but are rejected from all (more than 20 each). They say these rejections are discriminatory and file claims with the EEOC. Railroad company: Aha! The court can't hear most of this because you didn't file a separate EEOC claim for each rejection. Tenth Circuit: Not so much. Even though our old precedent said that, it was wrong, so (upon polling the rest of the court but without formally going en banc) we're going to overrule it. (The court also has some words (and imposition of costs) on why attorneys shouldn't skimp on the appendix.)
  • Disney theme parks accommodate individuals with cognitive disabilities by allowing them to skip the line for all rides with wait times of less than 15 minutes (which is most rides) and to schedule appointments at rides with longer wait times. They are never required to wait in lines. Parents (in 30 separate lawsuits): Not good enough. Our kids still have meltdowns. Eleventh Circuit: Disney might not be complying with the ADA.
  • Alabama abortion law prohibits dismembering living 15- to 18-week-old fetuses; rather, fetuses must first be killed in utero and then dismembered and extracted. District court: The state's proposed methods of fetal demise are not feasible. The law is unconstitutional. Eleventh Circuit (reluctantly, and with two concurrences): That's so.
  • Activists host sit-down weekly dinners with free food in public park where homeless tend to congregate. Fort Lauderdale, Fla. officials impose permitting scheme that restricts such meals. Eleventh Circuit: The meals are expressive conduct; the activists' constitutional claims should not have been tossed.
  • "Consider two people, one who has money and the other who does not. They are arrested for the same crime at the same time under the same circumstances … [and] would have the identical bail amount …. The person who has money pays it and walks away. The indigent can't pay, so he goes to jail." Which is a serious deprivation of liberty, writes Judge Martin, dissenting from the Eleventh Circuit's rejection of a preliminary injunction over Calhoun, Ga.'s money bail policies.

Since 1873, Maine school districts have paid for students who live in towns too small to support a public school to go to a school of their choice, whether private or public, in state or out of state. But parents have not been allowed to select religious schools for their children since 1980, which violates equal protection and religious freedom, argues a new IJ lawsuit on behalf of three families. Last year, the Supreme Court, in a 7–2 decision, ruled that excluding religious groups from public programs for which they are otherwise qualified "is odious to our Constitution … and cannot stand." Maine's discrimination against religious families cannot stand. Click here to read more.

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

  1. Why aren’t the investors suing in the FHFA case as a takings?

  2. I suspect that Judge Abrams concurred in judgment only on the Alabama abortion case based on the heavily implied disapproval of abortion jurisprudence in the lead opinion and the rather graphic language. It was indeed an uncomfortable read.

    1. Why should the fact that what the law demanded is not feasible matter? California upheld a gun law that can’t work.

      1. Maybe they shouldn’t have either.

  3. If its okay to dismember a living feeling human without anesthesia why do these same folks want me to pay extra to get farms to stop throwing chicks into meat grinders? In fact what is with all this animal rights stuff the animals may or may not care about like extra large boxes for hens or bans on foi gras?

    1. The court allows the killing of the fetus because it pretends it is not an independent living being. Tossing baby chickens alive into a meat grinder is like tossing small children or newborn infants, dismembering fetuses alive is like eating fertilized eggs.

      To rule otherwise would violate Roe v Wade.

      1. No, Roe v. Wade didn’t decide whether or not it was an independent living being. Its fundamental decision was that the term “person” as used in the constitution didn’t apply to it, so that it has no independent legally protected interest in itself, and also that, generally speaking, a woman’s interest in getting an abortion trumps the state’s interest in it.

        In deciding the first issue, the Supreme Court was careful not to consider any issue of biology. Indeed, it refused to hear “the well known facts of fetal development” that the State of Texas had offered. It considered only, based on an interpretation of he Constitution’s text, whether the word “person” in the Due Process Clause had “pre-natal” application.

  4. Re the Sixth Circuit decision that Kim Kardashian is upset about: Ross’s description of the crime as a “nonviolent drug offense” is questionable to say the least. Defendant was convicted of both drug and weapons charges, and according to the 6th circuit’s initial opinion overturning the reduction of his sentence (US v. Charles, 843 F.3d 1142), his prior record (on which the sentence was largely based) included “kidnapping a woman on two consecutive days ‘for the purpose of terrorizing her’; burglarizing a home; and fleeing from a police interrogation, shooting a man in the head, and attempting to run off in the victim’s car.” Perhaps 21 years of good behavior in prison with 2 more years of good behavior after release should nevertheless have been enough, but that determination isn’t nearly as simple as Ross’s description makes it sound.

  5. officer investigating sex assault takes photos of victim with his personal cell phone, touches her, badgers her into unnecessarily revealing her vagina, fails to document the clothing she provided, and lies about his conduct. District court: Qualified immunity. Wasn’t clearly established that kind of thing is unconstitutional. Third Circuit: Reversed.

    “Wasn’t clearly established that kind of thing is unconstitutional.” WTF???

    1. The 5th Circuit taser case is more outrageous.

      1. You mean /even/ more outrageous.

        And you mean the first 5th circuit case, right? (allowing the tazing of the poor, naked, demented guy) The second one allows the then-teen to (I hope) /finally/ get some justice.

        1. Yes, the tazing of the poor naked guy who wasn’t violent.

    2. Oh, I see, the district court was stupid, but the 3rd circuit said the rights the plaintiff invoked *were* well-established.

      “Viewing the record in the light most favorable to Kane, which supports an inference that Barger acted for
      personal gratification rather than investigative ends, we hold that Barger’s conduct shocks the conscience and violated Kane’s right to bodily integrity. We further hold that the right at issue was clearly established at the time of Barger’s conduct. Accordingly, we will reverse and remand for further proceedings.”

    3. Well, it was reversed . . .

      1. Yes. I saw that. But still.

  6. Ratified 150 years ago, the 14th Amendment has been called America’s “Second Founding.” On September 21, IJ and the Law and Liberty Center at Antonin Scalia Law School will co-host a symposium to celebrate, discuss, and debate the Amendment’s dramatic history, contemporary significance, and contested future. Please join us! The event features an all-star lineup of historians, legal scholars, and federal and state appellate judges . . .

    Note: “historians.” Actually, 1 academically trained historian, who is also a lawyer?a very good start, of course, but only 1 among almost 30 law-trained presenters. Until you guys get it together to talk to academic historians, and do it as if what they have to say is important, you aren’t ever going to make sense of the “originalism” so many advocate.

    Talk about America’s “Second Founding?” That would raise historical questions lawyers aren’t remotely competent to answer?not least of which is whether it is wise or useful to interpret a national “founding,” as nothing more than an adjustment of laws.

    Also, IJ and the Scalia Law and Liberty Center are overtly partisan. So shame on sitting judges who permit those partisan organizations to lend the judges’ courts’ prestige to the promotion and proceedings. I hope to see a day when that kind of conduct is seen as grounds for impeachment, starting with SCOTUS. There is an emergency need to separate the nation’s judicial process from overt partisanship.

    1. People of similar (or even dissimilar) views are entitled to associate without retribution from the government. This is bedrock stuff.

    2. “There is an emergency need to separate the nation’s judicial process from overt partisanship.”

      A necessary predicate to such a thing happening would be a drastic reduction in the size and scope of the federal government, the budget, the bureaucracy, and the federal code.

      A significant reduction in overt partisanship in the nation’s judicial process would necessarily require a reduction in what/how much is at stake in the nation’s judicial process.

      1. Slyfield and nonzenze, you ought to be ashamed. More and more on the political right, advocates see the partisan judicial pendulum swinging their way, and try to justify it. You are cheerleading in favor of rot.

        1. I’m not trying to justify anything. My comment was was simply a statement of reality. As long as the stakes are high enough, any effort, no matter how well thought out or how well intended, is doomed to failure. This isn’t good or bad, it simply is.

          1. effort to keep partisanship out of the judicial system.

        2. I’m not even on the political right. I’ve voted D consistently and regularly.

          Moreover, completely apart from my opinions on either the state/direction of the judiciary or the merits of IJ of the L, your statement betrays a shocking disregard for the value of free association.

          We all understand that you do not agree with their views (heck, I am very mixed, some of it I agree with much of it I don’t). We all understand that the reason that you do not agree with their views is (somewhat tautologically) that you believe their view of the law is both incorrect and that its implementation would lead to real harm.

          One does not need to ‘justify’ their views in order to acknowledge their right to associate and promote those views.

          1. One does not need to ‘justify’ their views in order to acknowledge their right to associate and promote those views.

            I want to be clear. You are suggesting it is proper for a sitting judge to promote politically partisan views? Do you extend that to allowing the same judge to sit on cases with politically partisan implications, as every member of SCOTUS now does? Finally, do you think that’s good for the prestige and effectiveness of the justice system. Good for the legitimacy of the courts?

            1. (1) You are suggesting it is proper for a sitting judge to promote politically partisan views?

              Yes. Not only is it proper, it’s a core exercise of political expression.

              Are you suggesting that a sitting judge has a duty to refrain from putting a lawn side up supporting a political candidate?

              (2) Do you extend that to allowing the same judge to sit on cases with politically partisan implications, as every member of SCOTUS now does?

              I’m not going to rehash the rules on recusal, which I’m sure you know well.

              What am I going to suggest, is that covert partisanship is at least as threatening as overt. A rule that punishes political expression but gives a pass to a judge that has the same opinion but does not state it does less than no good.

              (3) Finally, do you think that’s good for the prestige and effectiveness of the justice system. Good for the legitimacy of the courts?

              Do I think that engagement with legal scholarship and advocacy, even when I disagree with the merits or consequences of those positions, is good for the effectiveness of the justice system? Is that even a question.

              1. I hear ya nonzenze. For Stephen, it’s appears to be a case of either being for or against his personal ideology. Kinda reminds me of the current iteration of Antifa especially those that attacked a person for carrying a US flag; they didn’t care about his ideology either even though he supported their side.

    3. Also, IJ and the Scalia Law and Liberty Center are overtly partisan.

      False. One might almost say, a deliberate lie. Or said by someone who knows the meaning of neither the word “overt” nor the word “partisan.” Both are non-partisan 501(c)(3) organizations.

      By the way, it isn’t the “Scalia Law and Liberty Center”; your reading is as careless as your writing. It’s the Law and Liberty Center at the Scalia Law School. (Actually, it’s the Liberty & Law Center, but you get a pass on that one because the press release got that wrong too.)

      And rather than being grounds for impeachment, the canons of conduct for judges encourage judicial participation in educational programs about the law.

      1. It’s news to you that there are overtly partisan 501(c)(3) organizations? I get that the law (gently) suggests it should be otherwise. But for at least 20 years there has been an energetic industry busily engaged in breaking that law, with the nodding approval of a corrupt Congress. That isn’t news to anybody, except maybe you, I guess.

        Here’s a pretty good meaning of “overt,” for you. It means they aren’t trying to hide it. Look at their websites. What fool would look at the websites of these two organizations and come away thinking they were non-partisan? Both organizations are advocates for right-wing politics, and neither is trying to hide it. So yeah, overtly partisan.

        1. I was going to interject. We are all aware of your opinion on how what 501(c)(3) “really means” (leaving aside that when everyone in Congress disagrees, you ought to at least consider that your view might not be the one they intended, even if it would be a better reading).

          In any event, looking at their website, I would surely believe they hold particular views. It would be kind of milquetoast to imagine that associative groups would have no positions or views, believing in nothing at all.

          No one is suggesting otherwise. In fact, some of us are kind of favor of the idea that people express views, even when we disagree with the views, their outcomes or the manner in which they are pursued.

        2. Are you talking about Media Matters? Do you place them in the same category of partisan as IJ?

          1. After all they are a far-left partisan 501c3.

            While I may disagree with their ideology, they have the Right to advocate for their beliefs just as any other group or individual.

        3. The vast right wing conspiracy apparently really likes African hair braiders and eye brow threaders.

        4. It’s news to you that there are overtly partisan 501(c)(3) organizations? I get that the law (gently) suggests it should be otherwise. But for at least 20 years there has been an energetic industry busily engaged in breaking that law, with the nodding approval of a corrupt Congress. That isn’t news to anybody, except maybe you, I guess.

          I think you are confusing 501(c)(3) with 501(c)(4). I know that you don’t know what overtly and/or partisan mean. To wit:

          Here’s a pretty good meaning of “overt,” for you. It means they aren’t trying to hide it. Look at their websites. What fool would look at the websites of these two organizations and come away thinking they were non-partisan? Both organizations are advocates for right-wing politics, and neither is trying to hide it.

          (1) You are confusing “libertarian” and “right wing.”
          (2) You are confusing the concepts of “ideological” and “partisan.”

          Yes, go to IJ’s website. I am very very familiar with the organization. You will not find a single example of partisanship, overt or otherwise.

          Similarly, take your own advice and feel free to check out the Liberty & Law Center’s website. Point to these examples of partisanship. (That should be an easy task; it’s a pretty sparse website.)

    4. “There is an emergency need to separate the nation’s judicial process from overt partisanship.”

      Can’t see how that would be done without changing the constitution or otherwise making justices complete slaves to their positions, but supposing some way is found, all that would be accomplished is to change “overt partisanship” to “covert partisanship.”

    5. “IJ and the Scalia Law and Liberty Center are overtly partisan. So shame on sitting judges who permit those partisan organizations to lend the judges’ courts’ prestige to the promotion and proceedings.”

      Do you consider the ACLU overtly partisan? Did you object when Justices Scalia, Souter, and Ginsburg spoke[1] the plenary luncheon of the ACLU Membership Conference in 2008, praising the retiring Nadine Strossen?

      [1]strictly speaking, she did the talking for all three

    6. As I stated before, your desire to remove partisanship from the judicial process no matter how well intended, and regardless of the merits of the idea on a philosophical basis, is doomed to failure.

      The rule of law is a myth.

    7. “Note: “historians.” Actually, 1 academically trained historian, who is also a lawyer?a very good start, of course, but only 1 among almost 30 law-trained presenters. “

      You went through every presenter’s profile, found all the ones that had “BA” listed, then dug deeper into their records to find out specifically that their BA degree was not in history?

      Some universities have 25% of history majors go on to law school after graduation. So I am betting that of those 30, more than one is actually an academically trained historian.

      Putting that aside, why you do think someone needs to have a specific degree to be able to speak authoritatively about a subject that they have researched and studied? It is some sort of strange reverse appeal to authority argument. That someone’s ideas or knowledge are somehow less credible if they don’t have a degree in that field.

  7. Apparently Varuca Salt’s father (of Willie Wonka game) had very, very, very bad lawyers. Shame on him.

  8. I would take the position that questions of whether bail is excessive are controlled exclusively by the Excessive Bail clause.

    But that said, I don’t think it would be illegitimate for the 11th Circuit to make an argument that the Supreme Court should consider overruling it’s prior caselaw in an appropriate case and consider the idea that especially when the offense minor, bail an indigent defendant can not afford to pay thereby becomes excessive, just as it could be argued that fines an indigent defendant can’t pay are excessive

    I would consider myself more a legitimacist than a strict originalist. The constitution is filled with vague standards, like “due” process of law, “excessive” bail and fines, “cruel” punishments, “unreasonable” searches and seizures, etc. So long as the Court is genuinely interpreting the applicable standard, it is not illegitimate to loosen or tighten it somewhat as society evolves. So when the court determines e.g. what kind of notice or hearing satisfies fundamental fairness, it is legitimately interpreting “due process” even if I might disagree with the particular standard.

    Same with “excessive” fines and bails. I think there’s an argument to be made that this should be determined relative to income and assets rather than absolutely.

    I sharply distinguish this from turning constitutional provisions into a free-floating power to overturn laws the court doesn’t like.

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