Short Circuit: A Roundup of Recent Federal Court Decisions

Zestimates, Big Girl Panties, and Scabby the Rat

|The Volokh Conspiracy |

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

  • Suppose a La Plata, Md. public school teacher compelled a Christian student to write part of the Shahada: "There is no god but Allah and Muhammad is the messenger of Allah." First Amendment violation, right? Fourth Circuit: It was homework for a world history class. About what Muslims believe. Judgment for the school.
  • Allegation: Rumor spreads at Sterling, Va. warehouse that an employee was promoted only because of her sexual relationship with a higher-ranking manager. The highest-ranking manager at the facility helped to spread the rumor, barred her (but not her paramour) from attending a mandatory all-staff meeting where the rumor was discussed, and told her he'd no longer recommend her for promotions. She's later fired. Fourth Circuit: Because "traditional negative stereotypes regarding the relationship between the advancement of women in the workplace and their sexual behavior stubbornly persist in our society," she might very well have suffered harassment because she is a woman. The case shouldn't have been dismissed.
  • Using Sherlock Holmesian powers of deduction (unbalanced tire, worn lug nuts, nervous driver), police officer suspects drug trafficking is afoot. He touches the suspicious tire, which feels (and is) suspiciously full of meth. Fifth Circuit: And under the revived property rights theory of the Fourth Amendment, touching the tire was a search (but the driver is still going to jail).
  • Female nursing assistant at Pascagoula, Miss. assisted living facility is daily subjected to lewd and sexually violent behavior by a dementia patient. When she voices concerns to facility higher-ups, they invite her to "put [her] big girl panties on and go back to work." After she's fired, she brings Title VII suit against the facility. And her hostile work environment claim can go to trial, says Fifth Circuit.
  • Vacant-property owners in Saginaw, Mich. must register their properties with the city; the registration form states that an owner must allow the city to enter her property if it becomes dangerous. Does this system unconstitutionally require an owner to waive her Fourth Amendment rights? Sixth Circuit: Nope. The Fourth Amendment allows warrantless searches of dangerous buildings provided there's a pre-search hearing to determine whether the building is dangerous.
  • Upon returning to his Detroit, Mich. basement apartment, man finds it ransacked. Storming upstairs, shouting expletives, he encounters a stranger who shoots him three times. Yikes! Turns out it was a federally deputized member of the Detroit Fugitive Apprehension Team task force, on the hunt for a fugitive. Man sues task force members for excessive force and other alleged misdeeds. Officers: Actually, we shot him only after he pulled his own gun on us. Which, says Sixth Circuit, is precisely the kind of factual dispute that must be resolved at trial. No qualified immunity.
  • In 2013, a chaplain with the Michigan Department of Corrections tells Muslim inmate that he can't attend Eid al-Fitr, a religious feast marking the end of Ramadan. Chaplain tells inmate he's the wrong kind of Muslim and can attend the feast only if he changes his religion. Access to the feast is allegedly denied again in 2014. Inmate sues, asserting First and 14th Amendment violations. Qualified immunity? No, says Sixth Circuit—not least because a court in a different case "had already issued a binding order enjoining these defendants from preventing Muslim inmates to participate in Eid." And "reasonable officials follow court orders."
  • Pro-life sidewalk counselors are prohibited from approaching within eight feet of any person in the vicinity of Chicago abortion clinics if their purpose is to counsel, provide literature, or protest. Seventh Circuit: Well, the law is nearly identical to a Colorado law upheld by the Supreme Court in 2000, and even though that case is hard to reconcile with more recent Supreme Court cases, it has not been overturned. The law stands.
  • "Scabby the Rat has returned." Scabby—a giant balloon rodent evoking a Nutcracker nightmare—often pops up at union protests, including one in Grand Chute, Wis. in 2014. That is, until the town ordered deflation under the local sign code. Seventh Circuit: Which was OK. The sign code was content neutral and enforced fairly. (Real hypo from trial: Would Scabby count as a holiday decoration if he had a Santa hat?)
  • Drug defendant is shackled during pretrial hearings because that's what Central District of Illinois court security thinks is safest—as a blanket rule, for every detained defendant. Which means chained wrists, chained ankles, and a chain between them. The defendant, on interlocutory appeal: The judge can't do this without deciding that I, specifically, am dangerous. Seventh Circuit: Meh. Come back after you're convicted. Dissent: This indignity diminishes the courts. And how is he going to get effective review later?
  • Website Zillow uses an algorithm to generate "Zestimates" of home values based on the home's location, the selling price of nearby parcels, and other factors. Given the 100 million properties for which Zillow creates Zestimates, the company does not inspect whether houses have special features that might make them more (or less) valuable than the estimate. Plaintiffs, dissatisfied with the Zestimates on their homes, sue Zillow, claiming that the Zestimates have made it more difficult for them to sell the homes at their real value. Seventh Circuit: Zout of luck. Zestimates "are opinions, which canonically are not actionable" under the deceptive trade practices law the plaintiffs invoked.
  • Rarely do an opinion's opening sentences double as a Short Circuit entry. The Seventh Circuit shows everyone how it's done: "Is it reasonable for officers to assume that a woman who answers the door in a bathrobe has authority to consent to a search of a male suspect's residence? We hold that the answer is no."
  • DHS Secretary suspends various laws to permit replacement of segments of border fencing (or, y'know, whatever you prefer to call such physical barriers). Ninth Circuit: Which was entirely within the Secretary's statutory authority.
  • Golden Beach, Fla. police officers submit sketchy timesheets: They might be getting paid twice for the same hours. They're arrested for fraud, but eventually the charges are dropped. They sue. Was the application for the warrant to arrest them deliberately missing exculpatory info? Eleventh Circuit: Doesn't matter. The info wasn't that exculpatory.
  • Two African-American couples were murdered in Walton County, Ga. in 1946, as a large crowd of people looked on in what is considered to be the last mass lynching in American history. A grand jury was convened, but no one was ever charged even after 16 days of witness testimony. Seven decades later, can the transcripts be released to a historian? Eleventh Circuit: Yes; though grand jury records are usually kept under seal forever, these can be released as a matter of exceptional historical significance. Dissent: The rules clearly prohibit the disclosure of these materials. Imagine the harm that might come to descendants of the suspects, witnesses, and grand jury members when all is revealed.
  • And in en banc news, the Ninth Circuit will reconsider a ruling that the Second Amendment prevents Hawaii County, Hawaii from banning the open carry of handguns.

Last month, the Food and Drug Administration closed a public comment period over whether it should continue to allow plant-based products to use words like "milk" and "cheese" in their labeling. But such a crackdown would "confuse consumers, harm small businesses across the country, and raise serious First Amendment concerns," IJ argued in a submitted comment.


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  1. The 9th just can’t let any pro-gun rights ruling stand.

    1. Alright, what happened to the *real* ARWP? Did he finally lure some rent-a-boy to his closet?

  2. “The Fourth Amendment allows warrantless searches of dangerous buildings provided there’s a pre-search hearing to determine whether the building is dangerous.”

    ?? Why don’t they just issue a warrant at the hearing?

    1. Because the hearing officer doesn’t have the power to issue a warrant? Just guessing. But it does seem plausible that the hearing’s conclusions would be a pretty strong basis for a warrant.

    2. Because a warrant requires probable cause of a crime, not of a dangerous building?

      1. What’s an administrative search warrant?

      2. Camara v. Municipal Court 387 U.S. 523 (1967) held that building code compliance inspections in non-exigent situations do require either consent or a warrant, but that

        Probable cause upon the basis of which warrants are to be issued for area code-enforcement inspections is not dependent on the inspector’s belief that a particular dwelling violates the code but on the reasonableness of the enforcement agency’s appraisal of conditions in the area as a whole. The standards to guide the magistrate in the issuance of such search warrants will necessarily vary with the municipal program being enforced.

  3. “had already issued a binding order enjoining these defendants from preventing Muslim inmates to participate in Eid.”

    Judge Cole needs to work on his English. You can require someone “to participate” in something, but you can’t prevent anyone “to participate.”

    The best you can do is “prevent them from participating,” or order them “not to participate.”

    Still, he got the ruling right. The prison officials were just being assholes.

    1. Hey, don’t malign assholes like that. Assholes are very useful, anyone who doesn’t have one is fully of shit. 🙂

  4. Using Sherlock Holmesian powers of deduction…

    Well that’s way better than the usual “watch me pull a rabbit out of my ass” powers.

    1. How many Inspector Lestrades have searched unbalanced tires with worn lug nuts and found nothing but hot air inside? And how many victims of such searches have declined to protest the possible 4th Amendment violation because it’s a hassle and because they don’t want to paint big “Kick me, cops. I disrespected your Authoritah” signs on their backs?

      There’s a survivorship bias that makes these sorts of searches seem more reasonable and appropriate than they actually are.

  5. Storming upstairs, shouting expletives, he encounters a stranger who shoots him three times. Yikes! Turns out it was a federally deputized member of the Detroit Fugitive Apprehension Team task force… No qualified immunity.

    That’ll teach the greenhorn deputy. Go big or go home.

  6. The guy whose home was ransacked should recover even if he did pull a gun.

    It’s up to police officers to not look like burglars when serving a warrant. If they don’t, and they get a gun pointed at them by the lawful occupant who thinks there are armed invaders in their hiuse, that’s the police’s fault, not the occupant’s.

    1. He was acquitted of every charge, apparently because the jury agreed that the cops lied about what happened. So I doubt he pulled a gun.

      Also it sounds like the cops were deliberately destructive in their search of the house.

  7. Write out the Ten Commandments. It’s homework for a world history class. About what Jews and Christians believe.

    Does it pass Constitutional muster? Or does it send liberal judges into a tizzy?

    What if an atheist instead of a Christian had brought the lawsuit? I’d bet dollars to doughnuts the court would have ruled differently. Can’t have those uppity Christians win a case.

    1. Use government money to upend a cross in urine: It is good to present counter-opinions to educate them.

      Make kids recite Muslim core statements: it is good to educate the kids, that’s all it is.

      Make kids recite Christian core statements: imposition of religion on atheist kids, nope!

      Fwiw no government should be doing any of this. Then you don’t have to pick and choose your situational ethics values based on a non-existent war you are not engaging in.

  8. The FDA needs to be told where to head in over the Almond Milk issue. Almond Milk, so described, dates to the middle ages. It is mentioned in a book published in 1636.

    1. Or how about coconut milk? Or dandelion milk?

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  10. One wonders how the 5th CIrcuit would have handled the patient’s lawsuit if the nursing home had sided with the nurse.

    Perhaps nursing homes just get struck by lightening in these cases and just have to pay out no matter what. The 5th Circuit didn’t consider any possible duty the nursing home might have owed to the patient in this case. There is no reason to assume that, we’re they to decide a case filed by the patient, they would have reason to consider any possible duty the nursing home might have owed to the nurse. The possibilty of Incompatible, irreconcilable duties may simply not be the law’s or the judocoary’s problem.

    1. What? The nursing home owes a duty to dementia patients to provide them with sexual harassment targets?

      I don’t know of any law, regulation or case that so provides. In fact, they go the other way.

      1. Well, the ADA prohibits discrimination against disabled people. And just because the staff doesn’t like the behavior disability induces doesn’t mean it isn’t protected. A classic example is a fancy restaurant refusing service to a customer who drools. The fact that the staff finds the behavior disgusting and revolting isn’t beside the point. It is the point. The ADA is there precisely to protect disabled people from oversensitive staff who find their behavior disgusting and revolting. It exists precisely to interfere with the automatic application of ordinary behavioral norms to behavior that results from disability.

        What makes this different, for ADA purposes, from the restaurant waitress who claims sexual harassment because the customer drools at her?

        For ADA purposes the duty is entirely to the patient, not the staff. Staff dislike of behavior induced by disability is the very definition of discrimination and failure to accommodate.

        It could very well be the case that acting on the nurse’s complaint, at least in a way that lessens care given the patient, results in a failure to accommodate the patient’s dementia that violates the ADA. The nursing home could well be liable to both.

  11. The 4th circuit case is not as clear to me.

    Suppose a school were to stage a Hindu ceremony where the students were expected to bow down to a statue of Ganesha as part of the learning experience.

    It seems to me there is a line between learning about a religion and participating in it. I don’t think the 4th Circuit did a very good job of articulating that line. And it doesn’t seem to me that the fact that participation “isn’t real” from the school’s point of view solves the problem.

    Perhaps it’s a matter of phrasing, or distinguishing between answers like “Muslims believe x” and “x” as the expected answer to “what do Muslims believe.”

    Let’s look at it this way. Could a school impose a test in which it asked students to recite the pledge of allegiance as proof they know it? If it can, a school could easily circumvent precedent prohibiting forcing recitation simply by claiming to be teaching ABOUT the pledge of allegiance, rather than teaching the pledge itself.

    I think more care is needed to ensure things can’t be that easily circumvented. A student has to be able to respond to a question in a way that makes it clear to an objective 3rd party that the student’s answer does not reflect what the student believes.

  12. I’ll shorten my answer. Imagine a school American culture program with a segment on the pledge of allegiance. Could the school require a student to recite the pledge as part of this program? In particular, would the fact that the school is teaching ABOUT the pledge, and not the pledge itself, control the analysis?

    And if it does control, why can’t the school teach ABOUT the pledge, and offer a test on this cultural learning material, every day?

  13. The 6th Circuit Bivens case represents a small data point in a sea change in the law. A decade or so ago, it would have been routine for judges to disregard an uncorroborated statement by a plaintiff in a lawsuit against police. Federal courts would simply believe the police; a suspect would simply be assumed to be lying. Here, however, the 6th circuit presented a suspect’s uncorroborated word as potentially being as believable as a police officer’s. This represents a remarkable change in the law.

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