Short Circuit: A Roundup of Recent Federal Court Decisions

Interviewing prisoners, Auer deference in criminal cases, and Rand Paul's neighbor.

|The Volokh Conspiracy |

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

After four years of litigation, Philadelphia's civil forfeiture machine will soon grind to a halt. IJ Senior Attorney Darpana Sheth has the details over at The Philadelphia Inquirer.

  • Woman enlists the help of Virgin Island marshals with truant 15-year-old son. Allegation: Marshals arrive and find boy relaxing unarmed but nevertheless shoot him, rendering him quadriplegic. Third Circuit: No immunity. You can't shoot someone who provides no serious threat of immediate harm.
  • Pro-tip from the Third Circuit for attorneys requesting fees: Don't have a single-spaced, 6- to 8-point font, 44-page fee petition including "hundreds of inappropriate, unethical entries that would likely be illegal if billed to a client." You might find yourself facing no fees, a sanction, and a referral to the attorney disciplinary board.
  • The Fifth Circuit finds that Louisiana's law requiring a doctor to have hospital admitting privileges in order to perform an abortion is not unduly burdensome because only one of the six affected doctors had tried and failed to obtain such privileges.
  • Teachers at a Louisiana charter school vote to unionize. The school ignores the vote, arguing that the National Labor Relations Act applies only to private employers, and the school is a political subdivision. Fifth Circuit: The school is privately owned and operated, and has privately chosen board members; it's a private employer. Concurrence: That's right, but not because the NLRB said it's right.
  • The Fifth Circuit considers the titillating question of whether Louisiana can prohibit erotic dancers between the ages of 18 and 20 from exposing their breasts and buttocks and holds that, while the law is not overbroad, it is unconstitutionally vague because it doesn't say how much "clothing" is sufficient. Preliminary injunction affirmed; the show will go on.
  • Drug suspect flees Tupelo, Miss. police and hides in a crawlspace. K9 officer orders him to come out and then releases a dog, which bites the suspect until he flees the crawlspace, tackles the officer, and nearly beats him senseless before the officer shoots four times, killing the suspect. The Fifth Circuit rules that qualified immunity is warranted.
  • But, on remand from the Supreme Court, the Fifth Circuit says, "Yeah, we got this one right the first time," and again rejects qualified immunity for Sachse, Tex. officers who fired on a 17-year-old who was holding a gun to his head, which he then discharged, severely disabling himself.
  • Former Detroit Mayor convicted of litany of crimes relating to city contracts, including extortion, bribery, fraud; sentenced to 28 years in prison and ordered to pay $4.5 mil in restitution to city. Sixth Circuit (2015): Restitution should reflect the amount the victim lost, not necessarily the profit defendants gained. Recalculate. District court: Fine. Pay $1.5 mil. Sixth Circuit (2018): That's more like it.
  • Man attacks his neighbor, a U.S. senator from Kentucky, takes plea deal wherein the gov't agrees to seek 21-month sentence. But wait! The judge sentences him to just 30 days. Prosecutors appeal the sentence, in spite of alleged implication by the gov't that no appeal would be made. Sixth Circuit: The language in the plea deal waiving the man's right to appeal does not imply a reciprocal waiver of the gov't's right to appeal. (Note: There is a circuit split on the issue.)
  • Ohio prison officials deny in-person interviews with death row prisoners who took part in deadly 1993 Lucasville prison riot. Media: Which violates the First Amendment. Sixth Circuit: Not so. A blanket ban on in-person interviews with death row inmates is content neutral. And because it also serves a legitimate security interest, the ban would likely also be permissible even if it had specifically targeted content related to the riot. In the context of prisoners' rights, "'neutral' does not require that a regulation be divorced from the speech's content."
  • After a 5-foot-tall woman continues walking despite a Wymore, Neb. officer's command to "get back here," the officer grabs her in a "bear hug," throwing her to the ground, breaking her collarbone and causing her to briefly lose consciousness. Qualified immunity? This Eighth Circuit panel says yes, over the dissent's observation that some things are so obviously wrong that we shouldn't need on-point cases to tell us not to do them.
  • Fun fact: North Dakota is the only state that does not require voters to register. You just show up with ID, which must have a residential address on it, and vote. District Court: Many Native American voters lack residential street addresses. Stop enforcing that part of the law. Eighth Circuit: Injunction stayed. "There is no universal rule that forbids a stay after Labor Day."
  • California Uber drivers: We're Uber employees (not independent contractors), so we're entitled to expense reimbursements. Plus, Uber didn't turn over all our tips. District court: This merits a class action. That being so, let's sort through a ton of issues. Ninth Circuit: Actually, this case should have gone to arbitration. The district court's class-related orders are vacated. The arbitrability of arbitration strikes again!
  • Butylone is an illegal hallucinogen, and so are its positional isomers—molecules with the same chemical formula but a certain different arrangement of atoms. Ethylone might be a positional isomer of butylone, but the regs are unclear. Eleventh Circuit: All right, we're "just going to have to science the heck out of this." Defendant's conviction is vacated. Deference to the DEA's view of the regs doesn't belong in a criminal case. Instead, we remand for an evidentiary hearing on the scientific community's definition of "positional isomer." Concurrence: "Criminal statutes and regulations need to be written in a way that allows a reasonable person to understand what is prohibited."
  • Allegation: Birmingham, Ala. school resource officers have a nasty habit of pepper spraying and then failing to help decontaminate students. District court: That calls for a change in policy. Eleventh Circuit (over a partial dissent): Reversed. By our calculation, students have a 1.6 out of 10,000 chance of being unconstitutionally sprayed. That's not frequent enough for class action plaintiffs to have standing. And we don't need to decide if there's a constitutional violation; it wasn't clearly established that the alleged conduct was unlawful; qualified immunity applies. (A handful of individual students can keep the $5k damages awarded to them, though.)
  • Plaintiff is such a prolific inventor that the Patent and Trademark Office employs 14 examiners just to review his applications, some of which have languished for decades. Seeking to take some work off their plates, the PTO enacts new regulations that basically allow them to sit on his applications forever, with no right of appeal. Arbitrary and capricious? District Court: No need to answer that, because I don't have jurisdiction. Federal Circuit: Actually, you did. No harm, no foul, though, because he loses anyways. (H/t: Andrew Trask.)

Back in 2013, Adams County, Penn. law enforcement caught Justen Irland waving a gun during a road rage incident. After he pled guilty to disorderly conduct, law enforcement tried to forfeit his legally owned gun—even though it had no express statutory authority to do so—through so-called common law forfeiture. This week, the Pennsylvania Supreme Court ruled that law enforcement could not forfeit the gun since there is no legal basis for common-law civil forfeiture in Pennsylvania. Click here to read IJ's amicus brief urging the court to consider law enforcement's incentive to seize property (it keeps 100 percent of forfeiture proceeds).

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  1. Drug suspect flees Tupelo, Miss. police and hides in a crawlspace. K9 officer orders him to come out and then releases a dog, which bites the suspect until he flees the crawlspace, tackles the officer, and nearly beats him senseless before the officer shoots four times, killing the suspect. The Fifth Circuit rules that qualified immunity is warranted.

    Assuming for the sake of argument that the account of what happened is accurate, shouldn’t qualified immunity be unnecessary?

    1. Because QI protects against even needing to go through discovery, this would be disposed of on summary judgement (if QI were not a thing and the facts were not plausibly contested) but QI stops a case earlier than that.

      1. So the fuck what? QI should not be available in cases where the actions of the police were straight up legal.

        1. Umm, QI is more than an affirmative defense (as self-defense is in most states), it is immunity from suit itself. The cases where the action was legal (and even justified) are the cases where QI is most needed.

        2. You think it should be easier for a cop to get a case dismissed when his conduct was questionable (or even quite probably straight up unconstitutional) than when his conduct was clearly constitutional? That seems odd.

  2. That case involving the guy who clocked Rand Paul is interesting.
    The gov’t is probably right on the law, but I’m wondering why they are appealing.
    Defense attorneys are going to be even more wary of plea agreements now.

    1. The DAs expected 21 months, not 1 month. I’m pretty sure that’s why they’re appealing.

      1. I’ve been a prosecutor both and a defense atty.
        I’m familiar with caps.
        The prosecutor failed to put a floor on the potential sentence and got burned.
        Appealing now may not be wise in the long term.

      2. How did I know before even looking it up that the “judge” who sentenced him to only 30 days (obviously because the victim was a Republican) would be a female appointed by either Klinton or Obongo?

  3. With the eleventh circuits QI decision, my biggest complaint is they decided they didn’t need to examine it the conduct was unlawful.

  4. On the Louisiana erotic-dancer law, this business of treating 18-20 year olds as adults when the government finds it convenient, and as children when the government find that desirable, really needs to be put to bed with a shovel. IANAL, so maybe the courts are required to accept whatever two-faced view of 18-20 year olds that the other branches of government come up with, but… Will no one think of the Schrodinger’s Children?

    1. Your premise is based on an assumption that people reach maturity in all contexts simultaneously. (Never mind the assumption that everyone reaches it at exactly the same age.)

      There are some areas where it’s fairly uncontroversial that people who are under 18 are fully capable of deciding for themselves. We allow most 6-year-olds to dress themselves in the morning, for example.

      On the other hand, some things are reserved for people who’ve reached arbitrary milestones beyond adulthood. The age at which people can buy and consume intoxicants legally, for example, is often higher than the age of majority, and Constitutionally, the age to become Senator or President is not the same as the age to vote for same.

      I lived for most of my life in a state that constitutionally protected the rights of nude dancers to dance nude, and turned back a couple of attempts to amend that right away.

  5. I have to say that while I sympathize greatly with the poor kid shot while truant in the Virgin Islands, I can’t help but think the uptick it should cause in school attendence will be beneficial in the long run.

    Parenting can be very difficult and a cadre of marshals ready to respond with deadly force to juvenile insubordination provides a welcome toolkit to beset parents.

    1. Learn or die! Hmmm. Can’t we start with “the beatings will continue until morale improves” before escalating to outright killing?

      1. Well, he’s just crippled, so is that okay?

    2. “I have to say that while I sympathize greatly with the poor kid shot while truant in the Virgin Islands, I can’t help but think the uptick it should cause in school attendence will be beneficial in the long run.”

      My kid was a college student, on the college schedule that was different from the high-school calendar, at 16. I’m going to think that it wouldn’t have improved her education if she were afraid to go outside for worry of being shot at by cops.

  6. I think my school district has 0/40000 kids getting sprayed. What’s going on in Birmingham?

    1. I just noticed they specified “unconstitutionally sprayed”, so that looks even worse.

  7. In the context of prisoners’ rights, “‘neutral’ does not require that a regulation be divorced from the speech’s content.

    WTF? So it’s fine to specifically prohibit a prisoner to give an interview because he wanted to talk about a prison riot?

    1. “So it’s fine to specifically prohibit a prisoner to give an interview because he wanted to talk about a prison riot?”

      If (and it’s a pretty big if) granting such interview opportunities is detrimental to the purpose of incarceration or the administration of the prison(s), sure.

      Another non-content-neutral prohibition: Keeping prisoners from earning money by virtue of their crime. So O.J. can write “If I Did It” because he was found not guilty. But he wouldn’t have been allowed to sell “Why I Did It” if he’d been found guilty.

  8. Fun fact: North Dakota is the only state that does not require voters to register. You just show up with ID, which must have a residential address on it, and vote.

    That might be technically true. But in Minnesota you can register and vote at the same time if you show up with your driver’s license (or nearly any photo ID and a utility bill showing your address). In fact, you don’t even need that. A registered voter from the precinct can vouch for you and you’ll be allowed to register and vote. So we’re even more liberal than North Dakota.

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