Short Circuit: A Roundup of Recent Federal Court Decisions

Drop drippers, solitary confinement, and hawks v. eagles.

|The Volokh Conspiracy |

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

In a colorful decision that managed to invoke the Boston Tea Party, Lady Macbeth and Jesus of Nazareth, the Eleventh Circuit ruled that Fort Lauderdale, Florida's permit requirement to share food with homeless people in public parks may run afoul of the First Amendment. Over at, IJ's Nick Sibilla has more.

  • Shirley, Mass. prison officials receive information that prisoner is a gang member threatening violence, so they place him in solitary confinement, where is held for a total of 611 days without being able to challenge or appeal the determination. A due process violation? First Circuit: Inmates do not have a right to avoid restrictive confinement conditions unless those conditions impose "atypical and significant hardship" compared to ordinary prison life. And because it's not clearly established what kind of hardship meets that standard, qualified immunity all around.
  • Plaintiffs say defendants' medical eye-droppers dripped drops that were too big, which caused the plaintiffs to drop more money to cover the extra dripping. Maybe so, says the First Circuit, but their state-law claims are preempted by FDA regulation of medical drop-dripping.
  • When is an intercept not an intercept? When it's only "functionally" contemporaneous, as opposed to, you know, contemporaneous, says the First Circuit in this opinion on the Electronic Communications Privacy Act.
  • Luxury-goods broker has "100 percent risk-free" plan to poison a target with ricin (a deadly toxin that has no known antidote and is undetectable in an autopsy), which he purchases on the Dark Net for $300 in Bitcoin and has delivered to Manhattan post office box. Surprise! The seller is actually an FBI agent (and ricin is not actually delivered). Broker: the Biological Weapons Act can't possibly prohibit a single, local murder; federalism and the Commerce Clause say so. Second Circuit: Conviction affirmed.
  • New York liquor distributor files a RICO lawsuit against Maryland liquor distributors, alleging that they illegally smuggled liquor from Maryland to New York, allowing retailers to avoid New York's high liquor taxes. Second Circuit: Even if that's true, you haven't shown that the smuggling directly caused your lost sales.
  • Participants in Philly ticket fixing scheme argue that they could not have defrauded the government out of fines and costs associated with traffic tickets because there must be a guilty plea or conviction before fines and costs are owed, and none of the folks whose tickets they fixed pled guilty or were convicted. Third Circuit: There's a fine line between clever and stupid; you're on the wrong side.
  • Imprisoned for nine years for a crime that may not have even happened, mentally handicapped man sued for damages. Third Circuit: Unfortunately, "with the performance of his various counsel marred by inexcusable delays and dilatory discovery efforts…most avenues of relief are now closed to him."
  • Appellant: Our logo does not infringe the plaintiff's trademark because their logo is a stylized eagle with 43 feathers while our logo is a stylized hawk with 43 feathers. Fifth Circuit: These birds are the same birds.
  • Former OSU football star James Stillwagon probably thought that his day had gotten as bad as it could when a driver with road rage tried to run him over six times, forcing him to use a handgun to defend himself. That was before he got arrested, roughed up, and charged with felonious assault. Sixth Circuit: And the cops who roughed him up and lied to get an indictment are not entitled to qualified immunity.
  • The Fair Housing Act prohibits "making, printing, or publishing" any "notice, statement, or advertisement" with respect to "the sale or rental of a dwelling" that indicates any racial preference or discrimination. Does this mean that Ohio county recorders violate the law when they maintain property records that contain unenforceable, decades-old racially restrictive covenants? Sixth Circuit: No need to answer that question, because the plaintiff doesn't have standing.
  • Freed after two years in jail for a shooting that he did not commit, man sues Detroit police officers whose withholding of evidence and repeated lies led to his conviction. Sixth Circuit: Unfortunately for him—no, just kidding this time. No qualified immunity. Any cop would have known this was wrong.
  • The City of Chicago requires sex offenders to register with the police department. But if you're homeless, they won't register you; homeless sex offenders have to show up once a week or risk arrest. A due process violation? Seventh Circuit: Not at all! The Due Process Clause protects against state action that deprives homeless sex offenders of liberty, and Chicago's policy merely jeopardizes their liberty.
  • Driver is scared to pull over for police, because the last time this happened she was tased while handcuffed, leading to an excessive force lawsuit. So guess what happens when she instead drives home slowly before exiting her van: A straight-arm takedown by the same taser-happy officer. Should the jury in her new excessive-force case have been allowed to know about the earlier incident? Seventh Circuit: A reasonable officer would have at least considered whether the driver was slow to pull over because she was scared of being subject to excessive force again; the trial court shouldn't have dismissed the earlier incident so lightly.
  • Mom calls police on teenage son for acting violently. As Minneapolis's finest take the kid down, officer feels a pain in his leg and accuses 5′ 4″, disabled mom, who'd backed up to give clearance, of kicking him. She denies it, and an eyewitness confirms her account. Officer arrests her anyway, and she's jailed three days before charges are dropped. Qualified immunity? Ummm, no, says the Eighth Circuit. (Oh, and that pain in the leg? A sprained or ruptured calf muscle.)
  • Anonymous caller to Bryan County, Okla. officials voices concern for a six-year-old boy's safety on account of his father's use of drugs and previous arrest record. Two days later, police pick the boy up at school and drive him to a safe-house where they interview him. While the interview doesn't result in evidence of abuse, it does result in stress and trauma for the boy as well as messes up his relationship with his father. Tenth Circuit: No qualified immunity for seizing the boy, as officials had no reasonable suspicion he was in imminent danger. But immunity for the allegation that they interfered with the boy's and father's relationship, as the right wasn't clearly established.
  • Inmate placed in solitary confinement due to allegations he was trafficking drugs, where he remains for 20 years. Each month, officials review the determination; reviews last one to two minutes, provide no guidance as to how to get out of solitary, and repeat the same reason to keep him in solitary. Tenth Circuit (unpublished, non-precedential 2013 decision): qualified immunity. Tenth Circuit (2018): qualified immunity; the previous case says so, and neither the law nor the facts have changed much since then. Concurrence: The previous decision was wrong but binds us here. Twenty years in solitary based on only marginal justification violates due process.

The government is not allowed to pick winners and losers in the marketplace. That choice belongs to customers. But when local restaurant owners asked the Town of Carolina Beach to ban competition from "outsiders," that's exactly what it did. In April, the government decreed that food trucks could only be owned by local restaurant owners—and were banned for everyone else. Last Tuesday, some of those "outsider" food-truck owners teamed up with IJ to file a lawsuit challenging this blatantly protectionist restriction. One week later, the town responded by repealing the ban. In the mayor's words following the repeal: "Food trucks are welcome!" Click here to read more.


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  1. Those logos are nearly identical beyond the identical birds.

    1. Come on, one is clearly a hawk and the other an eagle. Clearly.

      I get the feeling there was a nasty split in the Alliance ranks in the early 80s that led to the formation of Coalition and that Coalition was trying to maintain as much continuity as possible with Alliance while forming its separate group. I just can’t see any other way the birds could be identical and the logos could be that close.

      1. Both logos depict an eagle, and specifically a bald eagle. The shape of the beak is distinctive, identical between the two, and belongs to no other bird?at least among birds in North America. What examples the rest of the world can offer, I can’t say. If any from elsewhere are similar, they will probably be eagles, not hawks.

        1. Clearly the Coalition bird is a hawk.

          1. I don’t know how anyone could confuse the two.

  2. I love these roundups! One thing, though: the Luxury-goods broker opinion link is broken.

  3. broken link to the former OSU football star at the Sixth Circuit

  4. Twenty years in solitary?! That guy’s brain must be interesting at this point, to say the least. I wonder how sane he is…

    1. Twenty years in solitary based on only marginal justification violates due process.

      I’ll say. It violates a bunch of other stuff too. How do the “officials” get away with this shit? They need to be in jail themselves.

      1. “How do the “officials” get away with this shit?”
        (un)Qualified Immunity.

  5. The Sixth Circuit football-start-false-arrest case (the link worked for me) sounds pretty bad, with detectives knowingly testifying falsely to a grand jury. Apparently they enjoy absolute immunity for that. My googling didn’t find any reports that he has been fired or disciplined. I would think he would have credibility problems going forward.

    1. That Stillwagon story is amazing. Someone should make it into a movie.

    2. I understand that most defense lawyers don’t have much time to do much more than try to do a bit of plea bargaining. But I am surprised that there aren’t services that develop databases on police officers and dossiers to defense lawyers on everything the police officers in their cases ever did that might have some impeachment value.

  6. While the First Circuit was dealing with an extremely unsympathetic plaintiff – he was caught viewing child pornography on his work computer and his employer monitored his computer – nonetheless the First Circuit’s interpretation of the Electronic Communications Privacy Act would seem to create a loophole enabling eavesdropping of other people’s internet communications to be completely legal as long as it takes place at an end computer (not somewhere in the middle) and the interceptior uses some sort of delay mechanism so the interception isn’t contemporaneous.

    It may seem the right result in this case, but it might end up rendering the Electronic Communications Privacy Act a nullity.

  7. In the ricin case, the 2nd Circuit went through a rather tortuous route to explain how the decendant’s conduct had a substantial effect on interstate commerce.

    This logic was irrelevant. The reason is that defendant’s conduct WAS interstate commerce, the direct thing itself. He ordered ricin from out of state on the internet, had it shipped by the postal service, and was intending to tranship it to a client in China.

    The shipment of goods across state and national boundaries IS interstate commerce, the thing that all that other stuff has a substantial effect on. There was evidence the defendant was lining up clients and trying to establish a regular business. But even if it was for a single local murder, shipping goods across state lines is interstate commerce in its narrowest and most direct and literal sense. In days of yore, federal agents HAD to stake out their wagons at a state border or at a post office to catch interstate commerce. They don’t have to any more, but it’a still interstate commerce when they do.

    The fact that a federal Court of Appeals didn’t notice this – that it was so focused on substantial effects that it didn’t even recognize the thing itself when it saw it – seems to me to be rather striking.

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