Short Circuit: A Roundup of Recent Federal Court Decisions

Litigation financing, campaign financing, and salmagundi.

|The Volokh Conspiracy |

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

IJ's own Diana Simpson was on NPR discussing Chicago's vehicle impound system, which imposes tens of millions of dollars in fines and fees annually and is insanely unfair to residents, afflicting the innocent as well as the guilty and the poor most of all. Click here to listen.

  • Fan of the Libertarian Party dies, leaves the party a surprise gift of $235k. Uh oh! Campaign finance law imposes limits on contributions to political parties. Libertarian Party: The limits exist to prevent quid pro quo corruption, and we can't repay a favor to a dead guy. D.C. Circuit (en banc): Yeah, but it's conceivable that a donor might strike a corrupt bargain with a campaign before they die, so the limit is fine. Dissent: This is the First Amendment; you need real evidence, not just speculation.
  • Federal law authorizes retired law enforcement officers to carry concealed firearms all over the country (subject to some conditions), overriding state and local laws to the contrary. D.C.: Retired corrections officers don't count, as they didn't have the power to arrest anyone. D.C. Circuit: They do and did.
  • Friends, please enjoy this vocab quiz from Judge Selya of the First Circuit: Perfervid, salmagundi, immurement, plaint, ossature, praxis, and tenebrous. Plus, a scrutable idiom: "nose-on-the-face plain."
  • Lawful permanent resident, a hairdresser from the Bronx, is jailed for several months awaiting deportation hearing, during which time she experiences severe mental health breakdown. She prevails at her hearing; Orange County, N.Y. officials release her in sub-zero temperatures without her medication or any way of obtaining more (or even knowing what medication she needed). Second Circuit: She's plausibly alleged officials failed to provide adequate discharge planning in violation of the Fourteenth Amendment. The suit should not have been dismissed.
  • The Trump Administration failed to adequately explain its reasons for rescinding DACA, an Obama administration program delaying deportation for immigrants who came to the U.S. illegally as children. Which violated the Administrative Procedure Act. So says the Fourth Circuit (over a dissent).
  • Man buys gift for friends on Amazon—a headlamp. It's defective; it burns down his friends' Montgomery County, Md. home. Must Amazon pay the friends' insurer? The Fourth Circuit says no; under state law, Amazon is not a "seller" as it never took title to the lamp. Concurrence: Which is about the only thing Amazon didn't do; it warehoused the lamp, took payment for it, and assumed the risk of credit card fraud, among things. Maryland legislators and judges might want to look into this.
  • Litigation financing, heartbreak, and recusal collide in this Texas-sized debacle. A litigation financing company has a stake in 21 lawsuits being litigated by a Mexican law firm. But one of the law firm's owners is embroiled in a divorce in Texas, and his interest in the law firm is part of the marital estate. So the litigation financing company intervenes in the divorce proceeding to protect its investment in the law firm and to collect debts owing to the firm. But the lawyer the company hires to collect the soon-to-be-divorced lawyer's debts turns out to also be law partners with the divorce court judge. Which—when uncovered—explodes the litigation financing company's efforts to recover its investment and leaves it having wasted $2 mil in attorney fees. Yikes! But that's just the beginning. The litigation financing company then sues the lawyer for malpractice. No, not the lawyer getting the divorce. The other one; the one it originally hired to recover its investment but who had the business relationship with the judge. And in response to the company's suit, the lawyer commits what the Fifth Circuit later describes as a "litany of litigatory misbehavior." Which leads to the district court's striking the lawyers' pleadings, entering a default judgment in favor of the litigation financing company, and awarding nearly $3 mil in damages. Fifth Circuit: The default judgment shall stand, but the district court needs to recalculate the damages award.
  • Man allegedly violates his probation; his probation officer gets a Houston County, Tenn. judicial commissioner to revoke it. He goes to jail for several months. But wait! A state court judge rules that Tennessee judicial commissioners, who can issue search and arrest warrants, do not have the authority to issue probation revocation warrants. Can the man sue the commissioner? The Sixth Circuit says no. Judicial immunity.
  • Since 2014, Bel-Nor, Mo. resident has displayed a "Black Lives Matter" sign in his front yard; since 2016, he has also displayed two (now-outdated) political signs. City: Under our ordinance, you're allowed one "sign" and one "flag"—which we've defined to mean a piece of fabric that is a "symbol of a government or institution"—and none of your signs are a flag. Eighth Circuit: The city's different treatment of "signs" and "flags" is content based. A banner with an Army logo would qualify as a "flag," but one with a Cardinals logo wouldn't. That makes the ordinance likely invalid under the First Amendment, so the resident gets a preliminary injunction while the case proceeds.
  • Man is sent to prison for 145 years on strength of his eighth grade stepdaughter's testimony that he abused her. She recants, but a state court determines the recantation was not credible, and the Colorado Supreme Court declines to order a new trial. Tenth Circuit: His claim that the trial court relied on false testimony (in violation of due process) doesn't work since the allegedly false testimony was from a private citizen and he can't show the gov't knew it was false.
  • Gorilla Gym infringes Gorilla Playsets' trademark, as both use a similar size and type of gorilla for their children's playground equipment, says the Eleventh Circuit. But the district court was monkeying around when it ordered the infringer to pay its profits for continuing to use the trademark after being sued. After all, it was, at the time, a legal trademark that no judge had ruled against.
  • And in en banc news, the Ninth Circuit has asked the Montana Supreme Court for its view on whether dinosaur fossils are owned by the owner of the land on which they're found or instead by them that own the rights to mine minerals under that land.
  • And in further en banc news, the Seventh Circuit will not reconsider its decision applying the "doctrine of consular nonreviewability." Come for the initial decision (a U.S. citizen cannot challenge a consular official's decision to deny his Yemeni wife and children a visa because it isn't clear that the ability to live in America with one's spouse is a protected constitutional right (and, even if it were, the decision was legit)), stay for the fiery back and forth between the dissental and concurrence regarding the denial of rehearing. (Judicial abdication! Rights of citizenship! Bad faith of immigration officials!)

It was a good week for the First Amendment. In North Dakota, a federal judge issued a temporary restraining order barring the city of Mandan from imposing thousands of dollars in fines on the owners of the Lonesome Dove saloon (for now). The owners' crime? Commissioning a painted mural on the side of their building that features a sunset over a landscape with mountains and cowboys and the words "Lonesome Dove," which the city deemed an unlawful commercial message. Click here to learn more. In Savannah, Ga. a federal judge ruled that the city's tour guide licensing law, which, among other things, had imposed a 100-question test filled with picayune trivia on would-be guides, violated the First Amendment. "Today's ruling vindicates a simple principle," says IJ Senior Attorney Robert McNamara. "In this country, we rely on people to decide whom they want to listen to. We do not rely on government to decide who will get to speak." Click here for more.

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

  1. Instead of saying “nose-on-the-face plain,” Judge Selya could have just used the word “pellucid”, a perfectly good word that is underused.

    1. He already used it twice in that opinion…

      1. Oh my gosh you aren’t kidding about that. Judge Selya is certainly a sesquipedalian.

  2. I’m still having trouble with DACA. It never went through the comment period of of the APA which (should) mean it isn’t a valid regulation. How can a policy never officially implemented be challenged under as an APA violation?

    1. Indeed, how can it be illegal to terminate immediately without a comment period a program which was illegally adopted without a comment period in the first place? It should be mandatory to do that, not illegal!

      1. The Fourth Circuit didn’t find that the rescission of DACA was invalid because there was no notice and comment period. To the contrary, it agreed with the district court that the rescission didn’t require notice and comment.

        The Fourth Circuit found that the rescission of DACA violated the APA because it wasn’t adequately explained and thus was arbitrary and capricious.

        1. But why isn’t a simple “were revoking this because it was unlawfully implemented initially” not sufficient on its face? Don’t know if they made that argument, but it should win.

          Counter example: police arrest a man for violating a non-existent law. Judge determines that there was no violation, since the officer was mistaken as to the law, and so declines to order bail since there’s no accusation of a violation. Jail refuses to release man because there’s no bail, and tells him he’ll need to file a writ of habeas corpus. State shrugs its shoulders and says there’s nothing they can do, he was arrested without lawful authority, but he’ll just have to go through federal court to get an order for release.

          That’s obviously wrong, and correcting prior errors “because there was never a legal authority to do it in the first place” has to be sufficient justification, or were living in a dystopian tragedy.

          1. “That’s obviously wrong, and correcting prior errors “because there was never a legal authority to do it in the first place” has to be sufficient justification, or were living in a dystopian tragedy.”

            Guess what…

            1. Yeah yeah, FYTW. I understand.

      2. Brett, this was litigated; calling it illegal is being ignorant. Not all regulations need notice & comment, and this one was held not to.

        You can disagree with that case, but it looks more like you just call stuff you don’t like illegal.

    2. “I’m still having trouble with DACA. It never went through the comment period of of the APA which (should) mean it isn’t a valid regulation. How can a policy never officially implemented be challenged under as an APA violation?”

      The people who acted assuming it was valid have an argument for detrimental reliance. So you might get different legal answers for people who applied for DACA while Obama and Trump were still acting like it was valid, and for people who want to shelter themselves under it now.

      Note that there’s sufficient discretion to allow it to exist… the law says that anybody who’s here illegally can be deported, but it also says “but the government has to give you a hearing before it can actually remove you” and “the number of hearings that can be taken and the number of people they could potentially be given to are wildly dissimilar” This inherently means that the President (or various underlings) can decline to remove any specific illegal until all the other illegals are given hearings and removed.

      Even if the wall were finished tomorrow AND magically worked 100% to stop people from illegally arriving, you still need about 40 years at the present rate to process all the illegals already here.

      1. I’m not sure I get the detrimental reliance angle.

        Not honoring your predecessors promise is a raw deal for the immigrants, but what right have they given up? The right to continue to hide? I mean, “don’t be a dick” is a good rule to live by, but I don’t think it’s enforceable on the executive (that would be awesome though – monthly votes on every elected official, and for each time the electorate decides you were a dick that month you get a month in prison.

        1. ” “don’t be a dick” is a good rule to live by, but I don’t think it’s enforceable on the executive (that would be awesome though”

          If it was enforceable on the executive, the entire federal bureaucracy would be obliterated.

        2. “I’m not sure I get the detrimental reliance angle. ”

          “Come forward and we won’t deport you for at least 2 years.”
          “OK. Here I am.”
          “Ha, ha! Just kidding. We’re going to deport you right now.”

  3. re: the vocab quiz – I knew 2, guessed right on 2 and recognized 2 more as words I learned in 10th grade (and have probably never seen since).

    re: the Maryland concurrence – Or you could look into charging the people actually responsible – the manufacturer of the defective product. ‘Sue the seller’ made some sense when it was difficult or even impossible to know who the manufacturer was. (For example, when a retailer sources a commodity such as bolts of a common size from multiple manufacturers and stores them all in a common bin.) That model makes little sense in a scenario where everyone has detailed transaction logs and embedded metadata.

    1. According to the decision, the brand was Dream Light. Looking up headlamps on Amazon I do not see that brand listed, so identifying and suing the manufacturer might be kind of tough, transaction logs and metadata notwithstanding, especially if it’s in a foreign country.

      That doesn’t make Amazon liable, necessarily, but it does mean “sue the manufacturer” is not always a great solution.

      1. I was going to make the same comment as Rossami did… rather than having the legislature take note, perhaps Maryland lawyers should take note, and sue the maker of defective goods.

        Your counterargument that it’s hard to find the actual manufacturer isn’t true for the person who actually bought the defective product from the manufacturer. (OK, having your house burn down does give you SOME latitude for not having all your documents in order.)

        On the other hand, I’m pretty sure a letter printed on law firm letterhead explaining that says “I bought this thing through you and darn if the product didn’t burn down the guy’s house I gave it to. We’d like to sue the manufacturer instead of you. Would you mind helping us identify them?” sent to Amazon’s legal offices would produce all the information needed. I’d even give odds that the same letter, on insurance company letterhead, would do the trick.

      2. Amazon is guaranteed to have all that detail still in their logs. I’m sure of it because I can see similar records in my own order history on Amazon. I’ll grant that it might require a subpoena to Amazon for the legal identity and contact information of the manufacturer but that’s a fairly trivial step.

      3. I believe that to sue a company in a foreign country you have to serve process at the country’s embassy for them to forward it. Guess how speedy and diligent they will be.

        1. Maybe think of that before contracting with a foreign company.

          1. Or maybe Amazon is the cheapest cost avoider and should be given the responsibility of determining which foreign manufacturers are reliable.

            1. What the hell, let’s just pick YOU to be responsible for all the products sold on the Internet. If any of them turn out to be defective, any user(s) harmed by the product(s) can sue you.

              As long as it’s not me, it’s all the same, right?

  4. Gorilla Gym monkeying around. Uh, gorillas are apes, and not monkeys (though both are simians).

    1. Monkey as a common term is a paraphyletic taxon, all apes, including humans, are descendants of monkeys.

      It is pretty much orthodoxy in anthropology that a monophyletic taxon of Monkeys exists, and it is even in current popular usage. For example if someone points at say a bonobo and said: “look at that funny monkey”, nobody would be particularly confused. And it is not uncommon to define the Apes as a monophyletic taxon of Old World Monkeys.

      1. Quit gibbon him the business.

        1. boo.

          hiss.

        2. Quit pulling macaque

    2. I knew that too.

    3. “gorillas are apes, and not monkeys (though both are simians).”

      Apes can act like monkeys, except for the parts of acting like monkeys that require prehensile tails, which apes lack.

      1. Is that a prehensile tail, or are you just happy to see me?

    4. Not all metaphors and idioms have to use scientific terminology.

  5. False recantations are a known phenomenon but any plausible recantation is reasonable doubt.
    “Plausible” would include being consistent with physical evidence and not the result of pressure.
    I will be pleasantly surprised if the government did not in fact know that there were problems with the testimony. In the George Gage case, they did. The prosecutors had a statement that the complaining witness was a “pathological liar”, from her own mother.
    I admit I had to look up “salmagundi” and “ossature”.

    1. The 10th circuit held that it is absolutely irrelevant whether the recantation was credible or not. All that matters is if the first trial violated the constitution. It didn’t. It’s not a constitutional violation for a private citizen to testify falsely as long as the government didn’t know it at the time. And since the trial had no constitutional error, what happened is no concern of the federal courts. It simply doesn’t matter if the person later turns out to be innocent. The opinion assumes he is innocent. They said that as long as the conviction was obtained lawfully, innocence just doesn’t matter. Once lawfully convicted, a person has no constitutional right to a new trial no matter what new evidence later turns up, and no matter how overwhelmingly it establishes innocence. Tough luck.

      1. A person who can show that they were falsely convicted has an avenue to pursue… executive clemency.

        1. I thought pardons were an admission of guilt? Of course our entire legal system is more and more based on requiring people to confess to crimes they didn’t necessarily commit…

          1. “I thought pardons were an admission of guilt? ”

            You thought incorrectly.

      2. ReaderY: “innocence just doesn’t matter”

        IANAL, so help me out here. When they say “actual innocence” doesn’t matter, don’t they actually mean a /claim/ of actual innocence doesn’t matter? As opposed to “We all know he’s actually innocent, but whatcha gonna do?”

        1. It’s more like, “since it’s not the federal courts’ business even if the claim of actual innocence is true, we’re not going to decide here if we think it’s true or not.

      3. This is not my field, I know I can be wrong.
        I had thought that evidence that could not have been discovered at trial time indicating actual innocence was grounds for a habeas petition.
        Right? Wrong?

        1. The trial court decided that the recantation was false, so there isn’t any new evidence for the federal court to consider.

    2. False recantations are a known phenomenon but any plausible recantation is reasonable doubt.

      Which makes it significant that the state trial court judge found (in a decision that appears clearly correct to me) that the recantation was not plausible.

  6. Retired cops carrying guns

    “No Title of Nobility shall be granted by the United States”

    A Life Peerage is a title of nobility

    1. The theory behind the LE Officer Safety Act was the retired cops would need to carry guns due to the bad guys they put away possibly wanting revenge in jurisdictions that otherwise wouldn’t allow for it, and that all cops should be able to carry for self defense outside their jurisdictions. It still requires retired officers to get a level of training given to them by the department. It’s more of a permit system for retired officers, and a form of national concealed carry reciprocity for active officers.

      1. No, the “Ordinary gun laws don’t apply to these people, because they’re Special as former King’s Men” element means that it’s still a patent of nobility, even if motivated by “they really need it and they really deserve it.”

      2. Yes, that makes sense, but then if it is appropriate then states can issue these patents of nobility, the United States though is doing it against the states.

      3. Former correctional officers should be covered under that intent, then, since they will have many people eager for revenge on them.

        1. Most correction officers work unarmed. This is because it’s generally a bad idea to take guns to near where the prisoners are kept.

          That’s the difference… cops carry as part of the job, and COs don’t. Also, depending on where you are, police officers are sworn officers, and COs are not sworn (in fact, some are not even public employees)

  7. I knew praxis and tenebrous without looking them up, but I’m curious as to why we’re getting a vocab test. Did someone use those other words in a trial or something?

    1. I would infer that these words (and phrase) were used in a circuit court opinion.

      1. In point of fact, they were all used in one specific opinion issued by the 1st Circuit.

    2. Judge Selya is known for using obscure words in his opinions. The words on that list were used in the opinion linked here.

  8. The courts never fail to apply immunity…..to the courts.

    Where, exactly, is immunity specified in the Constitution? And how is such a finding congruent with Article I section 9? And Article IV, section 2?

    1. “Where, exactly, is immunity specified in the Constitution?”

      Right in the beginning of Artilcle III. The supreme judicial power is vested in one Court, plus as many more as Congress sees fit to authorize.

      1. That may apply to the Supremes, but where are the laws passed by Congress that apply to the lesser courts, giving them rules to operate by?

        And how does that apply to State courts?

        1. “And how does that apply to State courts?”

          States are also sovereign. Can you sue the sovereign without sovereign permission?

  9. I agree with the dissent in the DACA case. The same broad discretion which gave the Obama administration the power to implement DACA gives the Trump administration the power to rescind it.

    The 4th Circuit majority’s opinion that the Trump administration gave an inadequate reason for rescinding DACA is, in my view, complete nonsense. Immigration enforcement is the law. It’s a law enacted by Congress. An administration needs no other reason to enforce the law than that’s what the law is. The President has a duty to take care that the laws be faithfully enforced. That duty alone is always reason enough. A new administration is always entitled to enforce existing laws more strictly than a prior administration did. And it simply doesn’t matter whether the prior administration’s leniency reflected a written or an unwritten policy.

  10. If I were a defense lawyer in the 4th Circuit, I would file a motion in every single criminal case that I had that the prosecution must be dismissed because the prosecutor failed to adequately explain the reasons for prosecuting. In the 4th Circuit, that fact that something is a violation of the law is simply not a good and sufficient reason for prosecuting it. This we know for sure. What we don’t know is what a good and sufficient reason might be. Until the 4th Circuit explains itself better, I would challenge each and every federal prosecution as being improper.

    1. Alternatively, if the reasoning is limited to reversing prior decisions not to prosecute, I would move for disclosure of prosecutorial deliberations to find out whether there was ever a prior decision not to prosecute that was later reviewed and changed. If there was, I would then challenge the decision to overturn the prior decision as being based on inadequate reasoning.

    2. “If I were a defense lawyer in the 4th Circuit, I would file a motion in every single criminal case that I had that the prosecution must be dismissed because the prosecutor failed to adequately explain the reasons for prosecuting.”

      Then you’d get laughed out, and the proceedings could continue.

      The problem isn’t that the President has to explain why he wants to prosecute. The problem is that the President has to explain why he wants to prosecute people he previously told would not be prosecuted.

      If a prosecutor (in the 4th circuit) grants immunity to somebody, and then tries to prosecute them, should the court accept this without discussion, or say “hey, wait a minute…”

      1. Nobody in DACA was granted immunity. Do you care to try again?

        1. “Nobody in DACA was granted immunity”

          Everybody in DACA was granted temporary immunity.

          “Do you care to try again?”

          No. You?

      2. Let me expand for you James…

        Comey stated he told Trump that he was not under investigation for collusion with Russia, in this case per your statement this would be seen as a granting of immunity. (It isn’t, but that is what you are inferring). Would you agree Trump should never have been investigated by the SP on this thesis?

        1. “Comey stated he told Trump that he was not under investigation for collusion with Russia, in this case per your statement this would be seen as a granting of immunity.”

          Are you expecting this to be taken seriously? Prosecutors grant immunity, not cops.

      3. “If a prosecutor (in the 4th circuit) grants immunity to somebody, and then tries to prosecute them, should the court accept this without discussion, or say “hey, wait a minute…”

        This analogy doesn’t work. By it’s nature, Trump’s recision only applies to people who continue to be unlawfully present after the recision.

        1. ” By it’s nature, Trump’s recision only applies to people who continue to be unlawfully present after the recision.”

          By it’s nature, it applies to nobody.

          1. Let’s try this again. President Hunter decides there are two many bald eagles in the wildlife sanctuary and announces he won’t prosecute people who hunt them if they obey certain rules, say an annual bag limit. Then president Avian comes into power and rescinds the rule, insists hunters leave the sanctuary and announces anyone found there will be prosecuted.

            Perhaps hunters have a right not to be prosecuted for things they did before the recession. But does this also give them a permanent right to continue to remain in the sanctuary and hunt there afterwards?

            1. Revision:

              Suppose President Hunter issued hunting licenses good for two years. President Avian attempts to rescind those licenses only one year in.
              Can the hunters who spent money anticipating next years’ hunt complain that having their licenses invalidated prior to their expiration cost them money?

              1. Congress has prohibited hunting in the park. So while President Hunter has a right to decline to prosecute, he doesn’t have a right to issue licenses binding on his successor, still less to charge for them. The Take Care Clause would prohibit it.

                Perhaps the hunters have a right to a partial refund. But they certainly don’t have a right to hunt.

                1. “So while President Hunter has a right to decline to prosecute, he doesn’t have a right to issue licenses binding on his successor”

                  You’re not supposed to change the hypothetical (say, by adding new rules) after you offer it initiallly. Leaving the hypothetical, if you are assuming this rule applies in real life, why are you assuming this?

  11. Salmagundi want pants too!

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