Short Circuit: A Roundup of Recent Federal Court Decisions

Electromagnetic hypersensitivity, habitual drunkards, and garden-variety tyranny.

|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: We make the stirring, strident claim that the Second Circuit was pretty much on the mark in its recent opinion finding a First Amendment problem with President Trump blocking critics on Twitter. Click here for iTunes.

  • In 2018, President Trump issues three executive orders instructing the feds to, among other things, limit the time federal employees can spend working on union business on the taxpayer's dime. A bevy of federal labor unions challenge the orders, arguing, among other things, that the President has no authority to issue executive orders related to federal labor relations and that the orders violate the First Amendment. D.C. Circuit: The claims must be presented to an administrative review board before they can be heard in court.
  • Twelve-year-old at Southborough, Mass. boarding school allegedly suffers from electromagnetic hypersensitivity, meaning that the radio waves generated by common electronics cause him headaches, nausea, and other symptoms. (A school staffer's internal email: "Blahahahahahahahaha!") Does the student have any claims for the school's refusal to turn off the Wi-Fi? First Circuit: He does not. [Fun fact: The scientific consensus is that electromagnetic hypersensitivity doesn't exist. But that hasn't stopped dozens of supposed hypersensitives from moving to West Virginia to live in a federally designated radio-quiet zone.]
  • Friends, Judge Selya of the First Circuit has seen fit to give us this vocab quiz: encincture, rescript, assay, gainsay, repastinate, algid.
  • New York City bans advertising in for-hire vehicles like Ubers because passengers find them deeply, deeply annoying. Yet the city allows similar ads in taxicabs (via Taxi TV, which, depending on one's perspective, is either a "pleasant diversion" or a nightmare squawkbox). Makers of an advertising app see this as an unconstitutional restriction on commercial speech. Nonetheless, the ban will stand, says the Second Circuit.
  • Notorious "pharma bro" hedge fund manager Martin Shkreli is convicted of securities fraud for (among other things) regularly sending false performance reports to investors and using their money to pay his personal debts. Second Circuit: No need to disturb the conviction or $7.3 mil forfeiture order.
  • Allegation: Police barge into Camden, N.J. home, beat man unconscious, drag him down stairs. The man serves half of three-year sentence for drug possession, but his case is among 200 criminal cases vacated or dropped after five Camden, N.J. officers admit to planting drugs, filing false reports, lying under oath. Jury: Two officers used excessive force and committed a false arrest, but the man ultimately failed to prove that Camden's (in)action caused these violations. Third Circuit: He gets another chance to prove that claim (and others), this time with the aid of important evidence the district court wrongly excluded.
  • The Affordable Care Act mandates that employers, apart from some religious ones, pay for contraception for female employees with reproductive capacity. In 2017, the Trump administration expanded the exemption to include a wider array of religious employers as well as nonreligious employers with moral objections to the mandate. Third Circuit: The district court did not err in imposing a nationwide preliminary injunction. Among other infirmities, the feds likely violated the Administrative Procedure Act by failing to provide the public notice and a chance to comment on the new exemptions.
  • Pennsylvania prohibits billboards within 500 feet of a highway interchange: Third Circuit: And while that's legal in some respects, an exception for certain kinds of billboards means the state has to produce evidence justifying the general prohibition. Also, PennDOT needs to issue or deny permits for other highway billboards within a reasonable time limit.
  • Virginia law lets circuit courts declare someone a "habitual drunkard," which makes it a crime for that someone to possess alcohol or be drunk in public. Several homeless alcoholics, each prosecuted multiple times after being so declared, sue. Fourth Circuit (en banc, over a dissent): The case should not have been dismissed. The law doesn't specify what makes someone a "habitual drunkard," so judges can make up their own subjective standards. And if a "habitual drunkard" is just anyone who suffers from alcoholism, that potentially violates the Eighth Amendment since the law has the effect of punishing people for drinking they cannot control.
  • Campaign consultant is criminally prosecuted, convicted of violating Maryland election laws. He obtains a new trial, and a jury acquits. He then seeks to mail a letter criticizing the prosecutor (a political appointee) to Maryland voters. But he's forbidden access to Maryland's list of voters because he is a resident of Virginia. Fourth Circuit: Which might violate the First Amendment.
  • Baltimore man assaults his wife, self-surrenders to police officer that he knows. But the man's arrest warrant goes missing under suspicious circumstances, and he is permitted to leave the station. He corresponds with the officer about self-surrendering the following week and in the meantime murders his wife (outside courthouse where she had just gotten a protective order). Fourth Circuit (2013): No qualified immunity for the officer. Fourth Circuit (2019, over a dissent): Discovery didn't turn up evidence that the officer conspired with the man. Qualified immunity.
  • A bevy of Chinese investors put $500k each into a startup electric car company, which later collapses. The investors sue, among others, the company's former chairman (Terry McAuliffe, who went on to become governor of Virginia), asserting that misstatements he made to the media about the company's achievements defrauded the investors into putting up the cash. Fourth Circuit: "We decline to whitewash the alleged misstatements here." But the investors failed to adequately plead they justifiably relied on the misstatements—not least because the misstatements were in English and many of the investors don't understand English.
  • Fifth Circuit (2015): No qualified immunity for Lafayette, La. officer who set dog on (allegedly) compliant suspect and shot the suspect at point-blank range, killing him. Jury: The officer used unconstitutionally excessive force but is entitled to qualified immunity. Fifth Circuit (2019): No reason to disturb the jury's verdict.
  • This Sixth Circuit decision, on whether a homeowner can sue a lender, turns on the not-insignificant distinction between a loan and a mortgage. (Loan = The money a lender gives a home buyer so they can afford a house. Mortgage = The legal interest the lender acquires in the house that provides assurance, on pain of foreclosure, that the loan will be repaid.)
  • Man camping in the Chequamegon-Nicolet National Forest has a gun, which is illegal on account of his multiple felony convictions. Later, the man readily admits to being a white supremacist and proclaims his desire to return to Germany to retrace his Nazi ancestral heritage. Seventh Circuit: And it's just fine for the judge to have considered those beliefs and imposed a longer sentence than the gov't requested. Even though he's never been convicted of a hate crime, such views demonstrate a threat of future dangerousness.
  • Allegation: Illinois prison required female inmates to stand naked, remove sanitary products, and undergo body and cavity searches—all in groups and in full view of male officers not conducting the searches. Seventh Circuit: This is a visual inspection of a prisoner, not a physical intrusion, so the Fourth Amendment doesn't apply. Dissent: Forcing a prisoner to manipulate her own body (as opposed to the guards doing it themselves) doesn't make a search reasonable.
  • St. Peters, Mo. officials threaten homeowners with up to $180k in fines and 20 years in prison if they do not tear out garden (photos here) and replace it with grass on at least 50% of the yard. (Later, officials say just 5% grass will suffice.) An excessive fine? A violation of the substantive due process right to quiet enjoyment of one's property? The Eighth Circuit dismisses the case on procedural grounds.
  • Allegation: Fort Madison, Iowa police enter home of tire-slashing suspect, order him to drop knife. The suspect instead withdraws to a closet. An officer opens the closet door and shoots, kills the suspect (who had not lunged toward or otherwise threatened the officer). Eighth Circuit: Qualified immunity. "It was not clearly established in August 2014 that an officer was forbidden to discharge his firearm when suddenly confronted in close quarters by a noncompliant suspect armed with a knife."
  • The DOJ has a pot of money for local police departments who undertake various initiatives. Los Angeles officials: We didn't get the $3.125 mil grant we sought because the DOJ favors jurisdictions that assist with the feds' immigration enforcement efforts, which we decline to do. Ninth Circuit (over a dissent): The DOJ has broad discretion to decide how to allocate funds, and the grant program merely incentivizes, rather than coerces, jurisdictions to provide said assistance. And anyway, lots of jurisdictions that do not provide it were given grants, and lots of jurisdictions that do were not.
  • Utah chiropractor is prosecuted for trying to pay $340k in back taxes with checks from closed bank accounts. Usually, courts bring down the hammer when such a defendant—a sovereign citizen—tries to discharge the trial judge "from his emergency war powers jurisdictional duties." Or says that trial must be rescheduled because the defendant is unavailable. Or signs filings with a thumbprint. But not today! The Tenth Circuit holds that the defendant—or, in his view, "the fiction that the court has named as a defendant"—wasn't sufficiently warned before he waived his right to counsel. Conviction vacated.
  • San Juan County, Utah officials draw up three voting districts such that white residents predominate in two districts and Navajo residents (who make up 52% of the population) mostly all live in one district, all but guaranteeing two whites and one Navajo are elected to the three-member commission that governs the county. Tenth Circuit: Which violates the Equal Protection Clause and the Voting Rights Act.
  • And in en banc news, the Fifth Circuit will not reconsider its holding that landlords do not violate the Fair Housing Act when they decline to accept "Section 8 vouchers," which are used disproportionately by minorities, in neighborhoods that are disproportionately white. Seven judges dissent: Plaintiffs plausibly alleged the defendants are perpetuating segregation.

It's illegal in Florida to give individualized dietary advice without a license that takes years and costs thousands of dollars to obtain. So when Heather Del Castillo, a military spouse who ran a successful health coaching business in California, relocated to Florida, regulators (tipped off by a local dietitian) ordered her to shut down or face a year in jail—per client. But the First Amendment protects the right to give advice on diet and nutrition, and the U.S. Supreme Court recently ruled that there is no exception for so-called "professional speech." This week, a federal judge nonetheless relied on now-overruled precedent to uphold Florida's law—and ignored evidence that there is no good public safety justification for it. On to the Eleventh Circuit! Click here to read more.

NEXT: Bernie Sanders Gets a Lesson in What a $15 Minimum Wage Would Mean

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  1. It’s illegal in Florida to give individualized dietary advice without a license that takes years and costs thousands of dollars to obtain.

    So if we are in Florida, and if my wife says, “Honey, maybe you should skip that third piece of pie,” can I respond, “Sorry, that’s unlicensed illegal advice!”

    1. The licensing requirement only applies to paid advice.

      1. He’s paying for it, believe me!

      2. But that’s not included in the statement made by the Institute for Justice. When I read their statement I’m left with the same impression as Bored Lawyer; no telling anyone anything dietary related.

        Does the Institute for Justice not know the law of Florida? Surely it’s not engaging in a sort of puffery as a way of attracting support for it’s cause. That wouldn’t be very just.

        1. They mentioned there is no exception for “so-called professional speech”, which suggests money. Not sure what the problem is.

          1. The summary strongly implies that any dietary advice requires a license – hence the original comment.

            I think this regulation is bad policy, I think the constitutional argument has some force, and I think IJ generally does good work. But their write ups do tend to be tendentious at best, and are often actively misleading.

  2. “Allegation: Illinois prison required female inmates to stand naked, remove sanitary products, and undergo body and cavity searches—all in groups and in full view of male officers not conducting the searches. Seventh Circuit: This is a visual inspection of a prisoner, not a physical intrusion, so the Fourth Amendment doesn’t apply.”

    Say WHAT?

    1. As is obvious from these roundups, a judge’s job is to explain why what the cops did was legal. Do you have a better reason?

      1. Well, learning that cavity searches aren’t legally “searches” IS a revelation.

        1. The problem lies in the fact that these are prisoners and their Constitutional Rights are restricted as a result of their incarceration. I would also note that it is well documented that people will attempt to smuggle items into prison hence the requirement for searches as a part of the in-processing of prisoners. All orifices are checked on both male and female prisoners as well as the clothing worn and other items brought with them.

  3. Jury: The officer used unconstitutionally excessive force but is entitled to qualified immunity.

    This is a thing? At trial?

    1. Well, this is where it should be, but agents of the state shouldn’t get the two bites at the apple, either it should be up to the judge (bad, but what we have) or up to the jury (so they can say “hey, this was an edge case that we don’t think was obvious at all, but now we’re making it clear it’s on the other side of the line).

      Of course, the right way, if you think qualified immunity should exist at all, is through respondeat superior. State agent clearly violates the law, agent is liable. State agent violates unclear law, State is liable. That puts the Incentive on the State to ensure that the law is clear. What we have now just gives both the state and the agent incentive to ensure they can do anything at any time, regardless of the law.

    2. If the applicability of qualified immunity depends on a disputed fact, how else would it be assessed?

  4. Trump expands the exemptions allowed for religious reasons to match the holdings in hobby lobby and per curium SC rulings, but 1 obama and 2 clinton appointees say you cant do that.

    1. Right, when KKKlinton or Obummer judges hear cases, every Trump action is “arbitrary and capricious.”

    2. Obama is a disgusting savage, much like the “squad” of traitorous women serving in the Democrat party.

  5. The kid’s probably suffering from anxiety attacks, caused in part and exacerbated by his wacko parents. They refused to allow him to be interviewed separately by the medical professionals and reported his symptoms themselves, without his input. He’s getting hit with more power from microwaves from amateur radio operators in his area than from routers in the school. He should be hardest hit at night, when the amateur radios are being used. The power from the goddamn sun is comparable, though I doubt they let him outside much.

    What I’m saying is: “Blahahahahahahahaha!” is the correct response.

    For some reason women have been more prone to claim EHS exists. It comes as no surprise that “Mother” seems far more involved in this charade than “Father”.

  6. “The Affordable Care Act mandates that employers, apart from some religious ones, pay for contraception for female employees with reproductive capacity.”

    I seem to recall that it actually doesn’t. By which I mean no such language can be found in the law, the contraceptive mandate is a regulation promulgated under the authority of the ACA, but not actually required by it.

    1. You recall correctly but forget the legal arguments of ‘but Trump.’

    2. You mean, it’s a regulation authorized by ACA, and implemented in accordance with prescribed procedures, none of which were followed by the Trump administration in changing it.

      Yeah, you really love the rule of law, Brett, except when it interferes with something your god, Trump, wants to do.

      Besides, howdy you define a “moral objection” so it’s not just a universal available excuse for people not to comply with the law? You can’t. Next thing you know Trump will allow a “moral objection” to blacks to let restaurants violate the CRA.

      1. Authorized in the sense that it DID permit them to declare a minimum level of coverage, and they decided to make free contraceptives for women part of that minimum level.

        They could, just as easily, have declared free viagra and boob jobs to be part of the minimum level of coverage, and if they had, THAT would have been “mandated by the ACA” in exactly the same sense:

        Not at all.

        Because if it had been mandated by the ACA, they wouldn’t have had any discretion in the matter.

        1. Well, since neither viagra nor boob jobs can reasonably be considered “preventive care” I don’t think that’s true.

          Further, you are ignoring the fact that there are rules for promulgating or changing regulations, rules the Trump administration routinely violates.

          But you don’t give a crap about that. You just kiss the ring, among other things.

          1. Bernard, nothing the regulators have discretion over whether or not to do is “mandated” by the law they’re regulating in the name of.

            And you’d even be wrong about the viagra.

            It’s also used to prevent or reverse peripheral neuropathy under some circumstances.

            It’s a pretty rare drug that only has one use…

            1. Sildenafil, the actual name of the drug in Viagra, was originally developed as a medicine to treat the symptoms of heart disease and prevent heart attacks. It is still prescribed as a heart disease medicine in some cases where other drugs are not usable.

              1. Is sildenafil prescribed, or Viagra?

        2. “Because if it had been mandated by the ACA, they wouldn’t have had any discretion in the matter.”

          You’re overstating. For one thing, prosecutors have discretion over bringing charges for violation of ANY criminal law.

    3. (Insert cynical statement about the difference between passing a law and passing a general idea and handing it off to functionaries to dictate into existence.)

  7. “Allegation: Fort Madison, Iowa police enter home of tire-slashing suspect, order him to drop knife. The suspect instead withdraws to a closet. An officer opens the closet door and shoots, kills the suspect (who had not lunged toward or otherwise threatened the officer). Eighth Circuit: Qualified immunity. “It was not clearly established in August 2014 that an officer was forbidden to discharge his firearm when suddenly confronted in close quarters by a noncompliant suspect armed with a knife.””

    WTF?

    1. It’s well established that police can create an exigency for the purpose of avoiding a warrant (because now there are existent circumstances).

      This is just an extension of that. Just because the officer knew the person was on the immediate other side of the door and holding a knife doesn’t mean that they weren’t “suddenly” presented with the person when they opened the door. For all they knew there was a set of stairs leading down to the underground lair of the master tire-slasher, where he laid in wait for the insufficiently trigger happy officer.

      The fix, of course, is to get rid of exigency as an excuse for anything.

      1. I think a simpler remedy would be to limit exigency defenses to cases where the facts warrant it.

  8. The podcast discussed the Trump Twitter ruling and made an analogy to a government agent renting a private hall to conduct a public meeting, in that even though it is a private space the government is making use of it as a public space and so therefor cannot restrict the public’s access.

    My issue is that while the courts can restrict the government agent from blocking access from the now public space, they cannot restrict the private owner of the space from blocking access independently. An individual banned by Twitter cannot access the “public space” of Trump’s twitter threads, just as much if not more so, than a user who is blocked by the Trump account.

    So could someone banned from Twitter sue an official to prevent them from using Twitter as a public space at all, since they cannot guarantee unrestricted and equal access by the public?

    1. No.

      Renting a hall is a bad analogy. Renting time on a cable TV channel is a better one. The government can’t tell Comcast “don’t let gingers see this statement about their lack of souls” while Comcast could on their own decide not to do business with all gingers for just that reason.

      The key is who is choosing the restrictions. The government cannot be the source of a restriction under the 1st amendment, but a private actor can – and in fact the private actors choice not to associate is itself protected under the same amendment (ignoring modern jurisprudence about public accommodations, which it isn’t clear Twitter is – see next para).

      But you say, “isn’t Twitter the new town square?” There’s some truth here, but the analogy only works on some levels, the chief of which is that we (the public fisc) aren’t paying to maintain it. The point where it looks like a public accommodation is when you don’t sign in, where you can see everything marked as public. Where it looks like a private club is when you sign in, gaining you access to things that are meant to be private, excluding things you chose not to see (your block list), and preventing you from seeing things others chose not to share with you (their block list).

  9. “they cannot guarantee unrestricted and equal access by the public?”

    Please describe the venue (of any type) that CAN guarantee unrestricted and equal access by the public.

  10. In the ACA case, the 3rd Circuit held that the the exemption rules were both unauthorized by the ACA and not required by the RFRA. In short, it decided the case on the ultimate merits, not based on procedural infirmities like failing to conform to APA notice and comment requirements. I think the description is a bit misleading in this respect.

    1. I would use the lack of APA conformity as a basis for striking it down. An administration can’t simply promulgate a policy that binds the public without following the procedural norms of notice and comment that Congress ordained. I would stop there.

      I am not sure I would be so quick to strike down a properly promulgated policy. Reasonable exceptions and balancing between norms is one of the areas where decisions are essentially political, and Chevron deference may be most appropriate.

      That is, the value of accommodating religion is a legitimate value whether or not the RFRA strictly requires it. Regulations implementing the ACA and many other major statutes contain accommodations of many other values (civil rights, environmental, etc.) without courts closely scrutinizing them for strict-and-no-further compliance with statutes.

  11. The Camden police case is an important one. It reflects a general tendency of appellate courts to look more closely at cases alleging police brutality and more sympathetically at their plaintiffs. In this case, the fact that the police officers had been convicted of framing the plaintiff and they still lost their lawsuit in the district court is an indication of how formidable the barriers to winning a federal civil rights suit can be.

    At the same time, the lawsuit also outlines some difficulties. One example is the fact that when a new police Chief came into office, he issued a report saying things were really bad and badly in need of fixing. That report is now being used as evidence against the municipality. What would have happened if the new police chief had instead been more adept at cover-up? Perhaps summary judgment would have been upheld.

    A fundamental paradox of our system of liability is that people who attempt to talk bout problems honestly are magnets for liability, while cover-up artists are often highly successful. The fact that our system of justice has the effect of rewarding cover-up and punishing transparency and attempts at reform is one of the ways that it can produce unexpected, pathological results.

  12. […] Short Circuit: A Roundup of Recent Federal Court Decisions Electromagnetic hypersensitivity, habitual drunkards, and garden-variety tyranny. […]

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