Short Circuit: A Roundup Recent Federal Court Decisions

Gluten sensitivity, rectal probes, and troubling electrical towers.

|The Volokh Conspiracy |

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

New on the Short Circuit podcast: cursing drivers, revoked driver's licenses, and peeping police.

  • Army Corps of Engineers authorizes Virginia power company to build electrical towers across a river. Conservation groups sue. In the district court, the Corps opposes a preliminary injunction: Don't worry, we can always remove the towers later. Then again, opposing an injunction pending appeal: Don't worry, we can always remove the towers later. The D.C. Circuit invalidates the project. Then the Corps: Actually, we finished the project a week before the circuit decision and didn't tell anyone. Since there's $400 mil invested in the towers, can they please stay up? D.C. Circuit: This is "more than a little troubling." The district court will decide whether the Corps is barred from making this argument.
  • Gluten-sensitive boy goes to restaurant in Colonial Williamsburg. The restaurant won't let him sit and eat the gluten-free food he brought for himself. (Doing so might be against the local health code avers the restaurant). Fourth Circuit: Could be a violation of the Americans with Disabilities Act. The boy's suit can proceed to trial.
  • Hillview, Ky. police discover mayor's son, backpack filled with meth-making materials at the mayor's home. To save the mayor embarrassment, the police chief orders the officers to remove the backpack. They do, but an officer reports the incident to the authorities and word leaks to the public. Two officers who cooperate with an FBI investigation are subjected to series of dubious disciplinary actions. Sixth Circuit: Smells an awful lot like First Amendment retaliation.
  • Allegation: Allen Park, Mich. officer arrests motorist without probable cause, tightens handcuffs to the point of bruising, takes him to jail, strips him, repeatedly searches his groin, probes his rectum, and, for good measure, throws his wedding ring across the room. There's no contraband to be found. Qualified immunity? Sixth Circuit: No.
  • Child porn recipient gets enhanced sentence because 40 years earlier, when he was 16, he had sexual contact with a boy of 11 or 12. The enhancement requires a 4-year age difference, and 16 minus 12 equals 4, right? Sixth Circuit: Just subtracting the ages could overstate the difference. If the defendant had just turned 16 and the boy was almost 13, the difference would have been closer to 3 years. The sentencing judge should have counted in days. The birthdays aren't in the record, so remanded for more information.
  • Indianapolis DEA taskforce members barge into suspected drug dealer's house, find oodles of meth, and then use that evidence after the fact in their application for a warrant to . . . search the house. "We do not condone this illegal behavior," says the Seventh Circuit. But even so, the district court rightly declined to suppress the oodles of meth at trial. The DEA's warrant application had enough other information to establish probable cause. And despite one officer's contradicting himself on the stand, the district court reasonably found that agents were going to seek the warrant whether or not they found the meth.
  • Man collects unemployment benefits but is actually still working. Fraud! He's sentenced to probation but could have served a max of five years. Seventh Circuit: It does not violate the Second Amendment to prohibit him from possessing guns. His crime may not have been violent, but it was serious. And 40% of nonviolent felons are caught committing subsequent crimes (some violent)—who knows on which side of the line he'll fall?
  • As every lawyer knows, quia timet—Latin for "because he fears"—is an equitable claim for protection from probable future harm. Learn more in a scholarly Seventh Circuit opinion featuring Coke and Story, writs of brevia anticipantia, and even ə—the International Phonetic Alphabet symbol for the schwa sound. [Short Circuit warns you that the facts are about surety bonds, but you can just read around that.]
  • Passing motorist shouts profanity (a well-known phrase that has inspired artists ranging from Cee Lo Green to Lily Allen) at Arkansas state trooper who is conducting a traffic stop. The trooper then pulls over the shouter and arrests him for disorderly conduct. Eighth Circuit: No qualified immunity for that. A two-word unamplified outburst is not disorderly, and criticizing the cops is protected speech.
  • Anti-abortion organization allegedly infiltrates meetings of pro-choice group, secretly films the meetings, then edits those films to inaccurately portray pro-choice folks as participants in the unlawful sale of fetal remains. Pro-choice group sues, and the district court preliminarily enjoins the anti-abortion group from disseminating the films. But the anti-abortion group, its founder, and its lawyers (in a different case) keep making the videos available on YouTube. Civil contempt sanctions ensue in the form of $195k to be paid by the anti-abortion group (and its founder and lawyers) to the pro-choice group. And because that order is not a final judgment, we lack jurisdiction to review it at this time, says the Ninth Circuit.
  • Acting on an anonymous tip that a black man has been seen carrying a firearm—totally legal in Washington state—Seattle police make contact with a black man. Seeing the cop cars and patrol lights, the man runs, is seized, and is found to possess a gun, drugs, and cash. All of which should have been suppressed, says the Ninth Circuit. An anonymous tip about presumptively lawful activity does little to support the suspicion needed for the stop. Nor does the fact that the man fled. Particularly given "racial disparities in policing," many innocent minorities may reasonably be disinclined to interact with law enforcement; in fact, the Seattle Police Department itself is subject to a federal consent decree focusing on eliminating constitutional violations. Concurrence: But just to be clear, there's no evidence that this particular stop "fits into a longer history of Seattle law enforcement engaging in racially discriminatory policing."
  • And in en banc news, the Eleventh Circuit will reconsider its decision to unseal grand jury records related to 1946 murder of two African American couples in front of a large crowd in Walton County, Ga., perhaps the last mass lynching in American history.

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

  1. “Anti-abortion organization allegedly infiltrates meetings of pro-choice group, secretly films the meetings, then edits those films to inaccurately portray pro-choice folks as participants in the unlawful sale of fetal remains. ”

    I think you didn’t quite get that right. Nobody disputes that they infiltrated the meetings. (Whether it was done under “false pretenses” is disputed, though.) It’s the “inaccurately” that’s alleged.

    In fact, that the defendants also provided links the to raw footage suggests the claim of inaccurate portrayal is somewhat dubious. That’s not something you normally do when aiming to deceive.

    1. Pro-choice group sues, and the district court preliminarily enjoins the anti-abortion group from disseminating the films. But the anti-abortion group, its founder, and its lawyers (in a different case) keep making the videos available on YouTube.

      Care to comment?

      1. Sure. They’re clearly in contempt of a court order prohibiting dissemination of a truthful, not deceptive, video.

        I thought I was pretty clear about the dissemination not being disputed, and the deception being the alleged part. With substantial evidence against the videos being deceptive.

        As a side note, I think the court order runs contrary to the public’s interest in knowing the truth about a matter of serious public concern. I don’t know that that’s legally decisive, but morally?

        Heck, yeah.

        1. They’re clearly in contempt of a court order prohibiting dissemination of a truthful, not deceptive, video.

          The truthfulness remains to be decided. I’m sure you have no doubts, but, contrary to your opinion, your views are not dispositive.

          1. Raw video, remember? They released that, too.

            1. Who are you going to believe, me or your lying eyes?

          2. It only remains to be decided for idiots. The raw video exists bernard. Why you deny this after 2 years is beyond the pale. Stop being ignorant about basic truths. Even the PP paid agency stayed the clips were only edited for time (when talking of the edited clips? Is your claim every news agency falsely edits videos now? Dont be stupid.

            1. From the wikipedia account of the “scandal:”

              On July 30, 2015, former Indiana Governor Mike Pence announced that the state’s investigation did not find any evidence of wrongdoing in Planned Parenthood’s handling of fetal tissue

              Officials in Georgia, Indiana, Massachusetts, South Dakota, and Kansas investigated and failed to find any evidence of Planned Parenthood clinics breaking any state laws concerning the collection of fetal tissues.[39] The state of Pennsylvania cleared Planned Parenthood of any wrongdoing.[40] In September, the Missouri Attorney General found no evidence that the state’s only clinic that provides abortion services mishandled fetal tissues. The report stated, “As a result of our investigation, the Office of the Missouri Attorney General has found no evidence that (Planned Parenthood) has engaged in unlawful disposal of fetal organs and tissue.”[41]

              On October 8, 2015, Republican Representative Jason Chaffetz (Utah), chairman of the U.S. House Committee on Oversight and Government Reform, stated that the GOP investigation found no evidence of wrongdoing by Planned Parenthood.[42]

              And then:

              On November 27, 2015, a gunman shot and killed two civilians and a police officer during a five-hour gun battle at the Colorado Springs clinic.[107][108][109] The 57-year-old gunman[110] surrendered to police and was taken into custody. During his arrest, he gave a rambling interview[111] in which, at one point, he said “no more baby parts,”[112] an apparent reference to protests against the clinic,[113][114] echoing language used in the news media about the clinic.[115][116][117] However, authorities could not clearly identify a specific motivation.

              So maybe you two are right. It doesn’t “remain to be decided.”

              When Mike Pence, Jason Chaffetz, and investigators in GA and MO, among other states, clear PP, the facts are clear, “raw footage” or not.

              The criminals here are Daleiden and Newman.

              1. To be clear, that the state decided that PP’s conduct was legal did not make the exposure of it deceptive, or not entitled to any public interest.

                Nor does some lunatic mentioning it mean it was improper to expose the conduct.

                1. “expose the conduct” ?!?

                  The New York Daily News reported:

                  Statements were spliced together at least 42 times to appear like seamless conversations, the analysis found. Two of the videos were each missing 30-minute chunks of footage […] CMP’s ‘undisclosed edits and cuts distort the meaning of the encounters the videos purport to document,” the analysis said.

                  Maybe there’s a reason all the investigations bernard lists supported Planned Parenthood’s account of the “conduct”, and not Daleiden and Newman. Their version of the “conduct” lasted only as long as the edited videos were the only source…..

                  1. AND, they released the raw video.

                    1. AND, then were exposed as liars. As every investigation proved. They got the proverbial fifteen minutes riding their deception, and then were exposed. That’s all they ever expected, Brett, to win a news cycle or two by their scam.

                      That even today some dupes still buy their con is just the cherry on the sundae to them…….

                2. Anti-abortion organization allegedly infiltrates meetings of pro-choice group, secretly films the meetings, then edits those films to inaccurately portray pro-choice folks as participants in the unlawful sale of fetal remains.

                  It was plain deceptive to portray it as unlawful, since it wasn’t. It was further deceptive, outright dishonest in fact, for so many on the right to claim it was a profit-making activity.

                  As for the gunman, yeah – just a lunatic making an attack that couldn’t possibly have been provoked by all the BS over the videos. There are plenty of anti-abortion activists who think killing abortion providers is justified homicide. Stuff like this crap does nothing to discourage them.

              2. With all the facts in, it seems someone here is “beyond the pale” and it isn’t bernard. I made a general observation years ago, after watching the creepy spectacle the Right made of poor Terri Schiavo. If you recall, they lied about Shiavo’s state, they lied about her doctors, they lied about the treatment she received, they even lied about the standing of the doctors who supported their own cause. They told every kind of malicious fact-free lie imaginable about her husband, from claims of abuse to accusations of murder.

                My observation? When people believe God has signed-off on their politics, Thou Shall Not Lie flies out the window. They gladly engage in the most stomach-churning sleaze possible. In fact, they absolutely wallow in it.

                1. The only decent, defensible ‘Mission From God’ in human history was that of Elwood and Jake.

                  1. What about when Indiana Jones saved us from the Nazis?

                    1. Could we also carve an exception for Graham Chapman, John Cleese, Terry Gilliam, Eric Idle, Terry Jones and Michael Palin? Their search for the Holy Grail was truly God’s work – and in the finest sense.

                    2. He accomplished nothing. If he’d done nothing at all, the Ark of the Covenant would have still toasted those Nazis. Maybe even sooner.

                    3. I’m still trying to figure how he rode hundreds of miles on the outside of a u-boat……

                    4. Brett, once again you offer an opinion that doesn’t shows you didn’t understand what the person you’re replying to actually said.. There aren’t any Arks of the Covenant in the momvie when Indy, on a mission from God, saves us from the Nazis.

                    5. “I’m still trying to figure how he rode hundreds of miles on the outside of a u-boat…”

                      They cut the scene that explained that.
                      The U-boat cruises with the snorkel out of the water. Indy ties himself to the snorkel with his whip.

                    6. Raiders of the Lost Ark was set in 1936, and the first u-boat with a snorkel was in 1943. So he had to be clinging to the periscope, but no submarine keeps its periscope up continuously. Also, only short distances were done underwater absent a snorkel. The sub would have traveled on the surface with a watch atop the conning tower – and there aren’t many places for Mr. Ford to hide on a u-boat deck.

                      Since this branch of the thread has a religious theme, let’s agree to write it off as a divine miracle……

                    7. Raiders is fantasy. In that fantasy world, the Germans had u-boats with snorkels (and found the Ark of the Covenant, and it had divine power, unless you closed your eyes. Don’t forget, the sequels showed magic Indian rocks, magic immortality tokens, and aliens. Not 100% historically accurate, is what I’m saying.)

            2. “It only remains to be decided for idiots.”

              Let us know when you work it out.

        2. I think the dissemination order is also wrong. Ot would fall under something like the Pentagon papers case or prior restraint. We see this type of dissemination from news agencies all the time. What makes this case different? Other than it being an anti abortion group on a planned parent hood laid state.

          1. Under Bartnicki v. Vopper, such distribution is only protected when the distributor is not involved in originally obtaining the video.

            The news media is not liable for distributing illegally obtained but protected footage given to them by others, but they can be if they are involved in the illegal activity.

            1. As I read it, the contempt citation is also being directed at a few people who were not parties to the case, or subject to the original dissemination order, on the theory that, knowing of it anyway, they should have obeyed it.

    2. “Nobody disputes that they infiltrated the meetings. (Whether it was done under ‘false pretenses’ is disputed, though.)”

      The verb “infiltrated” implies false pretenses. They didn’t show up at the door and say “hi! We’re opposed to what you do and we’re going to make videos and distribute videos that make you look like criminals. Can we come in?”

      1. They also signed NDA’s, apparently. But hey, they were on a mission.

  2. “(Doing so might be against the local health code avers the restaurant). Fourth Circuit: Could be a violation of the Americans with Disabilities Act. ”

    Fantastic. Violate one law or another.

      1. Supremacy Clause settles the issue.

  3. “Sixth Circuit: Smells an awful lot like First Amendment retaliation.”

    So… the standard is higher than something similar to a “probable cause” standard? Color me shocked.

  4. “Indianapolis DEA taskforce members barge into suspected drug dealer’s house, find oodles of meth, and then use that evidence after the fact in their application for a warrant to . . . search the house. ‘We do not condone this illegal behavior,’ says the Seventh Circuit.”

    Before immediately condoning the illegal behavior.

    1. So long as the officers were punished afterwards and there was sufficient evidence for conviction after eliminating all the evidence from the illegal search, which appears to be the case in this situation.

      1. There’s zero likelihood they were punished afterwards.

        1. They might have been given a paid vacation, though. That appears to count as “punishment” so long as you call it “administrative leave”, or something like that.

  5. More than a little disconcerting to see IJ adopting the language of abortionist-propagandists in its appellate reporting, i.e. “anti-abortion” and “pro-choice.” Framing the issue as one side being “anti-X” and the other side being “pro-Y” is incredibly dishonest.

    1. As a rule, I agree with your general point. But it’s hard to do ‘fairly’ here. Pro-life does not fairly describe one side. The organization exists to oppose abortion . . . and it does this unapologetically. I know tons of pro-choice men and women who consider themselves extremely pro life. Vegetarians, against capital punishment, generally against wars, etc.. I think it’s totally fair to call this group anti-abortion.

      But I do think it’s biased to not call the other side “pro abortion.” Calling that group pro-choice really glosses over *that* groups reason for existence…to keep abortion legal, safe, etc.. (I guess the best defense of using “pro choice” is the argument that no one actually wants more abortions–rather, they want women to have the freedom and access to abortions, should an individual woman make that decision. But ‘Pro choice-to-have-an-abortion-should-I-so-decide’ does not flow trippingly off one’s tongue.)

      1. Although pro-abortion rights, I first recall noticing this over 20 years ago when Peter Jennings lead off the ABC evening news one night with “People opposed to a woman’s right to choose…”

        They weren’t opposed to choice. They felt life was more important.

        If you call each side what they feel, it’s pro choice vs. pro life. If you are feeling rhetorical, it’s pro abortion vs. anti-choice. They have different things they place the highest value on.

        1. Krayt.
          “They weren’t opposed to choice. They felt life was more important.”

          No, by your own definition, those people WERE opposed to choice. Their view is, “Abortion is murder. Or, at least, abortion is some sort of killing of a human/fetus, which should have rights equal to a post-birth person. Therefore; no, a woman should NOT have the right to choose to abort her pregnancy. She should not have that choice at all.”

          They are anti-choice, and–I think–proudly so. If their position was, “I hate abortion, but all you women should, individually, have the right to chose to do this, even if I absolutely disapprove.” . . . then their position would be the one taken by a lot of the pro-choice side.

          1. They’re not opposed to “choice”, any more than the other side is in favor of it. Pro-lifers are in favor of choice in most contexts, pro-‘choicers’ are opposed to it in many contexts.

            Pro and anti-abortion is really more to the point, though I can understand why the pro abortion side might think it’s a little too accurate for PR purposes.

            1. Oh for Pete’s sake, Brett. The issue is whether women should be allowed to terminate a pregnancy, not whether they should be allowed to decide what kind of car to buy.

              In that context, those who regard abortion as a criminal act to be outlawed are plainly anti-choice. I can understand the moral opposition to abortion, but not the claim that the opponents don’t oppose choice. That’s exactly what they oppose. “You’re pregnant? Your only option is to carry to term.” No choices there. Stop the tendentious BS.

              1. Except you dishonest fuck 99% of abortion regulations are post 2nd trimester like most of the sane non baby killing world. So women have a choice, just not when the entity with unique human DNA is viable to live outside the womb. Stop being dishonest.

                1. “Except you dishonest fuck 99% of abortion regulations are post 2nd trimester like most of the sane non baby killing world.”

                  If you’re going to start calling people dishonest fucks, may I suggest you not make dishonest claims while doing it?
                  The reason most current abortion laws are limited to the third trimester is because the ones that aren’t get tossed out by courts. This most-abortion-laws-only-apply-in-the-third-trimester isn’t what the anti-abortion folks picked out… if you gave them the freedom to do so, they’d vote for “no abortion ever under any circumstances” first.

                  To see this, all you have to do is look at the current wave of anti-abortion laws that are being passed, where they hope to trigger a Supreme Court review that overturns previous rulings.
                  They ARE anti-choice, but limiting choice isn’t their driving goal… most of them would be happy if all the people who can choose would choose their way freely. But since some of them don’t choose their way, they’d like to overrule THOSE peoples’ choice.

                  1. Anti-choice places the emphasis on the wrong syllable. Yes, we believe women shouldn’t be able to choose to terminate some pregnancies (most of the pregnancies terminated would still be terminated), but that doesn’t mean we’re doing it because we believe women shouldn’t choose. We believe it because we don’t think anyone should be able to terminate an otherwise viable life.

                    Anti-choice makes it sound like we just don’t want women having autonomy. If men could get pregnant, the same standard would apply. We’re just at an impasse because protecting life unfortunately means stopping women from choosing. Just as you claim to not take pleasure in aborting, we don’t take pleasure in telling women what to do with something in their body either.

                    1. ” that doesn’t mean we’re doing it because we believe women shouldn’t choose. We believe it because we don’t think anyone should be able to terminate an otherwise viable life.”

                      It’s not that you think WOMEN shouldn’t choose, it’s that you think NOBODY should choose. But you’re against anyone CHOOSING an answer that’s different from the way you’d choose. It’s a side-effect.

                    2. ” Just as you claim to not take pleasure in aborting, we don’t take pleasure in telling women what to do with something in their body either.”

                      I believe you are speaking for yourself here. But there are some who take up the anti-abortion side of the debate (whatever you want to call it.) who are anti-sex, in general, and don’t want people to have sex because… whatever reason. Don’t care, and they don’t talk about it, either, so it’s hard to get a direct answer. Women who have sex and get pregnant should have to have the baby because babies are punishment for having sex.
                      (Obviously, I don’t agree with them… get people the contraception they need to have whatever sex they enjoy, and the abortion rate can go down because people won’t be using abortion for birth control. Abortion is bad birth control because of all the moral issues AND because it’s inefficient and labor-intensive.

                    3. “If men could get pregnant…”

                      Where have you been hiding? Haven’t you heard the news? They can.

              2. Someone is not understanding their own rhetoric. Claiming they are meanly against a woman’s choice is fine when yabbering for control of the laws but that isn’t how pro-life people see themselves, nor what motivates them. They aren’t running around simmering, god **** it, I have to stop that woman from choosing. They are thinking they have to save that baby.

                1. I’ll concede that “anti-abortion” isn’t the most accurate term for at least some of “that side of the argument”. You can tell because wide availability of effective contraception would cut the demand for abortion, and they oppose that, too. (Also, gay people have very little demand for abortion services, but the same people who oppose the first two things also tend to oppose the gay people most of all.) But calling them “anti-sex” seems to be drifting off-topic a bit, however accurate it might be. I don’t see a problem in calling people who want to criminalize abortion as “anti-abortion”.

                  The real solution appears to be to funding research into the transplantation of embryos and fetuses, so that people who want that baby to live can put their body where their mouth is. I’m fairly certain that some will absolutely do it, and some will suddenly recall an urgent appointment elsewhere.

                2. They aren’t running around simmering, god **** it, I have to stop that woman from choosing. They are thinking they have to save that baby.

                  Really? The recent Alabama abortion law defines a fertilized egg as a person, but with one exception : It doesn’t apply to in vitro fertilization clinics. Don’t worry, said Alabama State Senator Clyde Chambliss: “The egg in the lab doesn’t apply. It’s not in a woman. She’s not pregnant.” So all the grand philosophical blather about a soul invested into a fertilized egg doesn’t mean squat if there isn’t a woman attached to manage, punish or control.

          2. I think we should probably use “Pro Abortion” and “Anti Abortion”. Both have their own negative implications so it more or less balances out.

            However, the “Pro Life” and “Pro Choice” phrasings are now ingrained into our society. Let’s not reinvent the wheel here.

            1. What doesn’t pass the smell test is using one side’s preferred names for both sides.

              1. But if the preferred name for one side just isn’t accurate?

                1. Neither side’s preferred name is accurate according to the other side.

                  1. And, of course, if you aren’t on OUR side, they only other possibility is that you’re on THEIR side.

            2. The real problem is that you don’t have people who are on opposite sides of the same question… you have people who have strong feelings about DIFFERENT questions. One side is asking whether abortions should happen, and the other side is asking whether, if abortions happen, who should decide whether or not an individual abortion happens.

              Because of this difference, it’s entirely possible to be anti-abortion and pro-choice at the same time.

              1. “and the other side is asking whether, if abortions happen, who should decide whether or not an individual abortion happens.”

                Ok, that doesn’t make sense. One imagines a committee sitting down at the abortion clinic: “Ok, we’ve got an abortion scheduled for 2PM. Now, who’s going to decide whether or not it happens? Bob? Are you available?”

                The abortion happening comes AFTER the somebody deciding if it happens.

                1. “Ok, that doesn’t make sense.”

                  The fact that you don’t get it DOES NOT imply that it doesn’t make sense, Brett.

                  ” One imagines […]”

                  I’m not responsible for what you imagine, Brett.
                  If what you imagine doesn’t make sense… whose fault is that, Brett?

                  1. That’s my point: As stated, it makes no sense: “if abortions happen, who should decide whether or not…”

                    Why does it matter who decides, if it’s already been determined that we’re only considering cases where they happen?

                    Maybe you meant, “If abortions are going to be permitted at all,, who decides if any given abortion happens?”

                    1. Just as I’m not responsible for the things that happen in your imagination, I’m also not responsible for your willful failure to understand English.

          3. You can just as easily call the ‘prochoice’ side ‘antichoice’ since the baby obviously won’t have a choice anymore in this life. Not just one singular decision, it actually kind of fits even more. Or you could call them antilife, both work fairly well.

            1. ” the baby obviously won’t have a choice”

              At the point most abortions are performed, baby doesn’t even have a brain yet to form any choices.

              1. Pointless logic because most infants, young children, and even many legal adults do not have the mental capacity to make decisions for themselves.

                1. So, now that you’ve decided that worrying about the fetus’ choice in the matter is pointless, that leaves you with the one person involved whose choice is informed, right?

        2. “They weren’t opposed to choice. They felt life was more important.”

          They felt that life was important enough to deny choice.

          There’s nobody out there trying to make abortions mandatory. The Chinese used to, but they eased off. Probably because so many families were aborting would-be daughters, but keeping would-be sons, and now there aren’t enough grown-up women to provide marriage for all the sons.

      2. “But I do think it’s biased to not call the other side ‘pro abortion.'”

        Just because very close to none of them are pro-abortion is no reason not the label them that, in the interest of “fairness”.

        1. I think at the point where the baby has become viable, and you have to take extra steps during the abortion to make sure that it’s dead when it emerges, it becomes entirely fair to say “pro-abortion”.

          Especially when you’re looking at late term abortions for mental health reasons, where the mental health issue is anguish over the idea of giving live birth.

          1. “I think at the point…”

            I think at the point where you have to make up fake positions to be against, your opinion on the matter can safely be ignored.

            1. Yeah, let’s pretend that’s a fake position, and that nobody anywhere has ever insisted that mental health has to count as a health reason for an abortion, and no abortionist anywhere ever agreed with a pretextual reason for a late term abortion.

              1. Yeah, after all, you’d know what my position is WAY better than I would.

                You choose to ignore reality because real people are harder to argue with than the ones you can make up in your head. Which is fine… it’s just that when you make this choice, your opinion(s) can be ignored as not meaningful.

                You’ve made your choice.

      3. If these groups are not pro-abortion, why all the opposition to crisis pregnancy centers and faith-based adoption services?

  6. “Qualified immunity? Sixth Circuit: No.”

    Sir, may I have some more?

    1. It’s a start, but of course nothing will happen to the cop.

      1. Two denials of qi this week. How rare!

  7. With regards to the 9th circuit abortion case, did they ever discuss the accuracy of the footage? Editing doesn’t necessarily mean that the claims are inaccurate.

    Also, about that quia timet case. I don’t really understand why settling a case out of court precludes use of that doctrine. IANAL so I would think logically that one would do whatever works to get someone who owes you to pay. Why is that particular strategy invalid?

    1. I quickly skimmed the case and I don’t think the settlement is what cost Fidelity. Instead, these are the key passages:

      Here is how the court framed the question. “Fidelity is no exception. Before issuing the bonds, it required Gillen to sign a detailed indemnity agreement, which included an express indemnification provision, a 584-word collateralization provision (remarkably, all one sen-tence), and a contingent trust. Fidelity also had Gillen and its owners execute a net worth retention agreement, promising that Gillen would maintain a net worth greater than $7.5 mil-lion. Fidelity brought breach of contract claims seeking relief under these contractual provisions. Did Fidelity also have ad-ditional rights under the equitable doctrine of quia timet?”

      And here’s their answer. “After negotiating for specific collateralization and indem-nification rights, suing on that indemnity agreement, and then settling its breach of contract claims, Fidelity cannot now use this ancient equitable doctrine to get additional relief. Gillen is entitled to summary judgment. As per another Latin maxim: Aequitas non supplet ea quae in manu orantis esse possunt (“Equity does not provide for those things that may be in the hand of an applicant.”). Legal Maxims, BLACK’S LAW DICTIONARY app. b at 1901 (10th ed. 2014).”

      So it’s more that Fidelity had an adequate remedy at law, which it took advantage of, than that Fidelity settled.

  8. Man collects unemployment benefits but is actually still working. Fraud! He’s sentenced to probation but could have served a max of five years. Seventh Circuit: It does not violate the Second Amendment to prohibit him from possessing guns. His crime may not have been violent, but it was serious. And 40% of nonviolent felons are caught committing subsequent crimes (some violent)—who knows on which side of the line he’ll fall?

    Us bitter clingers to our guns were shamed into accepting the 1968 Gun Control Act definition of felons as Prohibited Persons under the GCA: what reasonable person would want dangerous violent felons going armed? The felon prohibition from buying or owning a gun or ammunition was just common sense gun control. I recall being assured that the Prohibited Person class would be restricted to those clearly adjudicated as violent and a danger to self or others with due process safeguards.

    More recently, persons drawing disability who have a fiduciary handing their financial affairs were added to the Prohibited Person NICS database without a due process adjudication that they were a danger to self or others. Just redefined as a new class of Prohibited Person.

    When the Gun Free School Zone Act was passed making it a felony to be in possession of a firearm within 1000 feet of school grounds, my home was well within a 1000 feet of the school fence. With the expansion of the athletic field, my home is now 450 feet of the school.

    1. This is one of those things where if the courts had to use real strict scrutiny, the laws would fail. “He might be violent in the future, because of statistics, so he can be prohibited from owning guns.”

      That same argument could be used to disarm blacks and Hispanics.

      1. “He might be violent in the future, because of statistics, so he can be prohibited from owning guns.” That same argument could be used to disarm blacks and Hispanics.

        That argument was used in Florida for a 1890s law requiring a permit to own pistols or Winchester rifles that was intended to deny guns to migrant blacks in Florida because fights escalating to knife or gun were common among migrant black workers in turpentine camps. It was not enforced against Florida residents (especial not against whites) because they had standing to challenge the law under the Florida constitution. Eventually somebody forgot this law was not to be enforced against someone who could challenge it in court. It was overturned by the Florida State Supreme Court in the 1940s.

        This was mentioned in CORE’s amicus brief in DC v Heller 2008.

  9. “the district court preliminarily enjoins the anti-abortion group from disseminating the films. But the anti-abortion group, its founder, and its lawyers (in a different case) keep making the videos available on YouTube.”

    Isn’t this sloppy language?

    The videos were disseminated at the time of uploading to Youtube; past tense. If the court said “do not disseminate”, future tense, that is different.

    Going to Youtube to take down the videos is a future tense action equivalent the the NYT recalling all copies of a newpaper already distributed. If that is what the court meant, is “do not disseminate” sufficiently clear to enforce?

  10. So “We do not condone this illegal behavior” right before we do, in fact, condone that illegal behavior.

    And then they double down by restricting an enumerated right based on pure speculation about future behavior. Even if you assume the best of their speculation, the nonviolent felon is less likely than not to re-offend (and even less likely to do so violently).

    Is the Seventh trying to compete with the Ninth?

  11. […] Short Circuit: A Roundup Recent Federal Court Decisions Gluten sensitivity, rectal probes, and troubling electrical towers. […]

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