Short Circuit: A Roundup of Recent Federal Court Decisions

Counterfeit energy drinks, nunchucks that weren’t, and the dark web

|The Volokh Conspiracy |

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

Just in time for a Labor Day weekend road trip, a new report reveals hundreds of America's worst speed traps. Governing magazine has identified 840 municipalities that are "addicted to fines"—that is, they secured at least a tenth of their budget from fines and forfeitures or raised more than $100 in court revenue per capita. (The national averages are 2% and $10 respectively.) Unsurprisingly, several IJ antagonists made the list, including Doraville, Georgia, a speed trap that punishes petty code violations with private probation and Pagedale, Missouri, where residents once faced fines for mismatched blinds. Read Governing's full report and be sure to check out IJ's commentary over at Forbes.com.

  • Pork producer protests that proceeds of public purse previously planned for pork promotion were purloined in pursuit of prohibited politicking. Is he a proper plaintiff in this proceeding? D.C. Circuit: Preposterous!
  • If a postal inspector submits an affidavit explaining his reasons for believing a package contains methamphetamine along with an attachment describing the package and a magistrate finds probable cause to search that package, is the search's legality defeated by the fact that the warrant itself accidentally includes the wrong attachment describing a totally different package? First Circuit: No, we're pretty sure everyone was clear on what was supposed to happen.
  • Convicted on terrorism charges, defendant argues that an apparent draft letter to his wife found on his computer (in which he proclaimed his allegiance to ISIS) should have been suppressed under the marital privilege. But that privilege protects only documents the drafter intends to actually communicate, says the Second Circuit, and the district court was perfectly reasonable in concluding that there was no evidence the defendant actually intended to send the letter, which was in English, to his wife who spoke only Arabic.
  • Metalheads will rejoice in this Second Circuit opinion that ultimately requires five different short-form citations for cases with the word "Aluminum" in their name in the course of determining that antitrust plaintiffs may be entitled to prevail in their claims of unlawful manipulation of the metals market.
  • The Pennsylvania House opens most legislative sessions with a prayer. Third Circuit (over a dissent): And the First Amendment doesn't require that nontheists be given the chance to offer the invocations. That wouldn't be "prayer" as it's been understood for almost 250 years of American history—as a call for guidance from a higher power.
  • Allegation: Disturbed autistic student in mid-tantrum twirls what he calls "nunchucks" in the principal's office. Southlake, Texas policeman, familiar with the student's disabilities, handcuffs him and screams at him. Fifth Circuit: The boy's suit against the policeman is going to trial. "A jump rope in the hands of an eight-year-old child is not a weapon."
  • University of Michigan student sues school, alleging due process violations during a disciplinary hearing. District court orders the university's president to attend a mandatory settlement conference, then declares that the settlement conference shall be open to the public. Sixth Circuit: Both those orders are far beyond the federal courts' authority. Mandamus!
  • The saga of Kim Davis continues, with the Sixth Circuit affirming that the former county clerk of Rowan County, Ky. does not enjoy qualified immunity for refusing to issue marriage licenses in the wake of Obergefell v. Hodges.
  • Also, says Sixth Circuit, the Commonwealth of Kentucky is on the hook for $222,695 in attorney's fees incurred in a different lawsuit challenging Kim Davis' refusal to issue marriage licenses.
  • A cautionary tale, courtesy of the Seventh Circuit: After stealing 15 handguns from a Shipshewana, Ind. hunting supply store, don't discuss your crime on Facebook Messenger. And in your ensuing federal trial, don't use your chair as a medium for scratching menacing messages directed to government witnesses.
  • California couple undertakes a multimillion-dollar scheme to sell counterfeit 5-hour Energy. Can the government introduce deposition testimony from co-conspirators in an earlier civil case who are now "unavailable" due to invoking their Fifth Amendment right against self-incrimination? Or does that violate the Confrontation Clause of the Sixth Amendment. Ninth Circuit: No need to answer that because the testimony didn't make a difference. Concurrence: But a closer look at the history of the Confrontation Clause suggests that maybe it should have been excluded.
  • Is it cruel and unusual punishment to deny gender-confirmation surgery to a transgender prisoner? Ninth Circuit: We can't speak to every case, but for this prisoner—who has attempted self-castration twice—it definitely is.
  • DOJ allegation: The town of Colorado City, Ariz. is under the effective control of the Fundamentalist Church of Jesus Christ of Latter-Day Saints—headed by convicted sex-offender Warren Jeffs—and discriminates against non-FLDS members. Following a 44-day trial, featuring evidence that town leaders who failed to follow FLDS commands were excommunicated, the district court agrees. Ninth Circuit: And we see no reason to disturb that verdict.
  • After a Sikh man provides a statement to lawyers for another Sikh who was "disappeared" by Punjabi police, he is arrested, beaten, urinated upon, and forced to recant his statement. He flees to the U.S. and seeks asylum. Ninth Circuit: Maybe the police weren't retaliating against you because of your "anti-police views"; maybe they were just mad at you for snitching. Back to India you go.
  • If "quit f'ing faking" is not your immediate response to a man who lies motionless for five days complaining that he has injured his neck and can't feel his legs, then you are obviously not an employee of the Tulsa County Jail. Relatedly, the Tenth Circuit largely affirms a $10 million verdict for the estate of just such a man.
  • Pro se allegation: After my friend got divorced, he refused to help set me up with his ex-wife. That's intentional emotional abuse (also, he's guilty of money laundering and tax evasion). Tenth Circuit: Yeah, we're pretty sure the district court got this one right when it ruled against you.
  • No clever summary; this is just a really interesting, extremely readable (some might say breezy) Eleventh Circuit decision (and dissent) discussing the Fourth Amendment issues that arise when the government takes over a child-pornography site on the dark web and uses it to distribute malware that lets it track down people who visit the site.
  • "We do not sentence people to be stabbed and beaten. But we might as well, if the Majority Opinion is correct." So begins the scathing dissent to this Eleventh Circuit ruling, in which the majority finds that prison officials were not deliberately indifferent to the dangers of being stabbed and beaten after an inmate—who told them that he had witnessed 15 stabbings and that he himself had been threatened with stabbing—was stabbed and beaten.

Although Congress abolished debtors' prisons in 1833 and the U.S. Supreme Court declared them unconstitutional 150 years later, today, thousands of Americans are locked up for failing to pay their debts to the state.  But two rulings by the Fifth Circuit have just struck a one-two punch against modern-day debtors' prisons. Separate panels both unanimously ruled that criminal court judges in Orleans Parish, Louisiana, have an unconstitutional conflict of interest when they collect fines and fees and issue arrest warrants if defendants don't pay up. IJ's very own Nick Sibilla has more about the decisions on Forbes.com.

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  1. I’m pretty sure that if you really wanted to castrate yourself, the targeted parts being soft and fleshy, that one could if you really tried, and further that the afflicted is really (in psych parlance) crying for help and attention.

    How unmoored the 9th Circuit is from any original understanding of the 8th Amendment, in a country that still has the death penalty via decisions from SCOTUS, that a man has a right to have the taxpayers pony up for his junk to be cut off and reformed into a bleeding wound in the shape of a fake vagina.

    1. “I’m pretty sure that if you really wanted to castrate yourself, the targeted parts being soft and fleshy, that one could if you really tried”

      In prison, the available toolset is somewhat limited. That might make a difference.

        1. They tend to take those away when they find them.

        2. But is someone who is willing to both a) attempt self castration while b) doing so without a shank also competent enough to get one?

          The very fact of the shank-less attempt is evidence of the unavailability of one, at least for this person.

      1. On the farm, we’d make do with a rubber band or string.

        1. Explains a lot.

        2. You attempted self castration twice? With a rubber band and then with a string?

          😉

        3. There’s a bit that’s semi-related in this week’s “News of the Weird” column.

    2. It is obvious the poor man has never read about Lorena Bobbitt!

  2. I’ve never been a theist and I can’t say I’d be upset if I weren’t given the opportunity to open something with a prayer. I’d be more upset if I were asked to do so and it was known that I’m an atheist. An atheist getting butthurt over not leading a prayer is stupid, whether they call themselves “humanists” or not.

  3. I’m impressed and slightly surprised at how well the map of fine-dependent communities lines up with state borders. What makes Georgia stand out from it’s neighbors? Why is the crook of Louisiana dense while the neighboring part of Mississippi is not? Why is the border of Ohio lined with such communities? What’s so different between New York and Pennsylvania?

    I have one theory that could easily be checked out if one bothered: I bet that at least the southern states with reliant communities don’t pull in as much revenue from taxation, particularly property taxes. My state apparently doesn’t have any such community but our property taxes are relatively high. A quick check of relative rates supports some, but not all. Texas has high property taxes but has high fines while Alabama has low taxes but relatively fewer fine-reliant communities.

  4. “an unconstitutional conflict of interest when they collect fines and fees and issue arrest warrants if defendants don’t pay up”

    If a convicted defendant does not show up at prison, I guess no arrest warrants then either.

    Making criminals pay their fines is not “debtor’s prison”.

    1. “Making criminals pay their fines is not “debtor’s prison”.”

      Unless, of course, it is.
      When the fines consist solely or mostly of “fees”.

      1. Yeah, unfortunately, these cases – where people are imprisoned for being unable to pay fines, it’s hard to call it anything else.

        If someone is capable, but unwilling, to pay a fine (and has somehow protected their assets from the government) – then jail is fine.
        But these sorts of cases are about fines on poor people for things like (mentioned at the top) having mismatched blinds.

        1. And the standard for this really ought to be that of civil contempt. Imprisonment is only valid as a means to force compliance, if they won’t comply indefinite imprisonment, while if they can’t no imprisonment is valid.

          Of course, what to do with the perpetual lawbreaker who’s broke is a separate problem.

    2. When the judges who collect the fines and fees, or require the posting of a bond, are also the ones who administer and benefit from the fund in which part of the fee goes, then there is a conflict of interest and a violation of due process.

  5. “gender-confirmation surgery ”

    Newspeak contineus its advance.

    1. This particular bit of terminology comes from corrective surgery for people born intersex.

  6. The eleventh circuit should have run their summary of computer technology through the court’s network-support staff.

    “An IP address is a unique numerical identifier, tantamount to a computer’s name. ”

    IP addresses are not unique, and are not similar to a computer’s name. Further, they have been highly mutable for a quarter-century now.

    What IS a unique numerical identifier, tantamount to a computer’s name, is the MAC address. But a MAC address is absolutely useless in tracking the real-world location of a computer.

    The poor summary provided in the opinion suggests (alas) that the circuit judges don’t actually understand how the NIT works. This opens to question whether or not the opinion really is sound.

    1. They seem to acknowledge some of the problems with that description immediately after, then brush off the problems without actually addressing them. Also – “the laptop era”? Was this written in 2005? No, it was released two days ago.

      Instead, this is the part that concerns me:

      We disagree. The NIT didn’t reveal “locational information” at all—it didn’t even send a locational snapshot, let alone the type of ongoing, GPS coordinate transmissions that would “permit[] the tracking of the movement of a person or object” within the meaning of Rule 41(b)(4).

      It misunderstands physical-world beacons AND attempts to force physical-world analogies onto electronic spaces. The ignorance shown there bothers me more, and I find their conclusions… unconvincing.

      On the other hand, the FBI agents swearing that all the target computers would be within the Eastern District of Virginia was obvious BS from the get-go, and they deserve to be punished for lying about it.

      1. I chalked that up to the FBI claiming that the users of the website were accessing the server, and they knew that there was unlawful materials on the server. What they were trying to determine is the location of the user, and they didn’t know that the user’s computer had any contraband on it.

  7. Another atheist invocation in Huntsville, Alabama.

    https://www.youtube.com/watch?v=FbwSpXqYNWU

    You can tell it’s Alabama because he refers to “the antients” and “virtue” along with his mentions of diversity.

  8. Basically, if someone owes you money and hasn’t paid on time, you can’t put them in prison, absent fraud. But if it’s a nonfraudulent “I don’t got the money, honest” then they can stay free.

    Exception – if the creditor is the government. Then lock ’em up!

    The Motherland (England) used to be at least consistent. Couldn’t pay the grocer who sold to you on credit? Off to prison you go!

  9. If a prisoner has tried to kill himself, does the State have an obligation to provide assisted suicide?

    1. Ask Gary Gilmore. Oops, you’re way to late… the state killed him.

  10. Let’s see…in 1972 a unanimous Supreme Court clearly established the law: There’s no right to same-sex marriage in the U. S. Constitution.

    This wasn’t just any Supreme Court, it was a Court which had Brennan, Marshal and others who were highly flexible in constitutional interpretation. But not *that* flexible.

    What’s more, they said that gay marriage was so clearly *not* a constitutional right that the issue didn’t present a substantial Constitutional question.

    Now, the issue has gone the other way, so that anyone who takes the same position as Brennan and Marshal and the other Supreme Court justices in 1972 is an egregious violator of “clearly established” law.

    We have always been at war with Eastasia.

    1. “in 1972 a unanimous Supreme Court clearly established the law: There’s no right to same-sex marriage in the U. S. Constitution.”

      But there IS a right be be treated equally under the law. Taking lawful marriages away from some people but not others is unequal treatment under the law.

      1. Only partially.

        Similarly situated persons have to be treated equally, so that just moved the question to who are similarly situated.

        If everyone had to be treated equally the bigamy and statutory rape laws would also have to go, as they treat people differently based on age and prior marital status.

        The real question under this really boils down to which factors should matter, and which should not, under which conditions. Once we’ve figured out a principle we can really start to apply the equal protection clause is a consistent way.

        1. “If everyone had to be treated equally the bigamy and statutory rape laws would also have to go”

          No, they wouldn’t, if the purpose served by limiting the right is compelling enough. Just like “Congress shall make no law…” in the first amendment turns out to mean “OK, Congress can make a few laws” if the topic is kiddie porn, and even if it isn’t they can make time, place and manner restrictions if there’s a good enough reason. Or they could do what many states do, and flatly hold that statutory rape doesn’t apply to married couples.

      2. Haven’t you heard? A gay man has the same equal right as a straight man to marry a woman!

        1. Sure. But he also has the same equal right to not have his marriage invalidated ex post facto as a straight man.

      3. “But there IS a right be be treated equally under the law. Taking lawful marriages away from some people but not others is unequal treatment under the law.”

        …and so we’re back to the definition of “lawful marriages.”

        In the Swinging Seventies, with the support of William Brennan himself, the Court said that not only is there no right to same-sex marriage, but it presents no substantial constitutional question. But with a quick change of Party line, everyone who believes as Brennan believed becomes an Old-Thinker who must be punished, and pointing out that the Party has changed the line it held until virtually yesterday does not abate in the slightest the zeal of the Party’s cheerleaders for the newest “line,” or inspire any charity toward the benighted Old Thinkers who cling quaintly to the idea that a unanimous Court was right in 1972.

        1. The fact that the Constitution didn’t require states to offer marriage to same-sex couples doesn’t mean that the Constitution prohibited states from doing so. Can you see that these are two different things? Never mind, apparently not.

          1. Nice evasion – apparently your case is so weak that you need to introduce these silly changes of subject.

            The Court said in 1972 that there was not only is there no constitutional right to same-sex marriage, but that the issue raised no substantial constitutional question.

            Now we’re told not only that there *is* a constitutional right to same-sex marriage, but that this right is settled law.

            This 180 degree turn is what you support, not the babble you just uttered.

            1. And since you acknowledge that at one point in the past “the Constitution didn’t require states to offer marriage to same-sex couples” – you even refer to this as a “fact” – then when did things change? When did the Constitution change in order to require states to offer marriage to same-sex couples? And when did this become established law?

              1. “And since you acknowledge that at one point in the past “the Constitution didn’t require states to offer marriage to same-sex couples” – you even refer to this as a “fact” – then when did things change?”

                It changed when one of the states decided to offer it. Duh. As I said before. What caused the change was the attempt to revoke the same-sex marriages lawfully recognized by the state of California. (This is differentiated from the previous Oregon case, where one county commission found that Oregon’s marriage statute didn’t specify that licenses were to be denied to same-sex couples who applied for one. The Oregon Supreme Court ruled that the county lacked the authority to issue the licenses, and they were void ab initio… in California, the California Supreme Court said the licenses were valid.)

                1. Curiously, I couldn’t find references to California in the Obergefell decision (though the state gets a couple shout-outs in a dissent).

                  1. Ah, I found it in an appendix – they list the California Supreme Court’s decision along with decisions by other pro-gay-marriage courts.

                    1. “In addition the highest courts of many States have contributed to this ongoing dialogue in decisions interpreting their own State
                      Constitutions. These state and federal judicial opinions are cited in Appendix A, infra.”

                    2. You talk to yourself too much.

                    3. I can either talk to someone intelligent or I can talk to you.

                    4. Well, you can talk AT someone intelligent.

                    5. A pity you can’t master talking LIKE someone intelligent.

            2. “Nice evasion – apparently your case is so weak that you need to introduce these silly changes of subject.”

              It’s no use explaining things to you. You can lead a horse to water, but you can’t make him think.

              “Now we’re told not only that there *is* a constitutional right to same-sex marriage, but that this right is settled law.”

              Because what changed between point A and point B was that one of the states offered marriages to people of the same sex, and then tried to revoke the marriages. Whereas they didn’t have to offer them, they can’t revoke them ex post facto.

              Just like it would be an equal protection violation to revoke the marriages of, say, Catholics, while leaving everyone else’s alone.

              1. Let me check the Obergefell decision:

                “Held: The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State.”

                https://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

                Nothing in there limiting the decision to only those couples whose same-sex unions have previously been blessed by another state. Quite the contrary.

                1. “Whereas they didn’t have to offer them, they can’t revoke them ex post facto.”

                  You’re defending a hypothetical decision which is narrower than what the Supreme Court actually did in the Obergefell case.

                  And your hypothetical decision wouldn’t justify proceedings against Kim Davis.

                  The state of Kentucky never offered marriages to same-sex couples, and you acknowledge Kentucky didn’t have to.

                  Never having offered them, there’s nothing to revoke.

                  By your admission, then, since Kentucky didn’t have to grant same-sex marriage licenses in the first place, then it would be illegal to impose a prison term and damages on Kim Davis for following the Kentucky Constitution.

                  (And if a same-sex couple got married in some other state then moved to Kentucky, Davis would have had nothing to do with it, because there would be no license for her to issue – the other state would already have issued it.)

                  1. You’re abysmally bad at summarizing what other people have said.

                    1. You’re abysmally bad at motte and bailey tactics.

                      You acknowledge that the states don’t have to grant same-sex marriages – “Whereas they didn’t have to offer them, they can’t revoke them ex post facto.”

                      Kim Davis didn’t revoke anyone’s gay marriage ex post facto.

                      And by your admission states don’t have to offer any gay marriages so long as they don’t revoke those previously granted.

                      It wasn’t Davis’ responsibility to block gay marriages granted by states which had authorized them.

                      So your argument doesn’t justify what happened here.

                      To defend that, you’d have to defend the Obergefell decision, which understandably enough you don’t want to do.

                    2. “You’re abysmally bad at summarizing what other people have said.”

                      Addendum:
                      And absolutely fabulous at spouting nonsense.

                    3. Since I was quoting you, I guess I *was* spouting nonsense.

                    4. Like a teenager protesting that “nobody understands me,” you seem more effective at conveying frustration than in communicating intelligibly.

                      Or perhaps you *are* communicating intelligibly but your arguments aren’t doing the work you want them to, so you try to blame others.

                      All I have to go on are your actual words – and you described how California (and you could certainly have mentioned other states) issued same-sex marriage licenses and then tried to revoke them, which you say is unconstitutional.

                      Constitutional or not, it has nothing to do with Kim Davis, who never claimed the authority to revoke same-sex marriage licenses issued by other states.

                      She wasn’t ordered to respect licenses already issued by other states – or even by her own state – she was ordered to *issue* licenses as an initial matter.

                      The Supreme Court declared in 1972, in Baker v. Nelson, that there was no substantial constitutional issue raised by suits like the one against Davis.

                      Then in 2015 the Supreme Court said this: “Baker v. Nelson
                      must be and now is overruled.”

                      Either they were right the first time, when with the concurrence of liberal lions like William Brennan they *unanimously* took the side of clerks like Davis, or they were right in 2015 when they said they were wrong in 1972.

                      We have always been at war with Eastasia.

                    5. “Like a teenager protesting that “nobody understands me,” you seem more effective at conveying frustration than in communicating intelligibly. ”

                      Says the guy who gets into arguments with himself.

                    6. Arguing with an intelligent person gives me experience which I can apply to arguing with morons like you.

                      I observe that you haven’t bothered to justify your arguments, except by locking yourself in your room and proclaiming that your parents don’t understand you.

                    7. “Arguing with an intelligent person gives me experience which I can apply to arguing with morons like you.”

                      Come back when you can make a reasonable facsimile of arguing like an intelligent person. This stuff you do now in an insult to 5th-graders everywhere.

                    8. You’ve tried name-calling, you’ve tried protesting that nobody understands you, you’ve tried everything except explain the link between the Obergefell decision and the State of California revoking some gay-marriage licenses “ex post facto.”

                      You’re concealing your lack of a legitimate reply behind a cloaking device of insults.

                      Carry on, Klingon.

  11. Disturbed autistic student in mid-tantrum twirls what he calls “nunchucks” in the principal’s office. …
    Fifth Circuit: The boy’s suit against the policeman is going to trial. “A jump rope in the hands of an eight-year-old child is not a weapon.”

    Interestingly, under a law passed shortly after the TV series “Kung Fu” was aired, a jump rope with handles on it would fit the definition of “nunchaku”, being “two or more rods connected by a rope, cord, chain, or wire”. (Quoting from decades-old memory, so probably not quite exact.) I don’t know if the law was ever changed.

  12. So if I’ve decided I was born with a nose that’s the wrong shape, I can get arrested and jailed, and then the State has to pay for a nose job (or “appearance-conformation surgery”)?

  13. In the “USA v Moss case [meth in two packages]:
    1. “Dustin Moss (“Moss”) appeals from the district court’s denial of his motion to suppress . . . as well as any evidence resulting from the searches of those packages. After careful review, we affirm.”

    I don’t understand the appellate court’s inclusion of “careful.” I mean, has a court ever written, “After a rushed and dilatory review…” or “After an intentionally incompetent review…”? Is this for the benefit of a possible SCOTUS analysis. Justice Thomas for the majority, “We overturn the lower court’s review due to its improper . . . oh wait; it was a **careful** review. Never mind–affirmed.”

    2. Although I find the court’s use of “careful” really odd; I have to congratulate the opinion’s author. It was the first time I’ve read a legal opinion that used the word “furled.” [p. 10, fn 7]

    1. “We handed the case file to one of our clerks, who didn’t see anything wrong with the decision of the lower court. Affirmed.”

  14. The one about emotional abuse (for a friend not setting the guy up with his ex-wife) leads me to ask a question that maybe I could find the answer for in a 30-minute google search, but I might get more quickly here:

    Do appeals courts have to hear every appeal brought to them? Do they not have discretion (like the SCOTUS does) not to hear cases that (to my non-lawyer’s eyes) don’t seem to have any merit?

    Again, I’m not a lawyer. Maybe there was a real issue (or real-enough issue) that the appeals court would’ve chosen (and did choose) to take the case when it didn’t necessarily have to.

    1. Yes, you generally have an appeal of right from the final decision of a U.S. district court judge.

  15. > ELEVENTH CIRCUIT: In the normal world of web browsing, an internet service provider assigns an IP address—a unique numerical identifier—to every computer that it provides with internet access.

    This is clearly wrong. The majority of internet connected home computers are behind a NAT (Network Address Translation) firewall/router and there may be any number (though typically a handful) of computers and other devices behind the router/firewall device, on both wired and wireless connections. To say that an IP address uniquely identifies a given home computer is typically not the case. The IP address generally identifies all of the subscriber’s household computers, other internet-connected devices and anything connected to its wireless network.

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