Short Circuit: A Roundup of Recent Federal Court Decisions

Tire chalking, evidence tampering, and robocalls.

|The Volokh Conspiracy |

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

One of the drug war's more pointlessly punitive policies is going up in smoke. Until this month, both New York and Pennsylvania mandated suspending the driver's license of anyone convicted of any drug crime, even crimes wholly unrelated to driving. In recent years, a combined 330,000 driver's licenses were suspended in the two states. Recognizing that this does little to protect the public and makes it far harder for ex-offenders to maintain steady employment (one of the best bulwarks against recidivism), New York and Pennsylvania finally scrapped their suspension statutes. Over at Forbes.com, IJ's Nick Sibilla has more.

  • The House of Representatives begins each day with a prayer, approximately 40% of which are delivered by guest speakers from a variety of faiths. Former pastor-turned-atheist asks to deliver a secular "prayer" to the House, but the House Chaplain turns him down. An Establishment Clause violation? D.C. Circuit: If the House is allowed to start the day with a prayer, it's allowed to insist that the prayer be religious in nature (even if it seems to have adopted that policy solely in response to this litigation).
  • Trinidadian green card holder has been subject to removal from the United States since 2007 but has routinely been granted administrative stays that have permitted him to remain in the country with his American-citizen wife and daughter. Now an immigrant rights activist, he has a testy confrontation with ICE officials when clergy and elected officials accompany him to one of his scheduled check-ins, resulting in negative publicity for the agency. ICE suddenly develops a renewed interest in deporting him. Unconstitutional retaliation for protected speech? Second Circuit (over a dissent): Although Congress tried to take jurisdiction of this question away from us, the Constitution forbids that. He stays for now.
  • Defunct bar prep course sues Barbri and a host of law schools, alleging a wide-ranging conspiracy to keep it off campus and give Barbri a monopoly over the market for foreign Master of Laws students taking the bar. Second Circuit: The documents you attached to your complaint suggest you were barred from campuses not because of any conspiracy but rather because students thought your course materials and business practices sucked. Case dismissed.
  • Federal law provides money to states to assist foster parents with the care of foster children. Can foster parents sue in federal court if the state has been unforthcoming with the money? Second Circuit (deepening a circuit split): That's the bargain the states struck in exchange for the money. Dissent: That apparently comes as a surprise to the 14 states that submitted an amicus brief disagreeing with the majority.
  • Here's a quick test for determining whether a new judicial decision involves a hot-button culture war issue: Is the list of participating amici 10 or more pages? Relatedly, Third Circuit: A Catholic charity that has provided services to the city of Philadelphia for a century, but whose religious beliefs preclude it from certifying same-sex couples as foster parents, is not entitled to a preliminary injunction that would require the city to renew its contract with the charity. (Also the Third Circuit: You guys have helped a lot of kids together over the past 100 years, so it would be fantastic if you could work this out.)
  • Pennsylvania Senate president pro tempore frivolously removes a state-law redistricting challenge to federal court, triggering emergency motions/hearing. The case is remanded back to state court within two days. Third Circuit: And the $29k in costs and fees awarded to the plaintiffs for that brief trip to federal court was completely reasonable, though the Senate president, sued in his official capacity, cannot be held individually liable for them. Sorry, taxpayers.
  • American Association of Political Consultants: Federal law prohibits us from making robocalls to cell phones but allows robocalls from people trying to collect federal loans. That violates the First Amendment! Fourth Circuit: We've got good news and bad news. The good news is that we agree with you. The bad news is that we're going to fix the problem by prohibiting the loan collectors from making robocalls, too.
  • A nonprofit trade association wants to hire in-house lawyers to provide legal advice and services to its members. Several states allow this, but North Carolina law says only lawyer-owned business entities are allowed to practice law to preserve the high ethical standards that lawyers are famous for. Fourth Circuit: While this is a "close" case, this does not infringe your rights to free speech or free association, has a rational basis, and is not unconstitutionally vague.
  • Louisiana police officer is struck by a heavy object during a Black Lives Matter protest, suffering significant injuries. He sues the individual protest organizer, Black Lives Matter, and #BlackLivesMatter. Fifth Circuit: You can't sue social movements or hashtags, but you've alleged enough facts for the negligence claim against the protest organizer to go forward.
  • Louisiana woman makes "politically incorrect" statements on Facebook about a trans person she saw while clothes shopping, gets fired. Has she been discriminated against for being heterosexual, in violation of Title VII? Fifth Circuit: She has not because Title VII doesn't cover sexual-orientation discrimination. Concurrence: "Title VII does not grant employees the right to make online rants about gender identity with impunity. I would stop there." (NB: The Supreme Court will consider this question next term).
  • Fort Worth, Texas police go to wrong home in response to burglary alarm, rouse septuagenarian. Allegation: Though he obeyed command to set down his gun, police shot, killed him and then tampered with the crime scene, gave false statements so as to make the shooting look justified. Fifth Circuit: The excessive force claim can go to trial. But no suing (at least not yet) over the attempted cover-up because the officers (alleged) actions haven't prevented plaintiffs from accessing the courts.
  • Lollygagging drivers, cross your fingers! Chalking—the common practice of marking car tires to see who's been parked too long—is a search under the Fourth Amendment. That, holds the Sixth Circuit, is what a trespass-based legal theory requires. If law enforcement searches a car by affixing a GPS tracker to it (as the Supreme Court held in 2012), they also search a car by putting chalk on it. Stay tuned to the ongoing litigation to see if that means chalking searches are unconstitutional.
  • Homeland Security agent in Detroit uses his position as a federal officer to illegally detain someone for personal purposes. Yikes. And then at trial for that, prosecutors threaten him with impeachment evidence of his (alleged) lying about other misconduct on the job, which he committed as a favor for a woman he was sleeping with. More yikes. He doesn't want to get impeached, so he chooses not to testify. Sixth Circuit: The prosecutors could do that. Conviction stands.
  • In 2004, FBI fingerprint analysts finger the wrong guy for a terrorist bombing in Spain. Fast-forward to the present: Using the same (though perhaps updated) method, FBI fingerprint analyst fingers man for 2015 bank robberies. Should the man have been allowed to bring up the 2004 incident at his trial? The Seventh Circuit says no; by all means, cross-examine analysts about the method's error rates, but identifying a specific wrongful imprisonment would appeal to the jury's emotion and not their reason.
  • Allegation: After suspect drops his gun and submits to arrest, Springdale, Ark. officer points his service weapon at the suspect's head and says, "I'll blow your fucking brains out if you ever approach me like that again." Eighth Circuit: Compliant suspects have a clearly established right not to have guns pointed at them. No qualified immunity. Judge Colloton, concurring: The decision that clearly established that right is pretty iffy, but it controls here.
  • Allegation: Escondido, Calif. police investigating report of domestic violence take man, who was not the subject of the report and was not aware of the officers' presence, to ground as he exits apartment. Ninth Circuit (on remand from the Supremes): There is no case on point clearly establishing that officers can't tackle people who pose no apparent danger. (Nor is there now.) Qualified immunity.
  • Covina, Calif. police search man in 2013, resulting in conviction for possessing contraband. In 2016, the conviction is reversed; the search was illegal. Shortly after, the man sues officers, the city for false arrest (among other things). Which was too late, says the Ninth Circuit. That he was still appealing his conviction when his deadline to file suit expired doesn't change anything.
  • Police enter Elbert County, Colo. home that they know has two occupants: the owner and a guest for whom they have an arrest warrant (for a nonviolent crime). They set loose a dog into bedroom to bite, it turns out, the guy for whom they did not have a warrant (who says he didn't hear police announce their presence). Excessive force? Tenth Circuit: No.

Friends, Washington's state constitution is more protective of property than the U.S. Constitution, declaring, among other things, that "private property shall not be taken for private use." And that was no accident. By 1889, when the state's constitution was ratified, Washingtonians had endured decades of abuses at the hands of a corrupt territorial government, which enabled land grabs, bestowed monopolies, and granted special privileges to personally or politically favored interests. Thus, the Washington Constitution imposes stringent safeguards against taking property from A to give to B, and Washington courts have long applied these safeguards faithfully. Until now? In an amicus brief, IJ urges the Washington Supreme Court to decline the city of Seattle's invitation to take Wite-Out to all the things that make the state constitution's takings provision unique and cool.

NEXT: Rand Paul, on a Prospective Justin Amash Presidential Run: 'The Electoral Prospects Don't Look That Good'

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  1. “Ninth Circuit (on remand from the Supremes): There is no case on point clearly establishing that officers can’t tackle people who pose no apparent danger. (Nor is there now.) Qualified immunity.”

    I’m confused. If there is no constitutional violation for tackling people who pose no apparent danger, why did the court hold that qualified immunity applied?

    1. FYTW

    2. And these are the same people who want the government to have all the guns. Yeah, how about no?

  2. Trinidadian green card holder has been subject to removal from the United States since 2007

    The green card holder is a convicted felon.

    Mortgage Fraud, just another job Americans won’t do.

  3. “Allegation: Escondido, Calif. police investigating report of domestic violence take man, who was not the subject of the report and was not aware of the officers’ presence, to ground as he exits apartment. Ninth Circuit (on remand from the Supremes): There is no case on point clearly establishing that officers can’t tackle people who pose no apparent danger.”

    Isn’t there a STATUTE saying that people can’t tackle other people who pose no apparent danger? Battery is a crime, isn’t it? Also a tort?

    1. Yeah, today’s summary is just a conspiracy by the Conspirators to make us hate the police.

    2. “Isn’t there a STATUTE saying that people can’t tackle other people who pose no apparent danger? Battery is a crime, isn’t it?”

      Strangely, it appears that the officer who committed the battery declined to arrest himself.

      1. Qualified immunity is protection from civil law, not criminal. The question at issue is whether or not the officer engaged in an action that he knew, or should have known, is a violation of the rights of the plaintiff. So, one way they would have such notice is if a previous case found the action to be a violation of someone’s rights. But another way would be if there’s a statute that criminally bars the act.

        A cop can’t pull you over, and demand to see your license, registration, proof of insurance, and whatever cash you have in your wallet, then return the first three and wave you along your way. This is so not because a case determined it, but because armed robbery is a crime for everyone. A police officer can be expected to know this.

        1. another way would be if there’s a statute that criminally bars the act.

          And another way would be if he had the brains of a garden slug.

  4. I’m bemused by the ‘tire chalking’ one (which was covered elsewhere on the Conspiracy of course).

    When you drive on public roads, you are obviously consenting to allow government owned property to touch your tire treads and you have virtually no control over what materials are on those roads. Why not chalk and why not from a stick held by a parking enforcement officer?

    Unlike the GPS case, there are trivial low tech ways for parking enforcement to accomplish the same thing as chalking. They could, for example, put small strips of chalk with a weak (environmentally friendly and water soluble) glue holding them to the pavement in front of and behind one of the tires but just 1mm away from the tire — if one or both of these are not crushed, the car hasn’t moved.

    To me, the GPS cases seem more like using wall penetrating radar or thermal imaging while chalking seems more like looking, from the street, into someone’s home through a plate glass window with no window coverings on it.

    1. Was something placed on the vehicle to enable the police to detect if the vehicle has been moved? The answer to both gps and chalk is yes.

      1. Is determining whether the car has moved a “search” of the car?

        The chalk only works if the police agent can physically see the car. The GPS tracker works whether the car can be readily observed or not. Police are allowed to observe what they can from a vantage point they’re allowed to occupy. So they can stake out a car, and physically watch it to see if it moves.

    2. “…you are obviously consenting to allow government owned property to touch your tire treads and you have virtually no control over what materials are on those roads. Why not chalk and why not from a stick held by a parking enforcement officer?”

      Because I didn’t consent to that.

      1. “Because I didn’t consent to that.”

        Then don’t park on public streets. Problem solved.

  5. “In 2004, FBI fingerprint analysts finger the wrong guy for a terrorist bombing in Spain. Fast-forward to the present: Using the same (though perhaps updated) method, FBI fingerprint analyst fingers man for 2015 bank robberies. Should the man have been allowed to bring up the 2004 incident at his trial? The Seventh Circuit says no; by all means, cross-examine analysts about the method’s error rates, but identifying a specific wrongful imprisonment would appeal to the jury’s emotion and not their reason.”

    This one bothers me a lot. It’s not an emotional appeal. It’s an argument that the FBI, having unsuccesfully framed a person once, is less credible when it fingers the same person again.

    I don’t mind a 403 instruction here– tell the jury that it can only use it for this purpose and cannot acquit the defendant simply because they feel sorry for him or believes that he deserves mercy because he was previously framed by the FBI. But keeping this evidence out is a serious due process violation.

    1. There’s an argument both ways. On the one hand, the fact that they screwed up one time doesn’t prove that they screwed up this time, unless the witness says on the stand that they’ve never been wrong before.

      On the other hand, if they get a big, major case wrong, it shows that even when they’re really trying to get the right answer, their methods are fallible.

      1. That’s true, but I also think the defense should be able to argue a vendetta too. They were ticked off that this guy beat them once, so now they are adter him again.

        Remember, the jury doesn’t have to buy these arguments. If they think the tests are reliable this time, they can reject the arguments and convict.

        But I think any jury would want to hear about 2004 vefore deciding what to do.

        1. It’s two different people. The 2004 incident involved a lawyer from Oregon named Brandon Mayfield. This case involves someone named Myshawn Bonds.

    2. The defendant isn’t this case isn’t the person who was misidentified in the Madrid bombing investigation.

  6. I’m not sure I agree with the DC circuit on the legislative prayer case. I absolutely agree, despite not liking it myself, that legislative prayer is perfectly constitutional. But as Marsh made clear it reserved the question about what would happen if improper motives were at play. I think that is the case here. That is there is a big difference with allowing religious and sectarian prayer and denying all that is not religious.

    I say this in regards to what the legislative body allows. I do think it would be allowed to hire a congressional chaplain and only he can do the prayer. There is nothing requiring guest chaplains. And that it is therefore religious and sectarian is incidental. But by allowing guest prayer I think it violates the Establishment Clause to limit it in a way that discriminates among religions (ones that don’t have ordained clergy) or between religion and non religion (not allowing atheist/agnostic/humanist etc.).

    1. I think they can hire a chaplain and have prayers, so long as the chaplain is not espousing any specific religion. (You aren’t establishing any one religion if what you do is compatible with many of them.) When you start rejecting potential invocators who are perceived as being not of the right religion, however, that’s definitely dangerous territory. Slippery slope to “you can be any religion, as long as it’s this one”.

      1. The whole business of starting with a prayer seems silly to me, more a public show than anything.

        Members who want to start the day with prayer can get themselves out of bed a minute earlier and pray at home, or in some voluntary private group with others. Or maybe they could just go to a morning mass, or help form a minyan, or whatever they like.

        1. I don’t want other people to tell me how to arrange my religious matters, so I don’t tell other people how to arrange theirs. I’m openly hostile to people who want to use power of government to do so. But here, they’re deciding how THEY should pray, not how I should.

          1. I doubt the decision is unanimous.

            1. There’s only one of me. How can my decision NOT be unanimous?

        2. Didn’t the SC rule atheism suffers all the first amendment protections of religion (and not just speech)? As such it would be eligible for such activity, and the ruling is wrong.

  7. ” (Also the Third Circuit: You guys have helped a lot of kids together over the past 100 years, so it would be fantastic if you could work this out.)”

    About that freedom of religion thingy — just change your beliefs and you can keep it. Be a nice boy, now.

    1. If people can do whatever they want, and then say they did it because of their religious beliefs, then we can’t have any laws that limit behavior.

      Now, sometimes we have laws that say you can’t do something, and that something is DIRECTLY tied to religious beliefs. We don’t let Aztecs sacrifice people at dawn by cutting out their hearts with obsidian knives because we don’t let ANYONE cut out people’s hearts, unless they have a medical degree and board-certification in surgery, and that’s with or without obsidian knives, and at dawn or any other time of day. We also don’t let Muslims kill the unbelievers, because we have a law against killing people, regardless of their beliefs or lack thereof.
      We also have laws that say same-sex married people can be foster parents, unless there’s a good reason to keep them from being foster parents, and “We don’t like same-sex marriage” isn’t a good reason.
      Now, if your religious beliefs say that you shouldn’t be in a same-sex marriage, and somebody from the government comes along and tells you you have to get one, then you’ll get my support. I don’t want to be in a same-sex marriage either (full disclosure… not sure about wanting to be in any marriage). But if you’re serving foster children, then you have a duty to put them into good, safe homes… not good, safe homes that conform to your religious beliefs. See how that’s a subtle difference?

    2. “unless there’s a good reason to keep them from being foster parents”. Except the church/religious organization isn’t stopping them from being foster parents. The church is simply refraining from helping them become foster parents because they don’t think they would be good foster parents, and the gay/lesbian couple is perfectly free still to be foster parents. The same goes, by the way, for an organization formed expressly to help only gay/lesbian couples become foster parents. No problem either direction.

      1. if you’re serving foster children, then you have a duty to put them into good, safe homes… not good, safe homes that conform to your religious beliefs.

  8. On the 5th circuit Title VII case, I am inclined to agree with the concurrence. The court can easily find that the plaintiff wasn’t discriminated against based on sex without wading into the difficult issues the majority does. Courts should avoid reaching difficult and controversial issues unnecessarily. There was no necessity here.

    Lower-court judges rushing to get their opinions in to try to persuade the Supreme Court even in the absence of a need to form those opinions goes completely against the principle of judicial restraint, a principal that seems sorely lacking on all sides these days.

  9. In the 2nd circuit deportation case, the difficulty here is the text of the First Amendment, which explicitly refers to the right of the people to petition their government.

    It could certainly be argued that a person with no lawful residence in this country is not a member of the people. If the Framers had intended First Amendment protection of airing of grievances to the government to apply to foreigners, why did they use explicit language saying otherwise?

    The core problem that proponents of using the constitution to support liberalized immigration and immigration rights have is exactly the problem opponents of abortion had in trying to use the constitution to support fetal rights. The problem is the text of the constitution tends to run against both. This is a lacuna of a sort that just isn’t visible to people so dedicated to their respective causes, so sure their cause is just and the constitution obviously supports justice and just causes, that they just don’t see contrary information.

    1. “It could certainly be argued that a person with no lawful residence in this country is not a member of the people.”

      When they mean to exclude foreigners, they don’t extend rights to “people” or “all persons”, they extend them to “citizens”. If they didn’t say “all persons lawfully resident”, but did say “all persons”, your argument is not going to be taken very seriously.

      1. See U.S. v. Verdugo-Urquidez.

        Although the Supreme Court’s holding was that “the people” lacks “extraterritorial application,” its discussion of how the term is used in the Constitution supports an even narrower conception, limited to those who are “part of the national community or who have developed sufficient connection to this country to be considered part of that community.”

  10. On the Washington State case, I suspect that the Washington Supreme Court could fairly straightforwardly rule that once a landlord has decided to rent property commercially, government regulations limiting the landlord’s freedom to decide who to rent it to do not constitute a “taking” even under fairly broad interpretations of what constitutes a “taking.” The City of Seattle may have overreached by asking the Washington Supreme Court to abandon the state’s heightened property protections. But an interpretation of those heightened protections that might prohibit ordinary discrimination laws of the sort in effect in many states well before the 1960s might be overreach as well.

  11. On the DC Circuit First Amendment case, I think the DC Circuit got it right, and Marsh v. Chambers and it’s progeny gives Congress some discretion in deciding what kind of prayers it wants.

    Nonetheless, if there was ever a time to sprinkle a brief with a liberal dose of legal phrases, like “prayer for relief,” that contain the word “prayer,” this case has got to be it. One of the questions in the case was whether the term “prayer” can have a secular meaning. Of course it can. It has a long history of use as a secular legal term. And if I were the would-be guest chaplain’s lawyer, I’d emphasize that fact in my brief, and repeatedly, much as Mr. Cohen’s lawyer repeatedly used the word “fuck” in Cohen v. California.

    1. ” It has a long history of use as a secular legal term.”

      Not entirely secular, what with one of the theories of law being that they just exist as part of Creation, waiting to be discovered by us ordinary humans.

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