Short Circuit: A Roundup of Recent Federal Court Decisions

A fake university, safe and sanitary conditions, and old school equal protection.

|The Volokh Conspiracy |

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

"We're not asking for the Wild West. We're asking for cookies." New Jersey is the only state that completely bans the sale of homemade food, and home bakers are suing over it. Read more about it in The New York Times.

New on the Short Circuit podcast: Three wise men or three stooges? Special guests Michael Kimberly of McDermott Will & Emery and Adam White of the Scalia Law School discuss the Supreme Court's three big admin law decisions from last term. Click here for iTunes.

  • Allegation: Upset at not getting a full scholarship, female student falsely accuses male Hofstra University tennis coach of sexual harassment. The school declines to interview relevant witnesses, among other procedural irregularities, and fires the coach. Second Circuit: Could be the school favors accusing females over accused males. The coach's suit should not have been dismissed.
  • In 2013, the feds create a fake university, the University of Northern New Jersey. The sting ends in 2016, having secured 22 arrests related to brokering fraudulent student visas. The feds revoke the visas of some 500 foreign students who "enrolled" at the school. (At oral argument, the feds say the students are innocent victims, but later, "for reasons known only to the Government," change their tune.) Third Circuit: The students' class action against the feds should not have been dismissed.
  • Allegation: Tired of hearing a prisoner complain about illness, prison physician assistant falsely claims prisoner harassed/stalked her, leading to prisoner's confinement in "The Yellow Room"—a cold room, kept constantly lit, with no bedding or toilet paper, in which prisoners are given only thin "paper like" garments to wear. Cruel and unusual punishment? Third Circuit:  Sounds like it; warmth and sleep are among "the minimal civilized measure of life's necessities."
  • Allegation: Pennsylvania inmate gets jumped by other inmates who break his jaw. What follows is a year of medical misadventure. Were prison officials deliberately indifferent to his suffering? District Court: Doesn't matter because he didn't exhaust his administrative remedies. Third Circuit: Yes, he did; prison officials just didn't respond to him. The case can go forward.
  • Texas' ban on public corporations owning liquor stores was written by a lobbyist for Texas liquor retailers who wanted to keep competitors out of the state. Does that mean the ban was intended to discriminate against interstate commerce? You might think so, but the Fifth Circuit isn't so sure and asks the district court to take a second look.
  • Mississippi man is convicted of murder in 2004 based largely on the dubious forensic testimony of Dr. Steven Hayne. Turns out lots of folks, including a justice on the Mississippi Supreme Court, think Dr. Hayne is a charlatan whose pseudoscientific methods have led to multiple false convictions. The man seeks habeas relief six months after the release of a deposition transcript of Dr. Hayne that tends to confirm these views. Fifth Circuit: Sorry, but you're required to file a habeas petition within a year of when a reasonable person would have discovered the facts justifying the petition, and people have been saying Dr. Hayne is a hack since way before that deposition transcript was released. So life in prison it is.
  • Allegation: Pretrial detainee is cuffed and shackled, but there's no seatbelt in the van taking him to Harris County, Tex. jail. He's thrown out of his seat by the deputy's sudden accelerating, braking, and swerving. He injures his back, he says, when the deputy hits a pothole or speedbump. Fifth Circuit: "This is not evidence of driving in a manner creating a substantial risk of serious harm."
  • Michigan man is convicted of murder based on the previously recorded testimony of a woman who refused to testify at trial. Shortly after the trial, and repeatedly over the following decade, the witness recants her testimony, claims she was pressured into it by a cop who threatened to have her kids taken away. Also, another eyewitness comes forward claiming she saw the actual killer but did not disclose this earlier because her father, a police officer, told her not to. Enough for a habeas petition? Sixth Circuit: It's certainly enough for the district court to hold an evidentiary hearing, which we now instruct it to do.
  • Grosse Pointe Farms, Mich. woman's estate sues an array of police officers, alleging the woman was murdered and officers told the murderer they would cover up the crime. Sixth Circuit: The estate has failed to make out a claim under the "state-created danger" doctrine (an offshoot of the Due Process Clause). And, adds Judge Murphy (in an all-judge concurrence), we might want to revisit whether the state-created danger doctrine is even a thing. It seems like the Equal Protection Clause might provide "a more plausible textual hook" for claims police denied someone the equal protection of the laws.
  • Man sues Memphis, Tenn. seeking injunction to let him protest on a privately owned street abutting Planned Parenthood clinic. And because he is likely to prevail, says Sixth Circuit, a preliminary injunction must issue; the street "looks and functions like a public street," so it is a traditional public forum.
  • "May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear." So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.
  • Allegation: Illinois man wakes up to find the dead, bloody body of his son. Although the man speaks limited English, police interrogate him for hours with an untrained officer shoddily translating into Korean. The man's confusion (and lack of medication for high blood pressure and diabetes) is obvious. Still, based on the interrogation, he's held in pretrial detention for four years until a jury finally acquits him of the murder—which, it turns out, might have been a suicide. The man sues the officers involved. Seventh Circuit: To a jury this must go.
  • The downside of one of the more nauseating decisions this week? The Seventh Circuit had to explain that "the stench … was compounded as insects became drawn to the standing feces and urine." The upside? No qualified immunity for Lake County, Ill. jail officials who allegedly spent three days depriving pretrial detainees of enough water to drink, bathe, and flush the toilets.
  • The feds interrogate bank robber imprisoned at Pontiac, Ill. correctional facility. He admits to another robbery and accedes to a DNA swab. Bank robber: At the time of the interrogation, I'd been in solitary confinement for a prolonged period. My confession wasn't voluntary. Seventh Circuit: Conviction and sentence (an additional 18 years) affirmed.
  • Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?
  • Pursuant to a 1997 settlement agreement, Border Patrol must ensure "safe and sanitary" conditions for detained minors. Does that mean minors must have access to soap, towels, showers, dry clothing, and toothbrushes even though the agreement doesn't expressly mention them? District court: Yes. Yes, it does. Ninth Circuit: Because the district court is enforcing, rather than modifying, the 1997 agreement, we don't have jurisdiction to reconsider its order.
  • Boynton Beach, Fla. police beat up motorist (who clipped an officer who was on foot) and two passengers after a high-speed chase. Several officers neglect to mention the beating in their incident reports. But wait! It's all on video. A supervisor instructs them to change their reports, tells the FBI he doesn't remember telling anyone to change their reports. Eleventh Circuit: No need to disturb either the conviction of one of the officers for the beating or the supervisor's conviction for trying to mislead the FBI. But it could be their sentences (six months' probation for both of them) were infected by legal error, so the district court needs to take another look at those.
  • Minneapolis police obtain warrant, take drug dealer to hospital for anal cavity search. A doc involuntarily sedates the man, uses forceps to remove a baggie of cocaine. Minnesota Court of Appeals (over a dissent): Which was an unreasonable search. Suppress the evidence.
  • In 2014, Maryland decriminalized possession of less than 10 grams of marijuana, making it a civil offense. So if police come upon a legally parked vehicle, smell "fresh burnt" marijuana, and see a joint in the center console, they do not have probable cause to search the driver, says Maryland's high court. Concurrence: Don't drive stoned.
  • Maryland appellate court: A sexually invasive search to find drugs on the side of a highway requires exigent circumstances, and police convenience doesn't count. Conviction reversed.
  • And in other news, the North Carolina Court of Appeals has withdrawn last week's opinion holding that flipping off a cop gives the cop reasonable suspicion that crime is afoot. Will the panel reverse course? Will it leave the holding intact but further explain its reasoning? Stay tuned.

Earlier this year, Nevada legislators passed a bill that eliminates over $2 mil in funding over the next two years for K–12 scholarships for low-income families. (The scholarships are funded by private businesses that receive a tax credit for donations to scholarship organizations, which then disburse funds to needy families to send their children to private schools.) But the Nevada Constitution requires a two-thirds supermajority in each house of the legislature to pass a revenue-raising bill, which the bill is, so this week IJ filed suit on behalf of parents and students who lost their scholarships and won't be attending the schools of their choice this year. "The quality of school available to a child shouldn't be based on their ZIP code or their parents' income," said IJ Senior Attorney Tim Keller. Click here to read more.

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  1. Man and woman are horsing around at a pool; a bystander interprets this as domestic violence and calls police. When the woman (rather belligerently) attempts to tell the cops what happened, a Wymore, Neb. officer throws her to the ground, fracturing her collarbone. Eighth Circuit (en banc): …Qualified immunity. A dissent: Can we at least find a constitutional violation so the bone-breaking will be prohibited next time?

    Majority response to the dissent: No, we don’t do things that way.

    1. I don’t really blame the Circuit Courts for these decisions. The blame rests solely with the Supreme Court that, above all else, seeks to maintain the power of the government.

  2. “”May police officers shoot an uncooperative individual when he presents an immediate risk to himself but not to others? No, case law makes clear.” So says the Sixth Circuit, affirming a denial of qualified immunity for Shelby County, Tenn. officers who shot and killed a suicidal man who was holding a knife to his own throat.”

    Blazing Saddles was a documentary?

    1. I’m almost more interested in the logic of shooting him rather than whether it was legal or not. What can that possibly be meant to achieve?

      1. Ken yee nae read, laddie? He was threatening someone with a deadly weapon. A life was at risk!

      2. I doubt that the higher cognitive functions were fully engaged. Which is both common and costly in scenarios involving firearms.

      3. A large percentage of cops are sociopaths who enjoy using force against people, the same way normal people enjoy going to the beach.

      4. Committing suicide is illegal. They were saving him from a felony charge. 🙂

    2. “Blazing Saddles was a documentary?”

      Clearly the Shelby County police could use a man like Dr. Samuel Johnson

  3. “Eighth Circuit (en banc): When a 5-foot-tall woman wearing only a bathing suit is neither fleeing, nor resisting arrest, nor ignoring commands, it is clearly established that—just kidding! Qualified immunity.”

    Tough but fair.

  4. The values and tradeoffs which seem implicit in the Mississippi Dr. Hayne case turn “criminal justice system” into a euphemism at best. It should instead be called a “processing system” or something similarly generic so as to do less violence to reality.

    Separate Q on the same case: If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock, and if that’s denied, file again later if better evidence surfaces? Or is that not allowed because, well, “processing” vs. “criminal justice”?

    1. I think the thing that gets lost regarding habeus petitions from state convictions is that at least by current law there is no constitutional right to it (I think that is a debatable position but that is what it has been for decades at least). So allowing it is merely by courtesy. Therefore, when it isn’t allowed the idea is that you really aren’t harmed by that because you have no right to it and you can’t be harmed by Congress’s decision not grant you the courtesy of possible relief.

    2. Generally speaking, no. You get one shot. That’s the catch-22.

    3. ” If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock”

      Ideally, your defense attorney would bring it up before your trial was even over. Remembering things like this while you’re being tried that affect your case is one of the reasons you get a lawyer for your trial.

      1. A difficulty here is that the trial was in 2006. The Innocence Project began its investigation into Dr. Hayne in 2008, and the habeus petition didn’t happen until 2013 when the Innocence Project investigation came up with smoking-gun evidence. It’s not clear exactly at what point the petition was supposed to have been filed. It does appear that (1) the point at which there was sufficient evidence petitioner needed to file may have been well before there was sufficient evidence the petitioner could have won, (2) it’s rather difficult to run an investigation of this type from a prison cell.

        Perhaps, in the future, when the Innocence Project starts investigating someone, it could inform those affected so they don’t lose their right to file for habeas? Perhaps piggy-back so that it’s investigation becomes part of discovery? Of course I’d expect in the meanwhile the jab was petitions would be dismissed for failure to expeditiously prosecute.

        Joseph Heller would have been proud.,

        1. “A difficulty here is that the trial was in 2006.”

          Was Dr. Hayne a hack in 2006?

    4. The values and tradeoffs which seem implicit in the Mississippi Dr. Hayne case turn “criminal justice system” into a euphemism at best. It should instead be called a “processing system” or something similarly generic so as to do less violence to reality.

      I agree. The case is an outrage. Man convicted based on BS testimony by a charlatan, then not allowed to file a habeas petition because of some dubious formalistic ruling about a time limit, so he gets to spend his life in prison for nothing.

      And why is the State of Mississippi fighting this anyway?

      1. And why is the State of Mississippi fighting this anyway?

        Because there’s some pretty compelling evidence of guilt — like the fact that the victim’s brother saw the defendant committing the murder.

        1. That’s about as disingenuous as it’s possible to be. The “victim’s brother” was three years old at the time of the death. He first allegedly told the story 2 months after the event. (And then his actual testimony was a year and a half later.) That’s not “pretty compelling” at all.

          Now, combined with a pathologist saying that the victim was suffocated in a manner consistent with the kid’s testimony, that’s a different story. Except that this pathologist had the slightly bad habit of making stuff up, which some people less charitable than I might call perjury. And without Haynes, you have a three year old who may have been coached.

          1. I knew you were misrepresenting the facts even before I looked them up to confirm, because if there really were compelling evidence other than Hayne’s testimony, that would be an independent reason to deny relief.

    5. If my due diligence in the prison library turns up allegations that the doctor whose testimony put me away for life is a hack, but I’m not sure whether they’re good enough for a habeas petition, can I file with what I have to beat the one-year clock, and if that’s denied, file again later if better evidence surfaces? Or is that not allowed because, well, “processing” vs. “criminal justice”?

      Federal courts generally do not entertain successive habeas applications — that is, you need to present all of your claims for relief together if you want them to be considered. There is an exception that allows a successive claim if “the factual predicate for the claim could not have been discovered previously through the exercise of due diligence”. However, the claimant trying to rely on that exception also needs to show that “the facts underlying the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that, but for constitutional error, no reasonable factfinder would have found the applicant guilty of the underlying offense.” 28 U.S.C. § 2244(b)(2)(B).

      1. IOW, there’s massive Catch-22, just as David says.

  5. Please let me know if I’ve got this wrong, but it sounds as though potentially-corrective elements such as habeas petitions are regarded more as added-value niceties than as being essential to the integrity of the system.
    Which would tend to support my previous comment. Because why fret over corrective measures if integrity and justice are not of paramount importance to begin with?

    1. You need to remember the structure of the country. The states have their own sovereignty as well. So federal intrusion on that is disfavored, and in some cases unconstitutional itself. As a matter of comity to another sovereign, the states, the federal government limits the intrusion it will make on that sovereignty. Punishment of crime is a key component of sovereignty. So it is allowed, but limited so as to not unduly infringe on state sovereignty.

      There is not a singular justice system. Each state, DC, territories, and the federal government all have their own justice system. Only the federal government has any role to play in the others, but as I said above limiting the intrusion is a major part of what role it will play. So, yes, there are other serious concerns that are taken into account to determine when the Federal government should and does intrude on another’s criminal justice system and therefor sovereignty. Because in that situation they aren’t an inherent part of the criminal justice system. They are just inserting themselves into it.

      1. “The states have their own sovereignty as well”

        So long as they abide by the Constitution, at least. When they choose to ignore limits in the Constitution, the feds can land troops. See, e.g., the period from 1861-1865, or when Eisenhower had to send federal troops to enforce school desegregation.

      2. But that does nothing to rebut arch1’s comment.

        You are making federal respect for Mississippi’s sovereignty more important than the integrity of the justice system.

        A bad idea, historically.

        1. I realize that getting it right can’t be the *only* concern (reality’s ambiguous, people are flawed, budgets finite, and so on); but broad acceptance of a person being behind bars for life due to BS such as this is symptomatic of a court / “justice” system in which getting it right has been prioritized somewhat below optimizing the choice of urinal screen supplier for the mens’ bathrooms.

          I’d say this is reminiscent of the scene in the movie “Witness” where Harrison Ford’s character tells the bad cop that he’s “lost the meaning,” but that would be too generous: It begs the question whether the system ever had the meaning in the first place.

          1. The challenge is that we don’t have infinite resources to keep retrying every case, over and over again. Strictly speaking, we don’t even have enough resources to try every case even once, hence plea-bargaining.

            So, you get ONE fair trial, and if you want a second trial, you first have to prove that the first one was, in fact, unfair. (And, in fact, unfair enough to have affected the outcome.)

            Yes, it sucks that we ever put factually-innocent people in jail, and it would really suck if were me instead of one of those guys over there. But, absent divine knowledge, a trial is the best you can get for human justice. Humans are fallible, and so are the things they build.

            1. I agree perfection’s out of reach, but disagree that we can’t do better. If justice really mattered, the avoidance of obvious travesties such as this (man rotting in prison for life due to testimony of a hack, this is known, but key is thrown away on a technicality) would be very nearly top priority, as the incremental cost is small and the benefit very large. More stuff w lower benefit/cost ratio than currently would slip, but overall it’s a net win for justice, and on the same fixed budget. Standard stuff, and it would happen as a matter of course if there were an abiding institutional commitment to justice. If.

              1. ” If justice really mattered, the avoidance of obvious travesties such as this (man rotting in prison for life due to testimony of a hack, this is known, but key is thrown away on a technicality) would be very nearly top priority”

                If only there were some mechanism built into the system that was capable of resolving “obvious travesties like this”. Oh, wait, there is, and has been all along. It’s called “executive clemency”, and it isn’t the court’s province.

                1. James, I am not trying here to indict any particular actors. My point is broader and more fundamental: With respect to justice, our system as a whole can do much better than currently. Imperfection is inevitable, but this level of dysfunction, and the resulting overall quality of justice delivered, is not. We could get a lot more justice with our finite resources, for example, by prioritizing more wisely. This doesn’t require radical innovation. It mainly requires that justice be an abiding and core institutional concern. If we had such a system, there would still be mistakes, some of them big. But obvious travesties such as this would get attention as a matter of course. And a million other changes would happen as well, because the participants would *care*. The fact that decisions such as this one can occur, and not spark widespread outrage, is one of many indications that we aren’t there yet.

                  1. ” With respect to justice, our system as a whole can do much better than currently.”

                    I am not sure that it can do MUCH better. It could be more accurate, objectively, but mistakes are made, and not by “the system”.
                    If you INCREASE the number of proceedings, by, say, giving everybody two trials instead of one, you DECREASE the amount of attention paid to each one. Each proceeding becomes more trivial. “Well, if we screw up this one, they’ll get it right in the next one. Now hurry up, we’ve got a lot more of these to get through.”
                    When you decrease the amount of attention paid to something, does the error rate go up or down?
                    The Framers recognize that no justice system built by man can be perfect, so they built in a way for miscarriages of justice to be addressed. Meanwhile, nearly all of the people in the justice system are at least TRYING to get it right, the first time, every time, and everybody gets at least one appeal before their case leaves the justice system. I don’t think you improve the effectiveness of the justice system by granting everybody two, three, or an unlimited number, of appeals.

  6. I’m sorry, but I cannot agree to the court’s decision on the rectal search of the drug dealer. A warrant was obtained. It was performed in a private doctor’s office. What more could they want? You cannot have a situation in which sufficiently resisting a search means that no search can be performed.

    1. The warrant didn’t grant authority for an internal search, merely a search of his person. Basically, the cop didn’t ask for what he wanted to do, and ignored what was actually authorized because he was either incompetent or didn’t care m

      From the opinion, “The application “request[ed] a warrant to transport Brown to a medical facility and have the baggie removed” from Brown’s rectum. A judge signed a warrant and authorized a search “ON THE PERSON OF BROWN.””

      Whether they could have gotten the warrant they needed, and if so, whether it would have been valid, are separate questions. What the court makes clear though is that they didn’t get a warrant authorizing a body cavity search.

      You can see this problem all over the place, where “I have a warrant” is viewed as the ultimate authority, irrespective of what the warrant actually authorizes.

      1. I thought that yelling “Stop resisting!” was the ultimate authority.

      2. The first warrant said that, and the doctors didn’t think it enough, even though it was clearly the officer’s intent. So he got a second warrant that was more specific but still iffy on that level of intrusion.

        Nowhere can I find evidence the warrant judge considered and rejected it explicitely. This was just crossed communications and sloppy work by the judge.

  7. Your recitation of the facts is mistaken. The first warrant said “ON THE PERSON.” But then they got a second warrant that did (textually, anyway) permit this search.

  8. In the fake university case, I think the students who claimed they had taken courses at the fake university and had accumulated credits which could transfer may, unlike the other students, have made an independent fraudulent representation that might take them out of the class of victims and make them classifiable as accomplices in the fraud. It’s not clear to me all students here are the same.

    1. You’re assuming that it was the students themselves who committed the fraud, rather than someone else paid to get them into the US who does it. (The parallel is the recent college admissions scandal, in which the parents definitely conspired to defraud but it’s unclear whether the students themselves conspired in, or even knew of, the frauds that got them into the college of their parents’ choice.

      There’s a chance that the students whose paperwork claims attendance at the fictional school thought they were paying for legitimate assistance in filing the proper paperwork, and didn’t actually know what the preparer was filing on their behalf.

      If our immigration system was simple enough that everyone could be expected to understand the rules, you could assume that the person filled out their paperwork incorrectly because they themselves were attempting to enter by fraud. But, of course, it isn’t.

      1. According to the opinion some of the students applied to transfer their visas to other universities (not surprising) and in doing so some of them claimed they had been studying and receiving credits at the University of Northern New Jersey. Since that’s a false statement, making such a claim in order to help secure a visa might be considered visa fraud. Not all the students made such claims. So it’s not clear they should all be treated the same.

        1. The question is, did the student make the false claim, or did someone else who is not the student. If the misstatements were made by the students, or by people instructed to do so (specifically) for the student, then you have fraud. If not, however, then you do not have fraud.
          There’s even a possibility that if the misstatements were made by the student, they might not be fraud, they might be mistake.
          If you are talking about students who did, indeed, intend to commit fraud, who got caught committing fraud, nail them to the wall as a warning for the others. But if they didn’t, don’t. And get it right the first time, every time.

  9. I think the Mississippi case involving a man imprisoned for life based on what now appears to be zero credible evidence is crying out for a liberal Gorsuch opinion. The 5th Circuit’s interpretation of the rules creates a Catch-22 that requires a prisoner to file as soon as they suspect there is a problem, well before the state of the evidence is developed enough to enable the them to provide enough evidence to win. If they file as soon as they suspect, they lose on the merits. If they wait to file once the evidence has become clear enough to win, they lose on the timing. The result is that even unambiguously actually innocent prisoners have no way to establish their innocence.

    This is a terrible state of affairs. It needs correction badly.

    1. Obviously, the lesson is to not be convicted in the first place.

  10. A wrinkle in the Hayden case (the Mississippi prisoner convicted on his testimony) is that he sued the Innocence Project for libel and they settled for $100,000. The fact that they settled for a substantial sum tended to suggest, to a non-expert, a tacit admission that their allegations were false. So it’s understandable why people didn’t file habeas petitions until materials from the suit were unsealed and his deposition showed that he admitted to key elements of the allegations.

    The settlement had, before then, appeared to suggest that claims that he provided improper evidence couldn’t be proven in a court of law, and hence a habeas petition would have been futile.

    The Innocence Project’s insurance company, which apparently was the party that decided to settle, appears to have inadvertently destroyed the lives of possibly hundreds of falsely convicted prisoners as a result of its decision and as a result of the 5th circuit’s Catch-22 interpretation of the rules. The 5th Circuit completely ignored the settlement and its implications.

    The question ought not to be when the petitioner first became aware of the allegations, but when the petitioner first became aware the allegations are provable. This case, and the settlement which strongly implied the allegations weren’t probvable until the deposition testimony showing otherwise became public, sharply illustrates the difference.

    The Supreme Court should hear this case and clarify this distinctikn. .

    1. Thanks for digging and summarizing this, ReaderY. It already felt a bit disconnected from reality when the opinion referred to due diligence in the prison law library. But given the facts of this particular case, and given that the relevant procedural law (if that’s the right term) is brain-dead (I’m pretty sure *that’s* the right term), it seems likely that no level of diligence would have sufficed.

  11. The North Carolina “digitus impudicus” opinion in the NC Court of Appeals has been withdrawn. The appellate court had sided with the snowflake highway patrolman.

    There was a vigorous dissent, and an angry response by editorialists and the First Amendment community.

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