Short Circuit: A Roundup of Recent Federal Court Decisions

Full-body banana costumes, in-state grapes, and apple pie.

|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: Special guests Scott Michelman of ACLU-DC and Adrian Snead of Whiteford Taylor Preston tell us what's what. There's a pending petition for cert over a police dog bite, a pending petition for en banc review that seeks to hold prison officials responsible for a guard who sexually assaulted inmates, and a case where police shot an innocent bystander (that the panelists agree is due for further review). Click here for iTunes.

  • Allegation: Hamas terrorists post messages on Facebook encouraging violence in Israel; Facebook's algorithms display those messages to people receptive to them who then injured and killed Americans in Israel. Second Circuit: Can't sue Facebook over that. Congress immunized internet publishers from these kinds of claims. Dissent: Using algorithms to match people with messages means Facebook is more than a publisher.
  • White-collar defendant requests pre-trial release, offering to pay for private armed security guards to ensure he doesn't skip town. District court: No. Second Circuit: Affirmed—not least because the sort of "self-funded private jail[]" the defendant requested would benefit the wealthy alone.
  • In which the Third Circuit examines the "non-utilitarian, sculptural features" of a full-body banana costume. (See Appendix A for photographs of said costume.)
  • Allegation: Following up on vague tip, police interrogate two teen brothers, each with severe mental disabilities, suspected of the rape and murder of 11-year-old Red Springs, N.C. girl. After hours of continuous questioning punctuated by threats, racial epithets, and empty promises, the brothers sign contradictory confessions written by the officers. They spend 31 years in prison until DNA evidence exonerates them and proves another man was the culprit. Can they sue the officers for coercing their confessions, suppressing evidence that pointed to the other man during the initial investigation? The Fourth Circuit says yes.
  • Unemployed sexagenarian—now suffering from degenerative ailment—seeks to discharge student-loan debt she incurred while enrolled in community college in 2012. Fifth Circuit: Gotta talk to Congress about that. They write the bankruptcy laws. And they say discharge is not available under the demanding "undue hardship" standard that applies to student loans.
  • In 1896, the Supreme Court ordered new trials for two men convicted of seeking to aid Cuban revolutionaries seeking to secure independence from Spain. In so doing, the Court invented the doctrine of plain error review, an exception to usual rule that appellate courts mustn't consider arguments that weren't raised below. So writes Judge Oldham of the Fifth Circuit, tracing the doctrine's waxings and wanings and concluding the Supreme Court has allowed it to overwax of late.
  • Allegation: Parma, Ohio man satirizes local police department with fake Facebook page. (Minorities need not apply, pedophiles to receive police honors, etc.) The displeased police respond by arresting the satirist. Sixth Circuit: Ridiculing the government is as American as apple pie. Most of the satirist's claims survive a motion to dismiss. [There's more at Popehat.]
  • Drunk U.S. Marshal in Chicago takes phone call at the movies, threatens other patrons when they heckle him. Moviegoers then complain to the Marshal Service—and it turns out the guy isn't a marshal at all. The last time he (allegedly) did this—when he used emergency lights to run a red light, then lied to the cops who pulled him over—the Marshals told him to quit it. So this time he's promptly convicted of impersonating a federal officer. Seventh Circuit: No First Amendment problem there. You can't falsely shout marshal in a crowded theater. [There's more at Popehat.]
  • Man spends 10 years in prison for cocaine possession based on the testimony of a dirty Chicago cop. Now freed, he sues the (now incarcerated) cop, who pleads the Fifth while claiming that he would "love to" testify if his own case were not on appeal. Seventh Circuit: The jury should have been told that you can only invoke the Fifth to avoid incriminating yourself. New trial.
  • Allegation: Three Rockford, Ill. detectives use physical force, threat of prison time to obtain false statements from witnesses that helped put three innocent men in prison for more than 10 years. Seventh Circuit: Which is not fabricating evidence unless the detectives knew the statement was false. One detective has admitted as much (and also admitted to handcuffing a mother and leaving her baby crying on the floor in attempt to get a statement), so the fabricating evidence claim against him can proceed. The other detectives are off the hook. (Though different claims against them can proceed.)
  • Allegation: Inmate in Chester, Ill. penitentiary attempts suicide three times in solitary. A nurse mocks him for failing and urges him to try again. Cruel and unusual punishment by the nurse? District court: No. Seventh Circuit: That claim should have gone to trial. And it could be that he gets a new trial (on separate claims that were allowed to proceed to trial) if the gov't didn't have a good enough reason to strike three of the four potential black jurors.
  • Craighead County, Ark. officials use private company to run probation for people convicted of misdemeanors. The company charges probationers monthly fees, other fees on pain of arrest, which results in more fees. (On one day in 2016, of 34 defendants brought to court, only six were charged with crimes. The remaining 28 were in jail for failing to pay the company.) Voters elect new judges who promise to cease using the company, erase outstanding debts. Company: Which violates the Contracts Clause, Takings Clause. Eighth Circuit: Can't sue the judges over that. The judges are entitled to modify probation conditions and discharge debts.
  • In Minnesota, if wineries want to offer tastings at their farms and sell directly to consumers, at least 51 percent of the grapes they use must be grown in state. An unconstitutional boon to Minnesota's grape industry at the expense of out-of-state growers? The wineries certainly have standing to find out, says the Eighth Circuit. The case should not have been dismissed. (This is an IJ case. Click here to learn more.)
  • Allegation: Teased incessantly by another student, 7-year old yells at the other student, declines to calm down as instructed. By the time a Kansas City, Mo. school resource officer arrives, the student has stopped yelling. But the officer drags him crying to the principal's office in handcuffs and leaves them on until the student's father arrives 20 minutes later. District court: Could be an unreasonable seizure or excessive force. Eighth Circuit: Reversed. The kid tried to pull away from the officer, and, if he wasn't handcuffed, he might have attempted to leave and posed a harm to himself.
  • Missouri law permits random roadside inspections of commercial vehicles without any probable cause. Rancher: Which violates the Fourth Amendment as applied to my dump truck, which I only use for ranch operations and am legally barred from using to transport people or goods for hire. Eighth Circuit: Not so. Warrantless inspections are okay in highly regulated industries, which commercial trucking is.
  • Allegation: St. Louis prosecutor dismisses all charges against man, but he remains in jail for eight days. Can he sue the prosecutor? The Eighth Circuit says no. While there is a right not to be imprisoned without charges, the prosecutor has no clearly established duty to ensure that anyone is released from jail. (The man's claims against other officials are still pending.)
  • North Dakota is the only state that does not require voters to register. You just show up with ID and vote. Plaintiffs: A 2017 change to the law disenfranchises roughly 10% of the state's eligible Native American voters, many of whom lack residential street addresses and thus can't get the requisite ID. Eighth Circuit: The law is not a substantial burden to the vast majority of eligible voters, and it's not clear how many would-be voters tried to obtain ID and were unable to. Dissent: The law was purportedly enacted to address voter fraud, but there is no evidence of voter fraud.
  • Guam officials seek to hold referendum allowing voters to express their opinion about the future of the relationship between Guam and the United States but will only permit "Native Inhabitants of Guam" to vote. Ninth Circuit: Which means restricting voting based upon race, which is explicitly prohibited by the Fifteenth Amendment.
  • Mexican national enters the U.S. 20 miles east of a port of entry. It's a federal crime for aliens to enter the U.S. at any point other than that designated by immigration officers. And it's a separate federal crime to elude examination by immigration officers. He's charged with the latter. Ninth Circuit: Nope, you can only elude examination at a place where examinations occur—ports of entry. Concurrence: But I sympathize with the gov't, because we've basically made it impossible to enforce the other law about border crossing.
  • In the Tenth Circuit, we encounter the following allegation: "shepherds tend herds of 1,000 sheep or more, . . . protecting them from the constant threat of natural predators like coyotes, mountain lions, and wolves . . . . During lambing . . . season, the shepherds assist the animals in the birthing process, and at all times, the shepherds provide for the health and medical needs of the herd." Will this somehow result in a civil RICO claim surviving a motion to dismiss? Ewe bet it will. [There's more at Popehat.]
  • Jury convicts investor of wire fraud for participating in scheme wherein attractive women lured men to Miami Beach night clubs to buy wildly overpriced drinks. Eleventh Circuit (2016): Conviction overturned. The jury should have been instructed that the failure to disclose the financial arrangement between the women and the night clubs isn't by itself wire fraud. Eleventh Circuit (2019): It's not double jeopardy to retry the investor for concealment-based money laundering, a charge the first jury did not reach a verdict on. His new conviction stands.
  • And in panel rehearing news, the Ninth Circuit has withdrawn its decision in a lawsuit with broad ramifications for businesses that classify workers as independent contractors rather than employees. The California Supreme Court will have a chance to weigh in.

For a few months this past winter and spring, Jessica Barron and Kenny Wylie let their son's 19-year-old friend crash at their Granite City, Ill. home because he didn't have anywhere else to go and it was cold. But the friend lied to them and tried to steal from them, and they ultimately kicked him out after he burglarized a restaurant. That should have been the end of the matter, but now city officials are trying to evict Jessica, Kenny, and their three teenage children using an ordinance that requires landlords to evict tenants if any member of the household commits a crime. Though their houseguest is long gone and their landlord views them as model tenants, the city wants to render the family homeless. This week, they joined with IJ to challenge the constitutionality of the ordinance. Click here to read more.

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NEXT: The City Wants to Evict This Family Because a House Guest Committed a Crime They Didn't Know About Somewhere Else

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  1. “White-collar defendant requests pre-trial release, offering to pay for private armed security guards to ensure he doesn’t skip town. District court: No. Second Circuit: Affirmed—not least because the sort of “self-funded private jail[]” the defendant requested would benefit the wealthy alone.”

    Let’s just say that whatever chance this appeal had under normal circumstances, after the embarrassment to the judicial system that was the Epstein plea deal, this argument was not likely to win.

    1. Yup. Which is a shame because their reasoning of it benefiting the wealthy alone is not a constitutional argument. Pretrial detention is only supposed to be done if the person is a danger to the community or a flight risk, as a constitutional matter. And in the latter bail is set at an amount that would eliminate the risk by making it too expensive to abscond. His proposed solution would eliminate the only two reasons the pretrial detention is constitutionally allowed. You don’t lose you constitutional rights because you are wealthy.

      1. Enjoy life on the inconsequential fringe of American society.

      2. If that was the court’s reasoning they got it egregiously wrong.
        Had they instead addressed a presumption that private security was almost certainly bribe-able to allow him to flee (the only questions are price and plausible cover story) they could have at least had a case. It appears this case did not argue the question of if the flight risk determination was reasonable so we as readers must reluctantly accept that determination, for purposes of this case, was reasonable.
        mse326 is right, there is nothing in the Constitution that takes away Constitutional Rights just because a person is rich.

        1. History would suggest that public security is no less bribe-able. I’m not seeing that as a very strong argument.

  2. Being a native of Guam is a race?

    1. I presume that they are referring specifically to the indigenous people of Guam, not just anyone who was born on Guam.

      1. Still a bit granular to be a “race”, but I guess I could see the reasoning if they meant some distinguishable ethnic group, rather than just place of birth. They’ve tried to pull that sort of stunt in Hawaii, too.

        1. It’s basically the same type of stunt, where they define “Native” as a person who was born of parents who were here in 1850, or another long ago date

          1. They are all Americans. Leaving the US is a constitutional level change and should be (at a minimum) a supermajority. Even then dragging unwilling US citizens with them is sketchy.

    2. Technically that would be an ethnic classifications of the Hawaii Native/Pacific Islander racial category IAW US gov’t. Just as Hispanic/Latino, Arab, Jew, etc. are ethnic classifications of the White racial category.

  3. “Allegation: Following up on vague tip, police interrogate two teen brothers, each with severe mental disabilities, suspected of the rape and murder of 11-year-old Red Springs, N.C. girl. After hours of continuous questioning punctuated by threats, racial epithets, and empty promises, the brothers sign contradictory confessions written by the officers. They spend 31 years in prison until DNA evidence exonerates them and proves another man was the culprit. Can they sue the officers for coercing their confessions, suppressing evidence that pointed to the other man during the initial investigation? The Fourth Circuit says yes.”

    And this one breaks my heart. Where do you go to get your life back?

    1. “Where do you go to get your life back?”

      Department of Unicorns on the corner of 3rd and nowhere.

    2. At the very least, you should get enough compensation to enjoy your remaining life.

      1. When you think about this, one of the worst aspects of cases like this is that the government fights them. I understand the impulse to protect the taxpayers, but there’s something to be said for saying “this was clearly a massive government screwup, we need to pay the plaintiffs what we owe them” rather than searching for some technical immunity defense for not doing the right thing.

        1. Progressives will never admit they were wrong.

          1. In my experience, the prosecutors who most ardently resist exoneration and strive to deny scientific testing are Republicans. Other than that, great comment, you half-educated bigot.

            1. Kamilla Harris.

                1. In my experience the prosecutors most likely to behave this way come from large cities. Large cities that last had Republican governments before I was born.

        2. The idea that they were trying to protect the taxpayers is farcical. It’s more like just not wanting to admit that their system and their friends and colleagues could’ve done wrong.

    3. What is suing the officers going to get them?

      Why not sue the city, which might be able to cough up significant cash?

      1. “What is suing the officers going to get them?”

        Holding the officers accountable?

        “Why not sue the city,”

        Why not both?

        1. “Why not both?”

          Makes you look greedy rather than aggrieved.

      2. Because to sue the city for something like this you generally have to prove that the officers were either (1) high level personnel or (2) acting in accordance with the city’s established policies and practices. Patrol officers and detectives do not satisfy the first condition, there’s almost certainly not a written policy instructing the police to coerce false confessions, and establishing that the city nonetheless has a pattern and practice of doing so is extremely difficult.

        1. But the employees almost never have the deep pockets the lawsuit is after — the government does. How does whether the employee can be sued individually affect that?

          1. Sadly, the government is subject to the same rules as the rest of us, as mse326 explains below. It’s not that the employees can be sued, it’s that the government employer effectively cannot (except in certain limited situations). Some animals are more equal than others.

        2. I don’t understand.

          My impression is that if a truck driver, say, causes an accident while driving as part of his job, his employer is liable.

          Is that not so? If it is, then what distinguishes the city here?

          1. Yes, vicarious liability exists in private employment (in your example it is respondeat superior). No it doesn’t in government because of immunities. See Monell v Department of Social Services

          2. The trucking company doesn’t run the legal system?

    4. “Can they sue the officers for coercing their confessions, suppressing evidence that pointed to the other man during the initial investigation?”

      I’m always curious whether the officers knew they were railroading the wrong person, and just didn’t care that the kind of monster who could rape and murder an 11 year old girl is still running free, or whether they just get so convinced that they have the right person that the become blinded to the alternatives. I’m sure it’s different in different cases, but I just don’t know how you could live with yourself in the first scenario.

      1. Of course, sometimes it’s NOT the cops, it’s the prosecutor. They get pressure to put someone away for the crime, and given enough pressure, they stop worrying about whether or not they’re putting the right someone(s) away or not.

        So they tell the cops “get a confession”, and the cops do.

      2. I used to date a cop, and from the stories she would tell me, one of two situations is almost always the case.
        1. The cops absolutely believe the guy’s the perp, so they will do anything they can to get a confession.
        2. The cops are not particularly sure that the guy they have did this crime, BUT, they are sure that this is a bad person who has gotten away with a lot of shit in the past. So, they are willing to pin this on him, in order to get this bad guy off the street.

        Situation 3, where they just frame a totally innocent guy, seems more the stuff of movies and TV shows . . . although I don’t doubt that has happened/is happening more than zero times. Since I’ve never been a cop, the above is obviously second-hand or third-hand.

        1. “2. The cops are not particularly sure that the guy they have did this crime, BUT, they are sure that this is a bad person who has gotten away with a lot of shit in the past. So, they are willing to pin this on him, in order to get this bad guy off the street.”

          But this leaves another bad person (the actually guilty one) on the street. Unless you are certain you can’t catch the real bad guy, I don’t see how it’s any kind of acceptable trade off.

          Also, I really don’t see a difference between Situations 2 & 3. A frame up is a frame up, regardless of how bad a dude they think he is. And I’m really skeptical about the trustworthiness of their evaluations.

          1. And all three are the stuff of many a movie and TV show.

          2. But this leaves another bad person (the actually guilty one) on the street. Unless you are certain you can’t catch the real bad guy, I don’t see how it’s any kind of acceptable trade off.

            The math is the same: either way, you get one bad person off the streets. (I am explaining, not justifying.)

            The main difference between real life and Hollywood is that in Hollywood the police investigate. If there are several possible suspects they actually try to figure out which ones may or may not have done it. In real life, they decide one is more likely guilty and then seek to prove it. Evidence that doesn’t fit the theory is ignored, not pursued, or explained away. If the one they’ve decided is guilty has an alibi, they don’t move on to someone else; they work to disprove the alibi. If they can get the one they know is guilty to confess, any evidence pointing to someone else doesn’t matter.

  4. “Craighead County, Ark. officials use private company to run probation for people convicted of misdemeanors. The company charges probationers monthly fees, other fees on pain of arrest, which results in more fees.”

    A California Court of Appeal recently held that due process is violated when fines and fees are imposed on an indigent defendants unless the court first makes a determination of the defendant’s ability to pay. The problem, according to the court, seems to be precisely what is described in the Arkansas case: fines pile up, which lead to more fines, which lead to jail time. It fines are (arguably) extra punishment that affects only the indigent. The California case is People v. Dueñas (2019) 30 Cal.App.5th 1157.

    1. That should say “the fines,” not “it fines.” Argh…

  5. “The law was purportedly enacted to address voter fraud, but there is no evidence of voter fraud.”

    So what? It should be enough that there is potential voter fraud.

    1. Sort’a like, “Let’s confiscate “Assault Weapons” from law abiding citizens, although there’s no evidence that law-abiding citizens use them to violate the law.

      1. Nobody here is confiscating votes. Closer to requiring purchases to go through licensed dealers for 99% of guns sold.

      2. “Sort’a like, “Let’s confiscate “Assault Weapons” from law abiding citizens, although there’s no evidence that law-abiding citizens use them to violate the law.”

        No, more like requiring background checks for buyers of guns in order to show that they are law abiding citizens.

        1. But…that dissuades the constitutional right to vote. I mean it doesn’t dissuade the constitutional right to keep and bear arms.

          1. Just require a firearm license to vote – – – – –

    2. So what? It should be enough that there is potential voter fraud.

      Not if there was no evidence of fraud before the law went into effect, which there wasn’t. The state didn’t even present evidence that fraud was a problem. (I guess the usual gang of vote fraud scammers was busy elsewhere).

      The transparent purpose was to disenfranchise a specific set of voters in violation of EPC. The court’s analysis is idiotic. The requirement doesn’t unduly burden the “vast majority” of ND voters? So what? It does interfere with the voting rights of thousands of Native American citizens of ND, as even the majority opinion admitted, without any legitimate public purpose.

      1. When there is no mechanism in place to register or detect voter fraud, then the fact that you have no evidence of voter fraud is not evidence of anything. They were putting in the barest of measures that would be necessary in order to detect if fraud exists.

        The people who cannot get the proper ID is a sign of incompetence, not evil.

        1. The thing is, there’s a whole bunch of reasons you might not be able to present valid ID, which have nothing to do with being incompetent (or ineligible to vote, remember, that’s what we’re allegedly trying to cut down on.)

          1. Actually, no, there aren’t. Not one.

            1. ID’s cost money.

            2. When the Feds determine it is OK to require a government issued I.D. to enter a Federal Courthouse, I do not accept the Federal Judges in that same courthouse pronouncing excathedra that providing a Government issued I.D. to vote is an undue burden.
              While there is a Constitutional right to vote, subject to age, citizenship, and court removal issues, there is not a Constitutional right to a particular degree or ease of security in the Federal Court buildings accessible to the general public. When the government can require private companies require of potential customers that they show government issued I.D. to buy tobacco products, alcohol, open bank accounts and make bank transactions, rent a property, and even of themselves to obtain welfare benefits or board an airplane…..
              ….. requiring a State issued I.D. to vote is not excessive.
              Allowing other things to count as I.D. to vote is about decriminalizing vote fraud as it is pretty obvious when the same D.A. that puts a kid in jail for one fake I.D. used to buy beer or smokes allows 22 fraudulent votes in Wisconsin to have a lesser sentence (if State I.D. had been required to cast votes that would have meant that there would have been 22 fake I.D.s instead of just garbage picked mail to use as I.D.)

              1. “requiring a State issued I.D. to vote is not excessive.”

                So long as the state issues the ID at no cost to the voter. Requiring a payment to cast a vote is unconstitutional.

            3. “Actually, no, there aren’t. Not one.”

              Your house burned down. You saved the kids, the dog, and the lady next door, but not your ID, which burned up along with everything else you own.

              You are blind and therefore don’t do well on your driving test, and don’t get the license. You also don’t drink, so no need to routinely prove your age.

              You have a vengeful ex, and the divorce didn’t go their way. So they use their key to enter your home, and destroy various vital documents.

              You are an ongoing victim of identity fraud. Your license is revoked, and the state where you were born will no longer issue your documents (like, say, the birth certificate you need to get your license re-issued) to anyone who doesn’t appear in person.

          2. How does one confirm they are a US citizen, eligible to vote in a federal election, without some form of ID that confirms said status?

            Or do you have no problem with foreigners, legal and/or illegal voting in federal elections in violation of the Constitution?

            1. In violation of the constitution?

            2. “How does one confirm they are a US citizen, eligible to vote in a federal election, without some form of ID that confirms said status?”

              They prove they’re a citizen when they register. Then, when they want to vote in an election 25 years later, and there’s no reason to believe they’re NOT still a citizen…

        2. The people who cannot get the proper ID is a sign of incompetence, not evil.

          Some of those people lack a residential street address, which makes it impossible for them to vote.

          And then,

          The district court concluded that several of the Secretary’s arguments about the availability of identification cards were not supported by the evidence. Specifically, it found that the Secretary’s claim that non-driver’s identification cards are available for free was directly contradicted by the North Dakota Department of Transportation’s website, which at the time clearly stated that the cards cost eight dollars, and by the testimony of at least one plaintiff who was charged such a fee. Id.
          at *6; see Brakebill v. Jaeger (Brakebill III), 905 F.3d 553, 562 & n.5 (8th Cir. 2018)
          (Kelly, J., dissenting). And it found that the Secretary’s claim that poll workers
          would accept any identification issued by the Bureau of Indian Affairs (BIA)
          appeared to conflict with the plain text of H.B. 1369, which requires identification to
          be issued by a “tribal government” and makes no mention of the BIA, a federal
          agency. Brakebill II, 2018 WL 1612190, at *6. As for the Secretary’s claim that poll
          workers would accept as a supplemental document any document, even a letter, from
          “tribal authorities” that contained the voter’s name, date of birth, and current RSA,
          the district court expressed skepticism that most poll workers would recognize a letter
          as an “official form of identification issued by a tribal government.” Id. at *5. The
          state had consistently interpreted this language—identical to that used in H.B.
          1333—as requiring an official tribal identification card, not a letter.

          In other words, the state is pretty incompetent, at best, itself.

          1. Did you miss the part where the ruling pointed out that the District Court erred in these conclusions?
            For example, the person who was charged was charged shortly after the fee was dropped, and no one else the plaintiffs found had been charged the fee.
            Or the part where the plaintiffs and their lawyers could not produce a single person who had the correct letters or documents but was still denied a vote?

            1. ” the plaintiffs and their lawyers could not produce a single person who had the correct letters or documents but was still denied a vote?”

              Your theory is that there are no such persons. In states that require registration in advance, you can show up at the polling place with proof that you’re a citizen and resident of the state, and they still won’t let you vote.

              1. So, in a case about North Dakota, you point out that in different states with different laws, different things happen.

                Are you practicing for a non sequitur badge or something?

      2. “The transparent purpose was to disenfranchise a specific set of voters in violation of EPC.”

        Then they did a pretty shitty job of it, because according to the numbers in the opinion there are 13 times more non-Natives that lack the necessary identification than there are Natives. Even on a percentage basis it’s 17% of Natives and 13% of non-Natives. Hardly a surgical strike.

        The opinion also notes that one of the State’s interests in safeguarding voter confidence. And, of course, one of the recommendations that the Blue Ribbon Panel led by Jimmy Carter and James Baker came up with to safeguard voter confidence was voter id laws.

        It’s always interesting how concerned certain people are about one person one vote, right up until it’s time for voting. How is an election official supposed to determine if the voter is voting in the proper district without an address?

        1. Then they did a pretty shitty job of it,

          Nobody is claiming the ND state legislature is full of geniuses.

          1. Or maybe, it was actually for the stated purpose.

            1. Come now, bernard11 has spoken. Much like the Shadow, he looked deep with the hearts of the members of the North Dakota legislature to see the evil lurking within.

      3. “Not if there was no evidence of fraud before the law went into effect, which there wasn’t.”

        If any schmo can walk up and vote based on him saying that he’s eligible, then no one can have any confidence in the election. You don’t need evidence that people have lied in the past to prevent people from lying in the future. If ID’s are difficult for people to get, fix that.

      4. So, now you need evidence of an actual bad thing happening to make a law to avoid it?

        Rather than making a logical progression, and make the law, to head it off before the bad thing happens?

        1. So, now you need evidence of an actual bad thing happening to make a law to avoid it?

          Well, yes.

          If the law involves serious problems for some group, such as interfering with their ability to vote.

          You don’t need that for a law against bank robbery, because that wouldn’t interfere with anyone’s rights. You do need it here. Even the majority opinion admits that. It just said the damage wasn’t big enough, though it made no statement as the size of the benefit, if any.

          1. So, for example, with Obamacare, the Mandate should’ve been illegal, and never passed in the first place?

            I mean, you’re interfering with their rights, by forcing them to buy insurance. But by your logic, no one had ACTUALLY not bought the insurance yet, under the ACA provisions of guaranteed issue, when the law was passed.

            Or was it foreseeable that some people wouldn’t buy insurance…

            I just want to make sure you’re consistent here.

        2. “So, now you need evidence of an actual bad thing happening to make a law to avoid it? ”

          Uh, yeah. You need a DAMN good reason to disenfranchise people. Being able to vote is kind of important in a democracy or democracy-adjacent political system.

          It continues to amaze me how many people are willing to sit by and let other people be disenfranchised… so long as the people to be disenfranchised are somewhere else.

          1. Disenfranchise…That word doesn’t means what you think it means.

            When you enable illegal voting, you effectively disenfranchise everyone else.

            1. And when you embrace or appease race-targeting voter suppression among Republicans, you effectively identify yourself as the type of bigot who will improve America by being replaced.

            2. “When you enable illegal voting, you effectively disenfranchise everyone else.”

              And when you DISable voting by citizens who reside in the district, they are disenfranchised. I think that’s what the word means, and you’re the one trying to redefine it.

          2. Look, the key point here is that voting is substantially different from all other rights, in as much as it is a right to vote in once, in one particular place. This makes exercise of the right contingent on who they are, and where they live, in a way quite unlike any other civil right.

            The government doesn’t inherently need to know who you are, and where you live, for you to exercise freedom of speech, freedom of religion, the right to keep and bear arms. To the extent any of these have been made contingent on providing this information, it is only to facilitate the government’s efforts to deprive specific people of the right.

            But, for voting, and ONLY voting, the government needs to reliably know who you are, and where you live, not to disenfranchise people unqualified, but for any exercise of the right at all, because it is a once per election, particular location right.

            This makes voter ID, voter registration, categorically acceptable, in a way that they can’t be for other rights.

            You want to know the real constitutional violation of the right to vote, that’s endemic in this country? It isn’t voter ID, or registration requirements. It’s the way printed ballots are used to restrict voter choice in places where write in votes aren’t permitted. THAT is a real, glaring violation of the right to vote.

          3. Disenfranchise?
            Are you talking about the CA law whereby they have disenfranchised voters in the upcoming primary?

            1. Having no idea what you’re talking about, no, that’s not what I’m talking about.

        3. Any law, no. Certain laws, yes.
          At various times the courts have held certain rights more important than others. From LBJs “Great Society” protesting and voting have been in that more important category.Fro rights within that more important category, “Strict Scrutiny” is the legal standard for government actions that MIGHT have an effect on those rights. And yes, the standard of “in the absence of proven fraud you are not allowed to even begin to look for proof” is nuts because through certain pinholes they have obtained they do find a few examples but since they are not allowed to look at the whole, or further scrutinize the apparent examples they do find, it don’t count as any proof at all.

      5. They’re disproportionately violent, drunk and uneducated, not to mention that they overwhelmingly vote for Democrats. That’s enough reason alone to disenfranchise them.

        1. You should run for the ND legislature. You’ll fit right in.

          1. Really? He sounds just like Obama talking about rural voters.

            1. Did Obama advocate disenfranchising rural voters?

              If not, you’re full of shit, just like your pal RWH.

              1. So you’re fine with the name calling but differ on which constitutional rights (ease of voting or gun ownership) should be removed because of the stereotypes in the name calling?

                1. I don’t object to (objectively) violent people being relieved of their firearms. But they still get to vote.

                  1. Except the only mechanism for removing firearms from objectively violent people is to convict them of a felony — which also removes their right to vote.

              2. But you just did. Arrogant much?

        2. “They’re disproportionately violent, drunk and uneducated”

          So are country and western fans, and college students on game day are two of the three at minimum.

          1. Yeah, small town America where country music is popular has statistics just like those of the Indians on reservations. Can you people admit for one second that we’re not all genetically equal?

            1. I can admit that some people are playing with a full deck, and some people are missing a few cards.

              You seem to have a deck that consists of the 5 of hearts and the ten of clubs, and that’s all.

  6. “Allegation: Following up on vague tip, police interrogate two teen brothers, each with severe mental disabilities, suspected of the rape and murder of 11-year-old Red Springs, N.C. girl. After hours of continuous questioning punctuated by threats, racial epithets, and empty promises, the brothers sign contradictory confessions written by the officers. They spend 31 years in prison until DNA evidence exonerates them and proves another man was the culprit. Can they sue the officers for coercing their confessions, suppressing evidence that pointed to the other man during the initial investigation? The Fourth Circuit says yes.”

    The prosecutor should be punished also. How did they reconcile contradictory confessions?

    1. The suspect have severe mental disabilities, obvs.

    2. Separate trials, most likely.

  7. ” How did they reconcile contradictory confessions?”

    One of them had to have done it. Let the jury sort it out.

    They were tried separately and both juries convicted their defendant. One of them is wrong but that’s not my problem.

    1. Or, given the actions of the police, it’s quite likely both of them are wrong.

  8. I do find the North Dakota statement exasperating. When there is no mechanism in place to register or detect voter fraud, then the fact that you have no evidence of voter fraud is not evidence of anything.

    However, I will agree. If the state did not have a method for noting location for people without a street address, that is absurd.

    1. Transients are not transient! It’s logical.

    2. The State has numerous methods for noting location yet there are still people that refuse to utilize said methods.

      1. And, for some reason, they work on the election boards.

  9. ” Eighth Circuit: The law is not a substantial burden to the vast majority of eligible voters,”

    In the eighth circuit, how many eligible voters is it illegal to substantially burden? 10? 10,000? 10,000,000? Where is the line?

    By any chance, do poor Native Americans not happen to vote the way the party currently in power in the state of North Dakota would prefer them to?

    1. Based on a small sample, 2305 people did not have the necessary documents at the time of the lawsuit, in January 2016. Note, that doesn’t mean they were eligible and were not allowed to vote – this is the estimated number of Indians that, had they walked in the door the the polling place, would have been denied the right to vote right then.
      They government was able to show that “many” of them would have been able to get the necessary documents, or that the government was already accepting the documents they had, but which the plaintiffs didn’t realize were acceptable.
      The plaintiffs also state they didn’t know they would have had up to a week after voting to acquire and produce the necessary documents AFTER the election. They also state they didn’t know they wouldn’t be charged for IDs.

      So, of the 585,000 or so eligible voters, there were 2305 that didn’t already know they had the necessary documents, or about 0.5% – if all 2305 estimated were eligible and did make an attempt to get documents but somehow failed and were therefore denied the right to vote when they tried.

      Amusingly, the district court complained that there was no evidence of “widespread voter fraud” when rejecting the law, but also claimed that there was “widespread voter confusion” in presenting documents at the polls… without a single instance provided to show it.

  10. Looks like the 9th Circuit court case on immigration is bound to be overturned. (And what is the 9th thinking?!?!)
    Illegal immigrant crosses border, is found hiding under bush by border patrol. Under 8 U.S.C. § 1325(a)(2). “Any alien who …(2) eludes examination or inspection by immigration officers.

    Alien…check. Eluding examination…check. Open, shut, done.
    But suddenly the 9th restricts this to just points of entry? (And then there’s concurrence and the oddness with if you cross the border illegally, but say you did it because you wanted to go to prison, you need to be let go?”

    Seriously, the 9th is making a mockery out of border enforcement, twisting the law into a pretzel.

    1. This looks like a case where the meaning in the law has meaning that is does not match with common usage – in which case the government lawyers f’d up by not charging the correct crime.

      1. If you read the concurrence, the 9th circuit has twisted the definition of the “correct” crime all out of sorts, as to make it extremely difficult to charge. For example, if they arrested the individuals, and these individuals said they were looking to go to a state prison, the individuals would then be let go.

        In addition, the dissent reads it as it stands, quite straightforward.

    2. (And what is the 9th thinking?!?!)

      I think the 9th circuit explained very clearly what it was thinking: if that constituted a crime under (a)(2), then (a)(1) would be entirely superfluous. Since we generally don’t interpret statutes so that one section makes another completely redundant, that isn’t the most logical interpretation of (a)(2).

  11. “White-collar defendant requests pre-trial release, offering to pay for private armed security guards to ensure he doesn’t skip town. District court: No. Second Circuit: Affirmed—not least because the sort of “self-funded private jail[]” the defendant requested would benefit the wealthy alone.”

    Who cares if it benefits the wealthy? If people have the resources to ensure that they are not flight risks or a danger if they stay out of jail, why not let them? They are presumed innocent, after all.

    1. Not if you’re rich. You’re presumed guilty if you’re rich…

  12. ” If people have the resources to ensure that they are not flight risks or a danger if they stay out of jail”

    You don’t get that when the guy writing the checks is the one you want not fleeing.

    1. “You don’t get that when the guy writing the checks is the one you want not fleeing.”

      Perhaps, but that’s not the argument that the court made.

      1. The court didn’t disclose its reasoning, AFAICT. It offered one reason among many.

  13. How could y’all miss the absolute killer in the CA3 banana costume case

    Because Rasta established a reasonable likelihood that it could prove entitlement to protection for the veritable fruits of its intellectual labor, we will affirm.

  14. “Look, I have a whole army of private security who won’t let me out of their sight. And I’m locking myself into my own private prison to which only my security chief has the key, and he answers to me personally, so there will be no funny business on that score. Also, if I escape I simply have to press this remote control and the alarm will be set off. In short, Your Honor, I’ll be securely held pending trial.”

    1. “And given the constant stream of hook – I mean associates – who will be seeing me during visiting hours, it will be fairly obvious if against all odds I’ve escaped.”

      1. (This refers purely to a hypothetical defendant, to illustrate a hypothetical situation. Thank you.)

  15. “And it could be that he gets a new trial (on separate claims that were allowed to proceed to trial) if the gov’t didn’t have a good enough reason to strike three of the four potential black jurors.”

    Are you trying to summon a bitter, factually dubious, dissent by Justice Thomas? Because this is how you get one!

    1. He really really really does not like Batson.

  16. I agree with the dissent in the 2nd Circuit Facebook case. There is a big difference between publishing something to the general public or selling it to all subscribers, on the one hand, and marketing it to specific individuals, on the other.

    Identifying specific individuals deemed likely to buy a product or message and marketing it specifically to them is an act distinct from offering it to the public in general. I agree that the Communications Decency Act’s protections to publishers and publishing activities do not extend to marketing activities.

    I think the Supreme Court should hear the case and resolve the question.

    1. So if FB had shown Hamas posts to everyone in the world, it wouldn’t be liable, but if it shows those posts to fewer people, it would be?

      1. That’s not the principle. It could show content only to paid subscribers and still publish. The act of marketing is completely distinct from the act of publishing. It involves identifying and targeting people likely to be susceptible to a message. For example, suppose Facebook had identified a set of potential recipients of a message without actually sending the message to anyone. It would not have published at all. The act of targeted selling is a distinct act from the art of publishing.

        By way of analogy, advocacy is distinct from soliciting. Soliciting targets specific individuals likely to do the act solicited and asks them to do a specific act. The First Amendment protects advocacy. It does not protect soliciting. The act of targeting alone is not necessarily sufficient to remove First Amendment protection. But it has long been regarded as different from broadcasting to the general public.

        1. “That’s not the principle. It could show content only to paid subscribers and still publish.”

          The point of section 230 is to NOT be the publisher of content written by somebody else.

    2. IMHO there is another part they missed (probably not brought up)
      Predating the now famous Section 230 there was still a “good faith” requirement regarding publishers and what was included in their output.
      They had a legal obligation to make a “good faith effort” to preclude ads for prostitution, or pedophilia or drugs or any unlawful activity in their classified/personal ads.
      That “good faith effort” is a legal obligation. Their protection from being prosecuted or sued depends on it.
      When they supposedly missed the Hamas entries, while they are funding and staffing entire departments to deceive Facebook users and stampede their preferences politically to achieve Facebook’s own political preferences……
      …. that does not preclude that prior legal “good faith effort” obligation, in fact it would seem to be proof of a lack of a good faith effort as the staff hours and efforts are instead politically driven and not available to make more than a token good faith effort. In the presence of failure, token efforts do not usually count in the Courts.

  17. In the Justice Network Inc.’s lawsuit, JNI’s complaint appears to allege, and thereby admit, that it administered its probationary program and arranged for “clients” to be imprisoned with complete disregard for their ability to pay. It appears to have scheduled probationary classes in a manner so as to maximize inconvenience to working people and maximize the likelihood they would be unable to make classes and would thereby incur additional costs. It admits that it’s profits were its main concern in administering the probation system.

    I am suprised nobody has used the allegations as a springboard for a counterclaim or independent lawsuit attempting to hoist them on the petard they have exposed through filing their “civil rights” lawsuit.

    I agree that it is beyond question that the actions the judges took in modifying conditions of probation in what they believed (rightly or wrongly) to be the interests of justice were fundamentally judicial in character and well within the bounds of absolute judicial immunity, whether or not there was any Arkansas statute specifically authorizing them. Even if their actions in modifying sentences in criminal cases before their criminal court were erroneous as a matter of state law, they were still clearly and unequivocally judicial actions.

  18. In the Guam case, I would note that the Constitution accepts the concept of tribal sovereignty and permits tribes to use descent to determine membership, just as nations routinely do with citizenship. It therefore seems a bit unfair to me, even a bit perverse, that if tribal sovereignty is ever extinguished, however involuntarily, any attempt to identify tribe members or treat them differently becomes labeled racist. The Constitution permits Congress to recognize native inhabitants of Guam as a tribe if it wanted. It’s not clear to me why only Congress can give them distinct treatment, but a state or territory can’t. Perhaps the answer is that the Equal Protection Clause applies only to states. But once Congress recognizes a tribe, states can then treat them differently.

  19. The Chamorros on Guam were subjects of the Spanish crown when the territory was ceded to the US, they have never been recognized as an entity by the US government. Look at the conditions of the various unrecognized tribes, some of whom, such as the Lipan Apache, have long been recognized by individual states.

  20. “the prosecutor has no clearly established duty to ensure that anyone is released from jail”

    Say what?!!

    I do hereby declare and establish that prosecutors have a defined duty to release from jail all persons found not guilty.
    There. Done.

    1. “I do hereby declare and establish that prosecutors have a defined duty to release from jail all persons found not guilty.”

      The fact that Joe was found not guilty of THIS crime does not imply that he is not guilty of ANY crime. He may be being held as a result of conviction on another crime, or awaiting trial for another crime, even if he’s found not guilty on one charge.

      Roughly half the country is in a state of outrage because some jurisdictions release people from jail without checking to see if the immigration folks would like to hold onto them.

    2. Prosecutors generally don’t run jails.

  21. “non-utilitarian, sculptural features” of a full-body banana costume…

    Overturned… on appeal ha ha I crack myself up

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