Short Circuit: A Roundup of Recent Federal Court Opinions

The Punisher, compelled self-incrimination, and a unicorn amongst unicorns.

|The Volokh Conspiracy |

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

Since the Nixon administration, the Securities and Exchange Commission has refused to settle civil or administrative enforcement actions unless defendants agree to lifetime gag orders preventing them from criticizing the SEC. Say the agency has a weak case against you but is willing to let you go for less than it would cost to defend yourself. Do you settle? Not if you ever want to defend your name in public. The agency's press release maligning you will be the last word on the matter. Which violates the First Amendment, argues IJ Senior Attorney Robert McNamara over at Bloomberg Law.

  • A Massachusetts ban on certain semiautomatic weapons and magazines capable of holding more than 10 rounds does not violate the Second Amendment, says the First Circuit. Though law-abiding, responsible citizens will no longer be able to use such weapons in defense of hearth and home, they can still use handguns. "[W]hen asked directly, not one of the plaintiffs or their six experts could identify even a single example of the use of an assault weapon for home self-defense, nor could they identify even a single example of a self-defense episode in which ten or more shots were fired."
  • Massachusetts sues the feds, challenging federal rules that grant religious and moral exemptions from the contraception mandate of the Affordable Care Act. Feds: Massachusetts doesn't have standing, because it "cannot point to a single woman who will lose coverage she would otherwise want." First Circuit: But the Commonwealth has shown a substantial risk that at least some women will lose coverage (and thereby cause Massachusetts to incur costs). That's enough for standing.
  • Recovering addict is due to be jailed for 40 days, during which time Aroostook County, Me. jail officials tell her she will not receive her duly prescribed, twice-daily dose of medication to treat her opioid-use disorder. (Which will force her into painful withdrawal and increase her risk of relapse, overdose, death.) District court: Given her likelihood of prevailing under the Americans with Disabilities Act, she gets a preliminary injunction protecting her access to the meds. First Circuit: Just so.
  • Most class actions involve classes of plaintiffs, but keep a weather eye out for what the Fourth Circuit (cribbing from the Seventh) describes as the "unicorn" class action—the class is getting sued, not doing the suing! Sadly, though, this sort of unicorn is a unicorn even amongst unicorns: Unlike the standard unicorn—"majestic and even magical," in the Fourth Circuit's experience—defendant class action unicorns can suffer from hideous deformities relating to due process and to inadequate representation of absent class members.
  • ICE agents stop, arrest nine Latino men in Northern Virginia and then initiate deportation proceedings. (One of the men is a U.S. citizen.) Can the men seek damages from the agents for stopping them without a reasonable, articulable suspicion of unlawful activity, among other claims? Fourth Circuit: No can do. Only Congress can provide a money damages remedy against ICE agents, and it hasn't done that.
  • Tattnall County, Ga. guard discovers prisoner in solitary confinement hanging from a noose. Guard: Which I thought might be a ploy to lure me into the cell so he could ambush me. So I called for backup and did paperwork. (Officers enter the cell seven minutes after the guard first saw the prisoner.) The prisoner dies. Fifth Circuit: The guard, who was 6 inches taller and 30 pounds heavier than the inmate, reasonably feared for his security. No Eighth Amendment violation here.
  • While Donna, Tex. jail officers are preoccupied putting up posters that say "Welcome to Donna Hilton" and display a logo of the Punisher (a comic book character known for meting out extrajudicial punishment), detainee hangs himself. Do the signs indicate a municipal policy of mistreating detainees? Fifth Circuit: No.
  • Now-repealed Texas law required plaintiff, a blind sex offender, to pay to wear GPS tracking device. Not paying was a felony. But plaintiff's only source of income was his Social Security benefits, which are protected against "execution, levy, attachment, garnishment, or other legal processes." Is the threat of criminal prosecution an "other legal process"? The Fifth Circuit says no; here, "other legal processes" means processes that are similar to the ones listed, and criminal liability is quite different from garnishment, et al.
  • Defendants must be tried in the place where they committed their alleged crimes. So important is this venue requirement that it is found in two separate parts of the Constitution. Prosecutors take heed of this Sixth Circuit decision overturning 17 counts of mail fraud because the feds failed to establish they were in the correct venue. The defendant, who had lied to FedEx to get a shipping discount and then pocketed the difference when he overcharged his customers for shipping, may face new trials, as a dismissal on venue grounds doesn't qualify for double jeopardy protections.
  • A member of the American Board of Forensic Document Examiners writes an article for an American Bar Association journal, in which he opines that judges should trust handwriting experts certified by the ABFDE and "be wary of other certifying bodies." Board of Forensic Document Examiners: Say what! We're an "other certifying body," and that spurious article has defamed our esteemed members. Seventh Circuit: "[T]he appropriate avenue for expressing a contrary point of view was through a rebuttal article, not a defamation lawsuit."
  • Sex offenders imprisoned by Indiana are required to participate in treatment sessions in which they are asked to identify victims of their abuse and how they abused them. The questions aren't about just the crimes of conviction; they're about any sex abuse ever. And if the inmates don't participate, they can lose good time credits that would shorten their prison sentences. Seventh Circuit: The Fifth Amendment prohibits this sort of compelled self-incrimination.
  • Over a dissent, the Seventh Circuit holds that death from autoerotic asphyxiation, even if accidental, still involves an "intentionally self-inflicted injury" that can prevent a life insurance payout. The Second and Ninth Circuits disagree. (Will the Supreme Court resolve the split? Don't hold your breath.)
  • Man convicted for a 1993 Anderson, Ind. murder is released in 2010 when it's revealed that investigators withheld evidence. Can he now get damages from an investigator who allegedly hid a video of witnesses identifying another suspect as the shooter? District court: No. Seventh Circuit: Maybe. There's enough evidence to get past summary judgment.
  • Real estate holding companies go through Chapter 11 bankruptcy, strike a deal that allows them to repay all creditors in full and keep operating. But wait! The United States Trustee objects because one of the companies leases property to a marijuana farm in Washington state, in violation of federal law. Will the debtors' repayment plan "go up in smoke"? Ninth Circuit: It will not. Federal law prohibits only plans that are proposed by means forbidden by law. Nothing about the way this plan was proposed was illegal.

After Jerome Davis and Veronica Walker-Davis' car was damaged in an accident, they took it to a Chicago body shop for repairs. But a shop employee, who took it for a joyride and was pulled over, didn't have a valid license, so police impounded the car. The city refused to release the car unless Jerome and Veronica paid thousands of dollars in fines and fees for someone else's crime. Their innocence was not a defense, and when they returned with the money, the city had already disposed of the car. This week, Jerome and Veronica teamed up with IJ to sue over Chicago's impound racket, which ensnares over 22,000 vehicles a year. Click here to learn more (and be sure to let us know if the city impounded your car).

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  1. “Only Congress can provide a money damages remedy against ICE agents, and it hasn’t done that.”

    I’d call this a 9th Amendment violation. One of the rights recognized in the Founding generation was the right to sue for injury to person, property or reputation. The only issue was which court you can do the suing in. IMHO, Congress could provide a federal remedy, but if they don’t then the states can fill the gap – there would be no Supremacy Clause issues, since by hypothesis there’s no federal statute for the state courts to conflict with.

    Of course I’m talking about actions against the individual offenders, not claims against the treasury.

    1. It’s like you’ve never even heard of (un)qualified immunity.

    2. I am one that believes The Court has woefully read the 9th A. out of the Constitution and it needs to be fixed. There are unenumerated rights that are protected just as much as the enumerated ones. This is not one of those. Sovereign immunity has a long history. Do I think it should be waved more than it is? Yes. But there clearly is no right to sue government for damages.

      1. To repeat,

        “Of course I’m talking about actions against the individual offenders, not claims against the treasury.”

        1. Sovereign immunity is safely assured by the U. S. Constitution’s requirement that money can only be drawn from the treasury by Congress.

          It doesn’t protect the pocketbooks of individual offenders, however, those pocketbooks are fair game.

          1. Maybe I’m incorrect, if so correct me, but it was my understanding that sovereign immunity also applies to government actors. You can’t get around it by suing in an individual capacity. That to needs to be waived. That is why section 1983 was enacted and why the Court has limited Bivens basically to it’s facts and said no extensions.

            1. I’ll go have a look at my handy Black’s Law Dictionary…

              “A government’s immunity from being sued in its own courts without its consent.” Also “A state’s immunity from being sued in federal court by the state’s own citizens.”

              Hmm…well, I can’t say for sure, but the Founders were aware of how royal officials got successfully sued for trespass for acting on an illegal warrant, in the famous case of Entick v. Carrington. The fact of the trespass being established, the defendant had to show some sort of legal justification of be found liable, and merely being a govt. official wasn’t enough to save the defendant, otherwise this case wouldn’t have been so celebrated:


              1. One challenge to sovereign immunity is the first amendment’s prohibition on Congress making laws to abridge a person’s right to petition the government for redress of grievances.
                But just because that’s what the Constitution says doesn’t mean that’s the way courts read it, of course.

  2. Under Article III of the Constitution, Federal Judges get to hold their office during “good behavior”. In my opinion, writing individual rights out of the Constitution, as the First Circuit and Ninth Circuit (or at least some of the judges on those courts) seem bound and determined to do with respect to the Second Amendment, is NOT “good behavior.” In fact, it is a direct and willful violation of their oaths of office to “protect and defend the Constitution of the United States”, see 5 U.S.C. 3331. Time to start impeaching some of these bastards.

    1. I’m not going to get into an argument over whether they were right or wrong as it’s irrelevant to my point.

      If you start impeaching judges because you don’t like their interpretations of the Constitution you have basically ended our entire judiciary and frankly government. The entire reason they have life tenure (i.e. Good Behavior) is so they don’t get punished or feel pressure to go with what the populace may want. Only what the law says.

      Further to prove bad behavior you’d have to prove they are coming to their conclusions for political reasons and not judicial ones. Unless they are going around saying yes the 2nd amendment protects this but I don’t care you won’t be able to do that.

      1. “If you start impeaching judges because you don’t like their interpretations of the Constitution you have basically ended our entire judiciary and frankly government.“

        Would you agree that the same standard applies to impeaching Presidents just because you don’t approve of the fact that they were elected? As between impeaching Trump because – well, just because he’s Trump, and impeaching judges because they are willing to ignore precedent to make certain that the Second Amendment is a second class right, I know which I find more defensible.

        1. Yes. Why would you assume otherwise? I don’t like Trump at all but his political positions are not grounds for impeachment. Nor is his behavior.

          From all the testimony and the Mueller report the only thing that I would even consider possibly worth of impeachment would be if he did in fact tell people to lie during the investigation. And even that while I agree it would be illegal I don’t think is enough to impeach and should instead be left to the voters in the next election to determine how the feel. Impeachment should only be for offenses that call into question whether the President is doing what he feels is in the best interest of the country and prevents proper governance. Given that I’m not sure the alleged offense that was giving rise to the investigation itself is a problem worthy of what it turned into, ordering/asking others to lie while illegal, isn’t really preventing proper governance. I’m a bit on the fence but am pretty close to falling over onto the no impeachment side. I want to hear from Mueller given the shit show with Barr (I do think he should be impeached he clearly misled and lied to congress imo). But nothing about his politics matters to me (for the sake of disclosure I am registered republican and consider myself a moderate libertarian – that is the best I can do with how vaccuous terms tend to be. I hate Bernie, AOC, and Warren’s politics just as much as Trump’s).

          Anything trying to shut it down or not being totally cooperative is not enough for me (he has the right to do that). While I don’t like that there is even an appearance of colluding with a foreign nation I believe is corrupt I don’t think there is anything wrong with that that comes close to warranting impeachment. Information is information whether it comes from a good or bad source. If he actually did collude with the Russians to hack servers that would be a problem but I see no evidence of that. He benefited, but I’ve seen nothing to suggest he was actually part of doing it.

        2. And as for ignoring precedent the only precedent is Heller (McDonald was just incorporation). Heller recognized some gun control measures are allowed (it specifically said so regarding possession by felons and the mentally ill) and it is basically axiomatic that no right is absolute. Saying that a 10 round magazine limit is constitutional may not be correct but it isn’t ignoring precedent.

          I personally don’t like getting into arguments about whether these gun control measures are constitutional or not because I think both the majority and decent were wrong in Heller so it really doesn’t serve any point in putting my opinion on how the 2nd Amendment should be read.

          1. Are magazines holding more than 10 rounds commonly owned by law-abiding citizens for lawful purposes?

            If yes, then Heller wins.

            Such magazines have been sold as STANDARD for more than 30 years. Now they’re dangerous and ‘high capacity’ because that’s the only way to support the appeal to emotion that liberals rely on to violate the Constitution.

            1. Heller said that concealed carry bans are fine and it is something commonly done for lawful purposes. While that language was used it wasn’t announced as the actual test (there wasn’t one announced since it said it fails under any level of scrutiny). They were reconciling Heller with Miller. This is important because Miller was about a TYPE of arm. Magazine size can very plausibly be argued not to be a type and therefore the Miller test doesn’t apply and Heller didn’t announce one for other purposes. I’m not saying it is right. I think it is probably wrong constitutionally and don’t like it politically since I don’t think it has any chance of serving the purpose they think it will. But it isn’t nearly as simple as you make it.

              1. No, he didn’t say that. He referenced state concealed carry bans at a time when open carry was legal.

                1. I don’t see how that counters what I said. And I assumed that was obvious anyway since banning open and concealed carry is obviously unconstitutional. There were still plenty of places that allowed concealed carry and it was common to do for legal purposes. If the that was the test then concealed carry bans should be unconstitutional regardless of them allowing open carry.

                  1. Is it “obviously unconstitutional?” The 1st, 2nd, 3rd and 9th Circuits have upheld de facto bans on ANY form of public carry.

                    1. The simultaneous ban of both concealed and open carry functionally denies the bearing of arms.

                    2. Of course it is. But mse326 is claiming that judges don’t act in bad faith, but something he says is “obviously unconstitutional” runs contrary to what these people have ruled.

          2. Yes, but Heller also explicitly said that rational basis is not the appropriate standard of review. That’s what the courts have used, even if they call it “intermediate scrutiny.”

            There’s no reason that shooting off inside another man’s colon should be more protected than owning a 15 round magazine.

            1. The problem is that liberal’s would say the same thing about right leaning judges/justices in how they employ the “undue burden” test for abortion rights. If it ends up descending just to whether you agree or not with the original holding in how strict you are going to be with saying employ the test or get impeached there is no more judiciary. That is my point.

              1. The difference is that the 2nd Amendment is a historic, enumerated right. Abortion “rights” are bullshit, and you know it.

                1. Thank you for proving my point

                  1. Read the Constitution, front to back. Is there anything in there about killing babies or buggering another dude in his rear?

          3. The magazine limits run directly into Heller’s “in common use” language. It is simply bad faith fo a judge to pretend that magazines with a capacity over 10 rounds aren’t in common use, they’re MORE common than the magazines those few states want people restricted to.

            Forget impeachment over this, though: Too many Senators like gun control for a judge to ever be successfully impeached over wrongly upholding any gun control law, however extreme. Indeed, a judge is more likely to be successfully impeached over striking one down.

          4. ” because I think both the majority and decent were wrong in Heller ”

            Agreed: The dissent wanted the 2nd amendment effectively turned into a nullity, the majority was content to retain it in a very reduced form. The original right to ‘every terrible implement of the soldier ” was never on the table.

            I was particularly pissed off about the way the majority stood Miller on its head.

        3. ” As between impeaching Trump because – well, just because he’s Trump”

          Well, just because he’s Trump would include the fact that he considers holding him to the law as equivalent to treason (when he’s talking about it, anyway.)

          But, the approximate odds of Trump being impeaches are 0.000%

      2. Sometimes you can see bad faith even if the person employing it doesn’t admit it. This is one of those cases.

        1. Do you honestly think that is an administrable line? Because if it is only about what you see I can point to thousands of comments, posts, editorials, etc. claiming bad faith in pretty much every even remotely contentious constitutional issue from BOTH sides.

          1. So without a line, then what? Whatever a judge says goes, and we have to infer good faith?

            1. You don’t have to infer good faith. You just don’t infer bad faith unless you can actually prove it.

              1. Well by your ridiculous standard (a judge admitting it), one would never be able to prove bad faith.

                1. Maybe don’t nominate or confirm judges to Article III positions on the bench if they have bad faith?

    2. Geez, the federal courts are packed with Trump appointees from Crazytown, and the righties still want to impeach judges. I almost feel embarrassed defending our robed brethren.

      1. You should be embarrassed for this idiotic post.

  3. In fact, when asked directly, not one of the plaintiffs or their six experts could identify even a single example of the use of an assault weapon for home self-defense, nor could they identify even a single example of a self-defense episode in which ten or more shots were fired

    Does this seem odd? The case decided the other way in CA just six weeks ago cited multiple instances of homeowners using (or needing) more than 10 rounds to defend their home. Wouldn’t at least one of the 6 experts have read that decision? Would they not have been allowed to use an example from outside the jurisdiction?

    1. A 10-second Google search reveals multiple cases in which AR-15 rifles with high capacity magazines were used for defensive purposes, including a case in Houston, Texas in January, 2013 in which a 15-year old boy, the son of a Harris County Deputy Sheriff, used his father’s AR-15 to protect himself and his 11-year old sister from 3 home invaders that had broken into the house. Another case, in Glen St. Mary, Florida in 2018, an AR-15 was used when 7 (yes SEVEN) masked home invaders broke into an occupied house. More than 30 rounds were shot before the attack ended. There are numerous similar examples. But Massachusetts criminals can feel safer today to threaten innocent citizens in their own homes because the idiot judges of the First Circuit (including retired Supreme Court Justice Souter, sitting by designation on that panel) don’t want those citizens to have scary rifles or magazines that hold more than 10 rounds.

    2. Are Massachusetts police exempted from the ban? I’m not optimistic that we’ll ever get it, but I’d like to see a bright-line rule that any type of firearm used by law enforcement is protected by the 2nd when it comes to private ownership. After all, one of the three purposes of the militia listed in the Constitution is to “execute the laws of the Union.”

      Also, the “they can use handguns” argument has, to me, a stink resembling “separate but equal” white & colored drinking fountains: “Colored people aren’t harmed by white-only drinking fountains; they can always use the colored-people drinking fountains, instead.”

      1. “Also, the “they can use handguns” argument”

        And in Heller, the District argued that you didn’t need handguns because you could defend yourself with a rifle.

        It brings to mind some of the VPC arguments from a few years ago:

        1)Semiauto rifles need to be banned because their only purpose is mass killing.
        2)Bolt action rifles (AKA ‘Sniper guns’) need to be banned because their only use is to kill from afar.
        3)Small, low powered handguns (AKA ‘Saturday Night Specials’ need to be banned because … reasons I forget.
        4)Small handguns in common calibers (‘Pocket Rockets’) need to be banned … because.
        5)Large handguns (‘Hand Cannons’) need to be banned so people won’t shoot police with them.

        The Venn diagram probably had some other circles I’m forgetting.

        1. #3 There were too different reasons. First it needs to be noted that the whole ‘Saturday Night Specials’ thing happened before concealed carry permits were a thing. And the first reason (and the most popular) was because they were too easy to conceal.

          However, a couple of states did it for mostly legitimate product safety reasons. A distressing number of the guns classified as Saturday Night Specials were so cheaply made that they were prone to blowing up in the user’s hand and other catastrophic failures.

    3. Yeah, I’m calling shenanigans on that one. There’s NO WAY that all the plaintiffs AND six experts failed to identify AT LEAST ONE case where a high capacity magazine and an “Assault Weapon” were used.
      Given that such incidents DO happen, and even make the news from time to time, either all the experts were incompetent, or the First Circuit decided to stack the deck.

    4. “The case decided the other way in CA just six weeks ago cited multiple instances of homeowners using (or needing) more than 10 rounds to defend their home. Wouldn’t at least one of the 6 experts have read that decision?””

      Pull it up out of memory in answer to a question you weren’t anticipating?
      There’s a reason you say “X couldn’t identify any cases of…” instead of “there are no known cases of…”, because these are hugely different claims, which can and often will give you different results.

  4. “Which I thought might be a ploy to lure me into the cell so he could ambush me.”

    The purple face and convulsions typical of strangulation might have been taken as a clue …

    If the guard couldn’t see the entire cell to check for a “ploy”, that’s the most bizarre prison cell design I’ve ever heard of.

    Legally the court may even have been correct, since by design the “deliberate indifference” standard is almost completely impossible to meet. It is an open question why prison administrators are not liable for negligence, gross negligence, or recklessness, but that is the law today.

    1. He was a big fan of the Goonies. Give him a break.

  5. “Don’t hold your breath” — hats off, sir, and I bet yourbreath was taken away when you saw that golden opportunity.

  6. Another roundup, another list of largely idiotic decisions.

  7. First Circuit: Since you can’t show that magazines over 10 rounds were ever used in self-defense, the law against them stands.

    First Circuit: Although you can’t show that any woman has ever lost insurance coverage for contraception, there may be a risk that some women might lose coverage, so the suit can proceed.

    Consistency apparently not being the First Circuit’s strong suit.

    1. Statutory rights carry greater weight than constitutionally-enumerated ones.

      1. I agree this is indeed an inconsistency.

  8. Chicago towing wars have been going on forever.

  9. “Over a dissent, the Seventh Circuit holds that death from autoerotic asphyxiation, even if accidental, still involves an “intentionally self-inflicted injury” that can prevent a life insurance payout. The Second and Ninth Circuits disagree. (Will the Supreme Court resolve the split? Don’t hold your breath.)”

    Correction: Don’t hold your breath – and masturbate.


  10. On the Massachusetts lawsuit regarding religious exemptions, the standing claim appears to be standing at two removes. Organizational standing is already standing at one remove. A mere risk a future violation might occur is standing at another. Put them together and standing is really attenuated. I would enforce traditional standing tiles. If anyone is actually affected, they are perfectly capable of suing themselves when and if it occurs.

    State standing is particularly likely to get courts into political debates by other means. I would only allow it if it’s very clear that there’s a direct effect.

    Courts both on the right and on the left seem to be rushing to decide questions when traditional standing considerations would dictate forbearance. Judges seem to be desirous of getting their opinions out to the public on the hot-button issues of the day.

  11. The ICE case presents a potential hole in due process protections for citizens, whatever one might think about whether aliens, legal or otherwise, have or should have the same protections.

    Basically, ICE can seize a citizen ostensibly on immigration grounds and put them in a prison or whisk them out of the country, with essentially no remedy. That’s a problem. It raises the possibility of an extra-legal parapolice force, free of constitutional protections, which has no restraint if it doesn’t limit its activities to the mission it was created for, an potentially gives a rogue executive totalitarian-level powers. Habeas corpus can free people, if their jailers are kind enough to allow their mail to the courts to go through. But there are no real consequences if they don’t.

    1. There’s nothing “potential” about it

      The US Keeps Mistakenly Deporting Its Own Citizens

      Recent data suggests that in 2010 well over 4,000 US citizens were detained or deported as aliens, raising the total since 2003 to more than 20,000, a figure that may strike some as so high as to lack credibility,” Stevens wrote in a 2011 report. “But the deportation laws and regulations in place since the late 1980s have been mandating detention and deportation for hundreds of thousands of incarcerated people each year without attorneys or, in many cases, administrative hearings. It would be truly shocking if this did not result in the deportation of US citizens.”

  12. […] Short Circuit: A Roundup of Recent Federal Court Opinions The Punisher, compelled self-incrimination, and a unicorn amongst unicorns. […]

  13. On the 9th circuit marijuana grow farm bankruptcy case, one quick way to tell if one gerrymandering the law into an unintended meaning is to give it a meaning that only applies to situations that can never happen.

    How can a plan of reorganization possibly be PROPOSED illegally? The debtor sends in a strongman to threaten the judge with it instead of a lawyer to request it? The 9th circuit pays no attention to this detail. However absurd a plan may be, it seems difficult to image it a case where its proposal could be illegal.

    Do they mean a frivolous plan of reorganization?

    Perhaps bankruptcy law experts could enlighten me.

  14. ” Unlike the standard unicorn—”majestic and even magical,” in the Fourth Circuit’s experience—defendant class action unicorns can suffer from hideous deformities relating to due process and to inadequate representation of absent class members.”

    The reader might mistakenly believe that the Fourth Circuit struck down a defendants class in that case, but unfortunately the class certification was upheld.

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