Short Circuit: A Roundup of Recent Federal Court Decisions

Inmate sterilization, a rodent infestation, and the return of dueling dinos.

|The Volokh Conspiracy |

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

In 2016, Hilda Brucker received a call from a Doraville, Ga. city clerk demanding she come to the court house immediately. There, a judge and prosecutor confronted her with photos of her driveway, which had cracks in the pavement and thus supposedly violated city code. Brucker had gotten zero notice or opportunity to correct the "problem," but she was still given a fine and probation. This week, a federal judge ruled that Brucker's suit, challenging Doraville's systematic violations of due process, can proceed. Read more here.

  • Feds: Affixing a bump stock to a semiautomatic weapon allows it to fire so rapidly that it essentially becomes a machine gun. And machine guns are illegal, so we can ban bump stocks—up to 520k of which must now be relinquished or destroyed. D.C. Circuit (over a dissent): No need to prevent the ban from going into effect while litigation proceeds.
  • Man purchases as much as 1,700 grams of heroin from a dealer over the course of several months. Surprise! The purchaser is a confidential informant. Does the dealer get the 10-year mandatory minimum for distributing 1,000-plus grams? The Third Circuit says no; each sale is a distinct offense, and the gov't didn't show that any single sale was for 1,000 grams or more.
  • In 1988, 17-year-old is convicted of murdering Lynchburg, Va. gas station manager. He became eligible for parole in 2005, but the board has declined to release him on 10 occasions. Fourth Circuit: It is not cruel and unusual for a parole board to decline to specifically consider age-related mitigating circumstances. Nor do the board's procedures (providing a hearing and list of reasons for denial) fall afoul of due process.
  • Jefferson Parish, La. chief deputy sheriff is convicted of tax fraud. Although his guidelines range is over two years, the judge gives him only probation. Did he get off too easy? Fifth Circuit: We defer to the sentencing decision. Concurrence: "[D]eference need not mask disagreement." The guy cheated on his taxes for 12 years, claiming deductions for things like an Alaskan cruise and 40k miles he never drove. Gov't officials shouldn't be treated better than average citizens. [Speaking of, n.b. majority footnote 1, telling the AUSAs to knock it off with mischaracterizing the record.]
  • Texas inmate threatens to commit self-castration or suicide if gender reassignment surgery is not provided. Does declining to provide the procedure inflict cruel and unusual punishment? Fifth Circuit: There's legitimate medical debate about the efficacy of gender reassignment, so withholding it isn't cruel, and no state in the country routinely provides it, so withholding it isn't unusual either. Dissent (sidestepping linguistic debate by using no gendered pronouns): The question isn't whether there's debate in general, but whether there's debate as to this inmate; the case should be remanded for more fact-finding.
  • Troubled man armed with a knife disregards Shreveport, La. officer's commands. He advances toward the officer, who initially gives ground but then shoots, kills him. Fifth Circuit: Qualified immunity. Video belies plaintiff's claims that the officer shot him at 30 feet (it was more like 10) and that the man was stumbling (he was advancing relatively quickly).
  • Seated, handcuffed mentally ill man spits on McKinney, Tex. officers. They take him to ground. His head hits a cabinet on the way down, opening a 5-inch gash that requires seven staples. Video belies an officer's report of the incident; he amends his report after watching the video. Fifth Circuit: There is no constitutional right to be free from false police reports. And while it's clearly established that slamming a subdued suspect into a car with enough force to break teeth is excessive force, it's not clearly established that slamming a cuffed detainee into a cabinet is.
  • Kentucky law outlaws abortion unless a doctor first performs an ultrasound and displays and describes the images to the patient along with playing audible audio of the fetal heartbeat. A First Amendment violation? Not at all, says the Sixth Circuit; the Supreme Court has said informed consent requirements like this are A-OK. Dissent: The Supreme Court has said no such thing; this is straightforward compelled speech that doesn't have the least bit to do with informed consent.
  • White County, Tenn. judge offers inmates 30 days off their sentences if they submit to vasectomies (for men) or contraceptive implants (for women). The program is swiftly terminated; inmates who were sterilized (or who agreed to be) are given their sentence reductions. Are inmates who did not agree to be sterilized also entitled to the 30-day credits? Plaintiffs have been released from jail, but their case is not moot, says two-thirds of a Sixth Circuit panel. They can petition for expungement 30 days sooner if they get the credit.
  • District court: There is no clearly established right for suicidal pretrial detainees not to be deprived of bedding and forced to sleep on a freezing concrete floor for several consecutive months in constantly lit, frequently noisy area—so qualified immunity for Montgomery County, Ohio jail officials. But the detainee can sue the county. Jury: The county isn't liable. Sixth Circuit. Affirmed.
  • Allegation: Lansing, Mich. police execute search warrants at plaintiffs' houses, wantonly damaging property and causing building code violations. Then they call in a code inspector, who deems the homes uninhabitable, which prevents cleanup for nearly a month and results in a rodent infestation in one house. Sixth Circuit: Plaintiffs failed to properly identify the individual officers involved, so qualified immunity. Some of their claims against the inspectors can go, however.
  • Under Seventh Circuit precedent, private companies are shielded from liability for the actions of their employees if the company is acting as an arm of the state. Seventh Circuit: And there's no need to revisit that here. Concurrence: But our precedent is problematic in cases where an individual employee may not have acted with deliberate indifference but a bunch of employees collectively did—for instance, a team of medical contractors failing to schedule an inmate's surgery promptly. Attorneys take note.
  • Cruise ship passenger slips on a step, breaks his arm. There was a "watch your step" sign, but the light illuminating it was out. Eleventh Circuit: And a jury should decide whether the cruise did enough to warn the passenger. Indeed, the "watch your step" sign itself is evidence of a problem. Judge Sutton, sitting by designation, notes his reluctance to dissent given that his home Sixth Circuit is "largely land-locked and exclusively fresh-water." (He dissents anyway.)
  • During a four-hour standoff at Birmingham, Ala. home, officers hear a power drill, are told by a hostage that the hostage taker is "doing something in a hole in the floor." Police lay siege, find a piece of plywood hastily screwed to the floor. Prying it up, they find 31 firearms in the crawlspace, leading the hostage taker to be charged as a felon in possession. A Fourth Amendment violation? Eleventh Circuit: For all the cops knew, there was another hostage down there, so the search was a reasonable response to exigent circumstances. Dissent: Could there have been a hostage down there? Yes. Did the cops have probable cause to believe that? No.
  • Allegations: Man is arrested for driving under the influence at the scene of an apparent car accident. When booked, he says he's "all busted up from [a] car wreck." Despite spending the night moaning, crying out in pain, and informing Covington County, Ala. jail guards that he is "dying," he is told to "shut up" and receives no medical care until morning. After collapsing and spitting up blood, he dies of internal bleeding on the way to the hospital. Eleventh Circuit: That does sound like "deliberate indifference" (if it's true). No qualified immunity.
  • Massachusetts woman flees to Florida to get away from her family. She's arrested, pleads guilty to two misdemeanors related to using a false name. Can the state forfeit her Cadillac Escalade, which she registered under the false name? Florida appeals court: That might be grossly disproportionate to the gravity of her offense. See Timbs v. Indiana.
  • And in en banc news, the Ninth Circuit will not reconsider a decision requiring charities to turn over lists of their donors to California officials, despite district court findings that the state's cybersecurity is abysmally porous, that the plaintiff's donors have been targeted with death threats, and that the information has never actually been used in an enforcement proceeding. Five judges dissent from denial. (We discussed a similar New York law on the podcast.)
  • And in further en banc news, the Ninth Circuit will not reconsider its decision that Boise, Idaho's ban on homeless people sleeping outside is cruel and unusual when there is no access to alternative shelter. A concurrence castigates "dissentals" that "read more like petitions for writ of certiorari on steroids, rather than reasoned judicial opinions." One dissental discusses the circuit split and trots out a vivid parade of horribles, while another explains the view that the Cruel and Unusual Punishments Clause does not impose substantive limits on what conduct a state may criminalize.
  • And in even more en banc news, the Ninth Circuit will reconsider its decision that fossils— from two dinosaurs that remain intertwined after a duel to the death 66 million years ago—belong to the owner of the mineral rights rather than the surface estate.

Do you live in Dallas? Know someone who does? IJ will be hosting a panel discussion on civil forfeiture at Old Parkland on April 16. It's not just lawyers talking! We'll have two of our clients whose money was seized—a nurse who was carrying her savings to start a medical clinic in Nigeria and a man who was escorting a Christian rock band on a tour where they were raising money for charity. IJ President Scott Bullock will also be on hand to discuss our unanimous victory in Timbs v. Indiana and our strategy challenging forfeiture in the months ahead. The event is free, but we ask that you RSVP by April 10 to ensure your spot.

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

  1. I doubt we will see a picture of dutiful citizens waiting in line at the local ATF office, going to turn in their bump stocks. Seriously, though, nobody knows who has them, and you could just trash it yourself, *if* you felt like complying, so after the ban there will likely still be half a million of them in circulation.

    1. And of course, if the court rules that the ban was improper, they’ll say it was moot, because the ban wasn’t stayed, so anyone who still has them had so illegally! Great country we have here.

      1. I doubt it. If it’s unconstitutional, you either get your bump stock back or can sue for compensation under the FTCA.

        1. Or sue in the Court of Claims.

          1. I’m guessing that the filing fee exceeds the cost of a bump stock, making this not a great remedy.

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  2. “Seated, handcuffed mentally ill man spits on McKinney, Tex. officers. They take him to ground. His head hits a cabinet on the way down, opening a 5-inch gash that requires seven staples….it’s not clearly established that slamming a cuffed detainee into a cabinet is” unconstitutional.

    All you opponents of qualified immunity need to recognize that the cops had only a *split second* to decide whether to attack that handcuffed prisoner.

    1. And if because established, the next case would involve cops slamming a handcuffed detainee into a table opening a gash requiring eight stitches…

    2. Without qualified immunity, cops won’t ever slam mentally ill folks heads into various dangerous objects! They’ll refuse to investigate even the smallest of crimes and society will collapse!

      1. Like it did before unqualified immunity. Remember those roving Mad Max style bands of bandits before the courts saved us by inventing it?

        1. In fairness, my sense is not that the pre-qualified-immunity era was a golden age of prisoners winning big judgments after the police beat them up. In those days, I think, you got beat up and if you complained, you would be informed that your clumsiness in falling down the stairs was not the officer’s fault.

          (that said, the ‘slamming into *this particular object* isn’t clearly established’ reasoning is absurd … there are a lot of varied objects out there. Merely finding an object not yet on the disallowed list shouldn’t excuse the slamming, to put it mildly.)

          1. It’s not worth wasting your time attacking the logic as nonsensical, because it’s not INTENDED to make sure. It’s intended to create this facade for the uninformed person that the ostensibly “independent” judiciary will protect the average citizen against government abuses. In reality, it won’t, and never will. But maintaining this facade while not actually providing any protection is important in inhibiting revolts.

            1. *make sense

  3. “And machine guns are illegal, so we can ban bump stocks?up to 520k of which must now be relinquished or destroyed. D.C. Circuit (over a dissent): No need to prevent the ban from going into effect while litigation proceeds.”

    That they wouldn’t enjoin during litigation a regulation that demands you destroy lawfully acquired property without any compensation or become a felon would be starkly unbelievable if it didn’t have to do with guns.

    It’s pretty hard to swallow even with the “but guns!” rule factored in.

    1. That the Supreme court also refused an injunction without dissent under these circumstances was even more disgusting.

      1. Only Gorsuch and Thomas dissented. This means that the same thing will happen with >10 magazines or “assault weapons” when the left manages to ban them.

        1. I’m not so sure about that.

          Nationally, where not outlawed, “assault weapons” and magazines with a capacity of greater than 10 rounds are in very common use.

          As well, LEOs and military both utilize magazines with a capacity of greater than 10 rounds so it’s easy to show that they have military use and would likely be useful in the “common defense”.

          Bump stocks, on the other hand, are not really in common use. Nor are they used by any official LEO or US military branch that I know of. They also do not appear to be well suited for self defense (IMHO).

          Although I don’t think bump stocks should be illegal (indeed I’d probably rather someone attempting a mass shooting wasted their ammunition due to the difficulty of controlling fire when using a bump stock rather than being more discriminating with their limited rounds of ammo), I think there’s quite a distance legally between them and HCPs or “assault weapons” (i.e. cosmetically “scary looking” guns).

          1. Right, but the issue here wasn’t whether they’re in common use. That is ultimately relevant as to whether the 2nd Amendment protects bump stocks. The issue for the injunction should have been the taking aspect.

        2. A few days ago it had been reported that the stay had been rejected without dissent. Maybe the Justice handling it didn’t ask around first.

          I hope there are at least enough Justices who care to grant eventual certiorari. This sort of decision needs a withering dissent even if upheld, so that the majority at least have to confront how wrong they are, even if they don’t care.

      2. Roberts is a piece of crap. I really hope he gets a tumor.

        1. You could be that.

        2. You’re a parody of a far-right lunatic.

    2. “regulation that demands you destroy lawfully acquired property without any compensation or become a felon would be starkly unbelievable if it didn’t have to do with guns.”

      IANAL (and welcome edification from the lawyers!) but isn’t that normal for contraband? When they take your house for a casino parking lot, they aren’t saying your house is illegal to possess, only that *you* don’t get to possess it any more.

      When various drugs – heroin, LSD, etc – were banned, I don’t think existing owners were grandfathered or compensated.

      1. Right, but when they take your house, they have to provide “just compensation” (of course, whether they actually do in practice is open for debate). For other contraband, you could at least argue it was a consumable. That isn’t the case for bump stocks.

  4. The Sixth Circuit seems to have taken leave of its senses. I wonder if the arrival of Judge Bush had something to do with that.

    1. More likely that Obama’s traitorous appointees are behind it.

    2. The Michigan (home inspector) case was written by a Reagan appointee, the others were named by Clinton and Carter.

      The Ohio case had two Bush43 appointees (incl. the writer) and one Clinton.

      Tennessee (sterilization), two Clinton and a Bush41.

      Only the Kentucky case had any Trump or Obama judges (one of each, the Obama appointee in dissent), and Reagan appointed the third.

  5. See Doraville for a preview of how Democrats will pay for the Green New Deal.

  6. “There’s legitimate medical debate about the efficacy of gender reassignment”

    There’s a lot of variation among trans people in what they need. The efficacy and need depend on an individualized assessment.

    Many are adequately served by “counseling and hormones”. Others are like one I know from another forum who had to have complete darkness to take a shower because it was that painful to see that unwanted thing growing out of her.

    Texas, by the way, does have a procedure for inmates to request orchiectomy. I read about that going through Texas prison documents. https://preview.tinyurl.com/orchiectomy. It’s for sex offenders but as long as they’ve got that option lying around they might as well use it for someone who needs it.

    1. Not trying to start a row and all but what they need, is to acknowledge that men are men and women are women, hard as that may be to accept. Myself, I want to be over 6 feet, but alas, tis not to be.

      1. Cheer up, mad_kalak. You are over six feet now. Later on, you’ll be six feet under, but not to worry about that now.

    2. Hard to fathom how a castration is going to solve a mental disorder

      1. Even if we accept it as a mental disorder that disorder itself is not causing the mental anguish. It is the disconnect between it and their physical appearance. And it is the mental anguish that needs to be treated. Changing the appearance to match the internal feeling, even if caused by a mental disorder, would greatly if not completely relieve the mental anguish. Obviously that would require more than just castration, it would require sex reassignment surgery (if that is where that individual is at). Nevertheless, allowing for physical alteration of the body does solve the main concern of psychological and emotional harm.

        1. “Changing the appearance to match the internal feeling, even if caused by a mental disorder, would greatly if not completely relieve the mental anguish.”

          No it wont – castration and mutilation will not resolve, relieve the underlying mental illness. Ask any competent mental health professional – not someone promoting the latest fad diagnosis.

          1. I specifically and purposely differentiated mental illness from mental anguish. They are not the same. It would treat the the anguish in many even if not the illness (again if we assume that is what it is). Treating symptoms is perfectly reasonable in the health profession.

            1. “Treating symptoms is perfectly reasonable in the health profession.”

              A barbaric mutilation is a perfectly reasonable treatment only in the delusion health profession

        2. “Even if we accept it as a mental disorder that disorder itself is not causing the mental anguish. It is the disconnect between it and their physical appearance. And it is the mental anguish that needs to be treated. ”

          I assume this is why diet and liposuction are so effective for treating Anorexia.

          1. Anorexia occurs when you always think you are overweight. No amount of weight loss from any means will fix that. Diet works for people who just want to lose weight.

            1. The point is that you can’t actually fix a pathological failure of self-image to match reality by changing the reality. Whatever caused the failure is still present.

              Just as an anorexic doesn’t stop being an anorexic if you make them skinny, somebody with gender dysphoria doesn’t stop being dysphoric just because you wack off their penis and give them implants. They continue perceiving a mismatch between reality and identity.

              As demonstrated by suicide rates in “reassigned’ dysphorics, even if they move someplace where nobody knows what they really are, the underlying mental problem isn’t fixed by changing the external appearance.

    3. On the order of 95% of trans folk either switch back or kill themselves.

      Tell me that they’re not crazy.

    4. On the order of 95% of trans folk either switch back or kill themselves.

      Tell me that they’re not crazy.

      1. Cite please?

        1. 146% of all statistics offered on the Internet are made up.

        2. I think that’s got to be exaggerated more than a little, the suicide attempt rate for post-surgical gender dysphorics is about 20 times that of the general population, but once they’ve undergone surgery, the rate of surgical reversal is pretty small.

          Mainly because it’s largely irreversible at that point, of course.

  7. I’m surprised I don’t see anything about the CA magazine happenings.

    1. That’s being heard at the District Court level right now. This page is Circuit decisions only.

  8. In the mineral case, there is a lot of talk about whether the use is “economic”, which seems to really be missing the point. All use is economic. A better test might be whether it’s a commodity or not — a minderal you care about for its composition, and anything else with similar enough composition is fungible. A fossil is just the opposite.

    1. Well said.

  9. Wow. Not only is the judge who ordered the involuntary sterilization still walking the streets a free man, he was let off with a reprimand!

    1. Skinner v. Oklahoma was wrongly decided. We absolutely should be sterilizing more people, especially those with low IQs, emotional disorders, and other traits that make them unfit for modern society.

      1. other traits that make them unfit for modern society

        Yeah, in Soviet Russia (and elsewhere in the Eastern Bloc) they put people into mental institutions (where they ‘medicated’ the living daylight out of them), because their dissident behaviour made them unfit for modern Soviet society.

        1. I’m not talking about behavior. I’m talking about bad genes.

          1. ‘Bad’ genes manifest themselves in behaviour; of course you’re talking about behaviour. That’s exactly what you want to prevent: the existence of individuals who behave in ways which aren’t approved by you and your progressive eugenicist ilk.

            1. No, I’m talking about the existence of individuals who are unable to support themselves and follow society’s rules.

              1. Yes, you’re talking about the existence of individuals who are unable to support themselves and follow those rules of society which you and your progressive eugenicist ilk think important to follow. Which is behaviour, or the lack thereof.

                1. No, progressives think it’s important for society to take care of these people. I would rather prevent them from needing taking caring of in the first place.

                  1. No

                    Yes, you are talking about behaviour.

                    I would rather prevent them from needing taking caring of in the first place.

                    So society can progress apace.

                    1. You’re the liberal who wants to let low IQ people breed uncontrolled so that we have to pay for them, not me.

                    2. Who the hell do you trust to give the test? And such a test is one election away from a Hillary Clinton type saying there are “to many white males” and making it so they get sterilized.

                      Again, policy implementation is not your forte.

                    3. Clearly we should trust the experts. They’ve never misled people before for professional benefit.

                    4. When I call for a return to a traditional conservative order, I don’t mean to do it on some things while leaving the rest of the liberal machine in place. I’m referring to a time, say in the 1950s, when principled white men were in charge. People like Hillary would have been laughed at in that Tim.

      2. “Skinner v. Oklahoma was wrongly decided. We absolutely should be sterilizing more people, especially those with low IQs, emotional disorders, and other traits that make them unfit for modern society.”

        Judge Benningfield, is that you?

  10. It seems like one of the themes of Short Circuit is plaintiff’s lawyers in civil rights cases who make really dumb mistakes and just don’t do their jobs. Suing the wrong party, failing to conduct even minimal discovery, etc. turns a winnable case into a loser.

    1. People doing their jobs correctly isn’t newsworthy. You don’t hear about the 99 times the construction workers properly dug trenches and installed underground utilities. You do hear about the 1 time they break the sewer pipe and flood the sidewalks with sewage. You don’t hear about the 999,999 times the doctor amputates the correct limb. But you cut off just ONE healthy arm, and…
      Thousands of legal cases were settled today. You won’t hear about most of them.

      1. “You don’t hear about the 99 times the construction workers properly dug trenches and installed underground utilities.”

        Or the thousands of lines of flight control system code that don’t steer the aircraft into the ground…

        1. All aircraft flights end at the ground.

  11. “There, a judge and prosecutor confronted her…”

    The judiciary and the State are not in cahoots. That’s just crazy-talk.

  12. If you’re going to be talking in Dallas, I hope you at least mention their DA’s announcement that he will no longer prosecute thefts under $750 “because poverty shouldn’t be criminalized.” That is outrageous and makes me want to tar and feather the bastard.

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