Short Circuit: A Roundup of Recent Federal Court Decisions

A blind websurfer, an accidental No Fly List designation, and a threat-inducing photocopy.

|The Volokh Conspiracy |

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

Friends, back in 2016, the Oregon engineering board fined Mats Järlström, who has a degree in electrical engineering, for calling himself an engineer. The board maintained that only licensed, board-certified engineers could call themselves "engineers" and that all the many software engineers, sound engineers, train engineers, and other folks who use the term to describe their occupation were breaking the law. Last month, a federal judge ruled that the government cannot redefine the meaning of common terms. Read more at Vice or check out Scott Adams' take on what all this means for popular cartoon engineer Dilbert.

  • Drug cartel hit squad attacks ICE agents traveling through central Mexico, an attempt to steal the agents' armored car. One agent is killed; one is seriously wounded. Mexican officials arrest members of the hit squad, including defendant (who didn't participate in attack on ICE agents). He pleads guilty in U.S. to RICO violation, among other things. District court: He gets 12 years in prison. D.C. Circuit: Could be that, in calculating his sentence, the district court considered defendant's murder of a rival cartel member (in Mexico) as relevant conduct, which it shouldn't have. Remanded for resentencing.
  • In 2017, President Trump tweeted that transgender individuals would no longer be allowed to serve in the military. (The gov't now says some can; plaintiffs say there is still a total ban.) Four district courts issued nationwide preliminary injunctions barring the military from enforcing the policy while lawsuits challenging it proceed. D.C. Circuit: One of those injunctions is now dissolved; courts should defer to military officials' "considered professional judgment."
  • Pretrial detainee at Philadelphia federal prison delivers notes between two members of drug gang (that had murdered six family members of witness against the gang). But first the detainee gives the notes to prison officials, who photocopy them. Yikes! Officials goof up; the detainee delivers a photocopy, rather than the original note, tipping off the gang. The detainee receives threats, makes officials aware of them. Nevertheless, he's placed in yard with the gang members, who beat him severely. Third Circuit: No qualified immunity for prison officials who allegedly failed to protect the detainee. But he can't sue over repeatedly being put in solitary confinement.
  • Blind websurfer sues Department of Labor's Federal Credit Union. Allegation: Credit union's website violates the Americans with Disabilities Act because it's not adapted to screenreading devices that blind people can use to navigate websites. Fourth Circuit: Regardless, this particular blind websurfer lacks standing. The credit union's services, described on its website, are available only to employees or former employees of the Department of Labor or their families. The plaintiff fits none of those criteria, so his inability to navigate the website is too abstract a harm.
  • Illinois officials sue Chicago officials over police department's use-of-force policies and practices. The parties start to negotiate a consent decree, which the local chapter of the Fraternal Order of Police condemns: It's a "potential catastrophe" that could threaten the chapter's collective bargaining agreement. Over the next year, state representatives meet with the chapter, assure it the decree won't conflict with the CBA. Surprise! That might not be true. Can the chapter now become a party to the lawsuit? Seventh Circuit: Nope. Shouldn't have waited so long to try to intervene.
  • Seventh Circuit (2017): When the state takes custody of seemingly abandoned bank accounts, the rightful owner can get their funds back, plus interest, less reasonable custodial fees. On remand, the district court says interest is available to only those property owners whose funds were earning interest when the state took them into custody. Seventh Circuit (2019): Again: A property owner is entitled to income that their property earns, which doesn't depend on what it was earning in the owner's hands before the state took custody.
  • In 2004, an FBI agent accidentally puts a Malaysian grad student on the No Fly List. (In the agent's defense, the form is not intuitive). After a decade of litigation, the gov't concedes it knew all along the student was never a threat to national security. Nevertheless, she remains barred from the country. Ninth Circuit (en banc): The gov't's conduct has been "ethically questionable." And the student's attorneys are probably entitled to more than the $450k the district court ordered the gov't to pay. Complete victory on one of the student's claims (procedural due process) doesn't preclude fees for other claims her attorneys raised (First Amendment and equal protection) that the district court didn't reach.
  • Upon receiving an anonymous tip alleging child abuse, social worker visits Colorado Springs, Colo. preschool, buttonholes 4-year-old girl, strips her, and (over child's objection) photographs her body—then falsely denies doing so when later confronted by the child's mom. An unconstitutional search under the Fourth Amendment? Maybe, says the Tenth Circuit. Or maybe not. Don't know, don't care. Qualified immunity. Dissent: The social worker "was never aware of facts that could have justified such an intrusive search of a four-year-old girl."
  • In 1970s, radical African-American activists squat in Philadelphia home; they pace around the roof with firearms and hold forth with loudspeaker, which annoys the neighbors. In 1978, during massive police operation to evict the group, an officer is shot in the back of the neck. (There is speculation the officer was hit by friendly fire.) Nine activists are convicted in his death. Two die in prison; two have been released on parole; and two more are suing over being denied parole. Eastern District of Pennsylvania: The parole board needs to turn over victim impact statements to the activists; the statements could shed light on whether the board's reasons for denying parole were arbitrary or pretextual.
  • According to sources, Russian agents placed polarizing ads on Facebook targeted at Baltimore residents in advance of the 2016 election. In response, Maryland legislators pass new campaign finance law requiring online platforms to post searchable index of data on purchasers, prices of political ads on their websites. Maryland District Court: No way the law survives strict scrutiny. Among other things, it applies to much smaller platforms than Facebook, and it won't remedy the harm it's meant to address.
  • In effort to crack down on short-term home rentals, NYC officials pass ordinance requiring Airbnb and HomeAway to turn over "breathtaking" amount of data to the authorities each month, including rental hosts' names, addresses, pricing, and advertisements—irrespective of whether there is cause to suspect a host is violating relevant health and safety laws. Southern District of New York: Could be the law violates the Fourth Amendment. No enforcing it while the suit proceeds. (More via SDNY Blog.)
  • Virginia's policy of suspending drivers' licenses for unpaid fines and fees—a policy that has resulted in hundreds of thousands of such suspensions—likely does not comport with due process, says the Western District of Virginia, as it appears drivers get insufficient notice of and opportunity to challenge suspensions. Moreover, the policy is counterproductive; if people are too poor to pay, making it harder for them to get to work harms the gov't's fiscal interests. (Last month, the governor announced plans to cease the policy.)

Over 130,000 students in Florida are able to attend the schools of their families' choice thanks to a pair of programs enacted over a decade ago. Opponents say these students must all be sent back to their assigned public schools because the programs violate the Florida Constitution's requirement that the state provide an "adequate" and "uniform" system of public education. Today, the Florida Supreme Court refused to strike down the programs, ruling that in nearly a decade of litigation, opponents never adequately preserved their constitutional arguments. The dissent: We should get to the merits anyway. The majority: No, we shouldn't. That would be "an approach that not so subtly attempts to drag politics into judicial decision making." Affirmed.

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

  1. Moreover, the policy is counterproductive; if people are too poor to pay, making it harder for them to get to work harms the gov’t’s fiscal interests.

    Since when do the courts get to review whether or not laws are a good idea? On that basis, I’d expect to see courts all over the country overturning most of the laws passed.

    1. It’s probably part of the Rational Basis argument. How that crap got invented out of whole cloth I will never understand, beyond the usual FYTW.

    2. The Virginia ruling was on a motion for a preliminary injunction, which involves assessing the likelihood that the plaintiff will prevail on the merits. About the procedural due process claim the court said:

      In making determinations about the sufficiency of process, Mathews requires the consideration of three factors: (1) the private interest involved; (2) the risk of erroneous deprivation through the procedures used; and (3) the government’s interest.

      referencing Mathews v. Eldridge, 424 U.S. 319, 335 (1976). The last of these led to consideration not of whether the law was a “good idea” but whether it was effective, reasoning that the government’s interest in getting people to pay fines doesn’t support them continuing to employ means of coercion that don’t work. So, maybe less of a judicial overreach than you thought.

      1. I never understood, from a public policy prospective, why legislatures and Congress try to make it difficult for people who are convicted of low level crimes to maintain jobs and be productive members of the community. In some states you can lose your drivers license for offenses not even involving the use of an automobile. Simple drug possession charges, drinking underage, and even two or more minor traffic tickets in the course of a year are enough to lose a license for upwards of a year. If the government wants to heap fine upon fine on these types of cases, how does it expect those who are sanctioned with these fines to pay them off if they can’t find work or lose their job due to the inability to commute there?

        1. While I agree that non-driving related offenses probably should not be punished with driving-related penalties… Look at it from a different perspective: How else is the government going to punish a lawbreaker?

          Basically, the government can only do a small number of things to the average person:
          1) They can take his stuff (fines and fees in general, or revoking granted privileges.. like a Driver’s License.)
          2) They can imprison him
          3) They can kill him.

          Which of these is best for those people?

          1. In reply, it is the court’s discretion to impose what is considered fair under the circumstances. Do you really want to bury someone over a relatively minor crime?

            1. My point is that the courts are very limited in what they can do. Taking the driver’s license is about the least penalty the state can apply. Or maybe you think they should be fined for not paying fines?

              And no, doing nothing is not an option. Selectively enforcing the law is a great way to destroy all trust in the law.

              1. “Selectively enforcing the law is a great way to destroy all trust in the law.”

                Selectively enforcing the law is a necessity, as the government has created far more law than it has the resources to reasonably enforce.

                1. Prosecutorial discretion is already abused to protect political favorites, ranging from parking tickets to classified information mishandling.

                  Adding to that the case where people who have already plead guilty, and been sentenced, and allowed to have their sentences effectively reversed because they are sympathetic? It’s yet another level of abuse, ripe for corruption.

                  Like the BS that is qualified immunity, we should be working to reduce the amount of corruption in the legal system, not adding to it.

                  1. “Like the BS that is qualified immunity, we should be working to reduce the amount of corruption in the legal system, not adding to it.”

                    The most effective way to do that would be to reduce the scope and power of the legal system by reducing the number of laws.

                    But you are probably one of those idiots who imagines that the answer to government failure is MORE government.

            2. Every minor crime has the potential to result in the death of the perpetrator. Just ask that guy arrested for selling single cigarettes in NYC. Oh wait. You can’t. the cops killed him.

        2. I mean, I don’t disagree at all. The list of offenses is very large and the penalties often out of proportion.

          At the same time, what is the government to do if a citizen routinely fails to pay (say) speeding tickets? Unless the answer at some point involves something punitive enough to compel payment, eventually the speeding ticket becomes meaningless. The claim of “well, if we suspend their license they won’t be able to pay” might be true, but is a negative claim in search of a positive alternative.

          1. There are things like community service. Maybe they can’t pay a $100 fine but perhaps they can do something like pick up cigarette butts from the sidewalk, paint over graffiti on public property, or fill out even more pointless forms at the DMV for a dozen hours. Sure, there are probably some unions whose nose might be put out of joint by it but hey, joke ’em if they can’t take a fuck.

            1. And if they refuse to do those things?

          2. First, this has nothing to do with speeding tickets per se. It’s any unpaid criminal fine assessed by the government. So we’re not punishing them for bad driving; we’re punishing them for not paying a fine.

            But second, you misunderstand the issues here. There is nothing punitive enough to compel payment if the person is unable to pay. What’s being challenged here is not about suspending people’s licenses for refusing to pay fines, but suspending the licenses of people who can’t pay fines. (More specifically, doing so without giving them a chance to establish that they can’t pay the fines.)

            1. Every person in this suit DID pay their original fines – but not the additional fine for not paying the first fine (aka, the license reinstatement fee).
              In addition, it looks like most of them also were participants in a state-run repayment and financial management program designed to give them a personally tailored way to pay back their debt.

              So, saying they can’t pay is false. Notice many of the complaints are about the inability to do other non-essential tasks – like participate/watch children’s sports.
              This is about hardship, yes… but they could have avoided it entirely by not breaking the law, or by paying the fines in the first place.

              1. Every person in this suit DID pay their original fines – but not the additional fine for not paying the first fine (aka, the license reinstatement fee).

                Not sure where you’re getting that from.

                So, saying they can’t pay is false. Notice many of the complaints are about the inability to do other non-essential tasks – like participate/watch children’s sports.

                No; that was just an example of the hardship caused by not having a valid driver’s license; it’s not a claim that the costs prevent them from affording the sports. You are mistaken. This case is about whether licenses can be suspended for failing to pay fines and court costs (not just reinstatement fees) without any inquiry into whether the people have the ability to pay.

      2. That’s not the problem. The problem is where the ruling goes on to the section where it “analyzes” the government interest. The Court decides on its own that the law regarding fines and fees for poor people is a bad idea, and therefore cannot be allowed.

        The government certainly has an interest in regulating driving, including suspending licenses. The government also has an interest in punishing violations and recouping law enforcement/court costs. These aren’t even challenged.
        But suddenly, when it becomes to people who are sympathetic to a judge, who confessed to doing exactly what they were accused of, and who admit to not paying the penalties (which were applied in a fair and neutral manner) it all becomes a non-interest? Because it isn’t wise to make it more difficult for people to pay their fees?

        You are right, though, that it is only a preliminary injunction, so it isn’t a decision, just a ‘maybe’.

        1. I still think the court is questioning the effectiveness of the law, not intruding on the legislative power to determine policy, I do agree though that effectiveness is not within the scope of rational basis review, and that is the level of scrutiny normally applied to due process challenges, so the ruling is vulnerable on that account.

        2. If the government interest were merely punishing people, this would be fine. But since the interest ostensibly also is (or at least includes) raising money, doing something to make it harder to raise that money is irrational.

  2. Judges and social workers are too stupid to know that you can’t undress and photograph children? Color me shocked.

    1. That’s mighty generous of you to presume they don’t know.

    2. She knew; that’s why she lied. I don’t understand how she got qualified immunity since she clearly knew her behavior was likely illegal.

      1. The modern “social worker” especially one who works for the government has been indoctrinated throughout the educational process that they are doing highly important work which involves “saving” children from horrible parents sort of like some kind of super hero. I’ve dealt with many in professional situations and their approach is generally brash with an attitude that “I am above the law because the protection of children is sacrosanct”.

        Abuses like this are a dime a dozen if you start hearing stories especially from poor or minority communities that just don’t have the resources to do anything about it.

        As for this case I gave it a quick skim and I think the QI analysis is dodgy. The fact that she lied should have been enough to deny her QI.

        1. Exactly. If you don’t know what you’re doing is wrong, you don’t need to lie about it.

      2. Because FYTW.

        It’s almost like the reasons for these qualified impunity cases write themselves……

      3. I didn’t get a chance to read it before, but here we go: ‘the law was not so “clearly established” as to “give Defendants fair warning that the taking photographs of portions of I.B.’s unclothed body required a warrant.”‘

        There was also the lying and not informing the mother at all, but just this is idiotic enough. It’s even noted that law enforcement and school officials can’t strip search and photograph children but also that no case involved social workers. Do they have some weird rights the others don’t? Apparently so.

        1. Not only that, since they didn’t actually decide anything the next perverted little tyrant will get off (pun intended) okay too.

        2. “It’s even noted that law enforcement and school officials can’t strip search and photograph children but also that no case involved social workers. Do they have some weird rights the others don’t?”

          No. The issue here is that rules for QI laid down by SCOTUS explicitly require precedent on-point to the specific facts of the current case for the “clearly established right” portion of QI analysis.

          1. I understand how QI works but I don’t understand why the court didn’t bother examining whether the social worker was wrong, unless they believed that they might have special rights that would make the inquiry futile.

            1. Because SCOTUS said they aren’t supposed to do that.

              By standing Supreme Court precedent, the lower courts MUST grant QI, unless a clearly established right was violated.

              By standing Supreme Court precedent, to say that a clearly established right was violated, there must be either Supreme Court or in Circuit precedent that previously held that the exact (to a high level of detail) fact pattern of the current case involved a violation of a clearly established right.

              1. In order for a Circuit Court to clearly establish the right for the first time, for a particular fact pattern, they have to explicitly continue the analysis beyond the point where they have already determined that QI must be granted. This is why you will get dozens of cases on the same facts before the Circuit Courts will break down and declare a fact pattern established for the next case.

              2. “Because SCOTUS said they aren’t supposed to do that.”

                First, SCOTUS said they were supposed to do it like that (Saucier). Then SCOTUS said they didn’t have to do it like that anymore (Pearson). Nothing stops courts from following the procedure outlined in Saucier and doing it like that.

    3. Also, great job protecting a child from mental damage from a traumatic sexual experience by giving her mental damage from a traumatic sexual experience.

      1. Great quote from the girl that would doom anybody but a social worker: “I don’t like it when she takes all my clothes off.”

    4. Parental rights have been all but eliminated in the US and we need a Constitutional Act to fix it. http://nymensactionnetwork.org/prra/

    5. It’s looking more and more like social worker is the perfect job for pedophiles to both contribute to society and get their jollies abusing children.

  3. I find it difficult to believe that a business reporting requirement violates the 4th Amendment. The law might be bad policy. But allegedly excessive business reporting requirements do not strike me as the type of harm the 4th Amendment covers. The 4th Amendment is not a general privacy law. Requirements to report business information are neither searches nor seizures, so they are not subject to 4th Amendment analysis.

  4. On the Philadelphia prison issue, giving the photocopy back instead of the original in a case like this is so egregiously and embarrassingly dumb I’m supposed the federal government had the nerve to take this to trial, let alone appeal. If they were them I would have been willing to pay a lot of settlement money to avoid making this kind of stupidity more widely known. The Streisand effect that comes with fighting and having something like this appear in a court of appeals opinion will make it even less likely that a prisoner will ever be willing to cooperate with authorities again.

    1. Why does the federal government care if it’s embarrassing? What are you going to do about it – start shopping at the other one?

      I’m not at all surprised when the government pursues/defends a stupid case. They are much more concerned about budgets and political standing than cost or embarrassment.

  5. D.C. Circuit: One of those injunctions [on transgendered military] is now dissolved; courts should defer to military officials’ “considered professional judgment.”

    WTF does that have to do with it? The issue is the senescent civilian tweeting nonsense while in his pajamas.

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