Short Circuit: A Roundup of Recent Federal Court Decisions

Golf swingers, a gangrenous finger, and the ancient concept of "frolic."

|The Volokh Conspiracy |

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

New on the podcast: A special live Third Circuit edition featuring Matthew Stiegler, appellate litigator and proprietor of the magnificent CA3blog.com, as well as Penn Law Professors Claire Finkelstein and Mitch Berman. Click here for iTunes.

  • Pennsylvania state senator uses gov't-funded legislative staff to do campaign work, which is not legal. (Her sister, a state Supreme Court justice, also uses the senator's staff to do campaign work.) At trial, the now-former senator introduces forged evidence. The judge declares a mistrial. After a second trial, she is convicted on an array of charges, including forgery. Double jeopardy? Third Circuit: No.
  • Allegation: For many years, Houston officials failed to test rape kits, which allowed serial rapists to commit additional crimes. Fifth Circuit: But the city has been trying to get its act together since 2013, so this suit, filed in 2017, is barred by one-year and two-year statutes of limitations.
  • Dallas police officials determine that detective "entered inaccurate and incomplete information" in probable cause affidavit to obtain arrest warrant for murder suspect. (The arrest warrant relied on an eyewitness who wasn't sober, told inconsistent stories (including saying his mother was at the crime scene), and was so distressed he tried to strangle himself with his own shirt, all of which the detective neglected to share with the judge.) Can the suspect, against whom all charges were dropped, sue the detective for false arrest? Fifth Circuit: Qualified immunity.
  • Ohio law prohibits doctors from providing abortions when they know the woman's reason is because the baby has Down syndrome. Sixth Circuit: Women have an absolute right to choose whether to terminate or continue a pre-viability pregnancy. Dissent: We're supposed to analyze the law using evidence and considering gov't interests at stake, not just nod to the legal standard with conclusory rhetoric.
  • Allegation: Inmate at the Genesee County, Mich. jail is blinded by pepper spray before two deputies march him down a hall and slam him into doors and walls. Excessive force? Deputy: Sure, I was one of the two officers who marched him down the hall, but the inmate can't say whether I was the one who did the door- and wall-slamming. Because, you see, he was temporarily blinded by the pepper spray. Sixth Circuit: Not so fast. The question of the deputy's involvement must go to a jury.
  • "This court once observed, '[w]hen a party comes to us with nine grounds for reversing the district court, that usually means there are none.' [Plaintiff] comes to us with twenty-seven." So writes Judge McKeague of the Sixth Circuit, affirming the district court.
  • On duty, out-of-uniform Detroit police officer barges into acquaintance's home to collect a $300 personal debt. Fingers are pointed, mace is sprayed, and the officer fires her service revolver, grazing a second occupant of the home. No dice on the occupants' federal constitutional claims, declares the Sixth Circuit. The officer's behavior "was the definition of the ancient concept of 'frolic.'"
  • Chicago film studio claims a state agency violated its rights by steering grants and business to its rival. An equal protection problem? The Seventh Circuit says no—because the rival studio was way, way better.
  • Reality show contestant sues rapper for sexual battery after he gropes, exposes her privates to a crowd at a bar. The rapper doesn't show up for trial, disparages the contestant on social media "in exceedingly vulgar terms." The jury returns a $7.1 mil verdict against him. Rapper: The trial judge wrongly allowed the jury to watch a video of me threatening (in front of the show's cast and film crew) to strangle the contestant. I should get a new trial. Seventh Circuit: Not so.
  • Two teenagers camping in Yosemite National Park campground are killed when a tree limb falls on their tent. Can their parents sue the feds for negligence? Two-thirds of a Ninth Circuit panel says yes; could be park officials knew or should have known the tree was a hazard.
  • Inmate cuts his ring finger, develops gangrene, and has the finger amputated. He sues in Kansas court without the benefit of counsel; his case is dismissed because he did not first notify the municipality, Wyandotte County, of his impending suit as required by state law. Tenth Circuit: And while he pursued his claim in state court, the deadline to sue in federal court came and went. So he can't sue here either.
  • In 2001, Justice Antonin Scalia famously asked, "What is golf?" This week, the Tenth Circuit took up the case of the late pro Moe Norman and his famous "single plane" swing. [Practice tip: If external circumstances force you to give up on a case, DO NOT concede that your opponent is the prevailing party.]
  • Retailer seeks permission to sell sex toys at Gwinnett County, Ga. store, but officials demur. The retailer sues, shenanigans ensue. The county repeals the adult entertainment ordinance and replaces it with a new one. District Court: The case is moot. Eleventh Circuit (2016): Not entirely; the retailer may pursue damages under the old ordinance and should probably be able to challenge the new ordinance. Meanwhile, the county seeks to enjoin the sale of the toys in state court. District Court: Aha! You can't sue in federal court while a state enforcement proceeding proceeds. Eleventh Circuit (2019, over a dissent): The retailer's suit, which has been going on for over four years, was far enough long that Younger abstention doesn't apply.
  • Man declines to speak with police, retreats from his porch back into the living room, where a Santa Rosa County, Fla. officer follows, tackles, and arrests him. False arrest? District court: Could be failing to talk to the officer was a misdemeanor offense (resisting an officer without violence). Qualified immunity. Eleventh Circuit: Reversed. Even if the officer had probable cause to make an arrest, he needed a warrant to enter the home without consent.
  • Man sells cocaine to undercover cops. A search of his Myrtle Beach, S.C. home yields more drugs and just over $20k in cash. And state law permits law enforcement agencies involved in a forfeiture to reap 75% of the proceeds, so can the cops keep the cash? South Carolina trial court: No dice. The forfeiture statutes violate the Eighth Amendment's prohibition on excessive fines and the due process protections safeguarded by both the Fifth Amendment and the South Carolina Constitution.
  • Per Hailey's Law, Washington state police are required to impound a vehicle any time they arrest the driver for a DUI, regardless of whether the car is off the road or someone else can safely drive it away. But that violates the state's constitution, explains the Washington Supreme Court, because warrantless seizures require individualized consideration of the circumstances. This law eliminates that individualized consideration, and the legislature cannot legislate constitutional rights away. (IJ signed on to an amicus brief urging the court to reach this holding.)
  • And in en banc news, the Fourth Circuit will reconsider its ruling that Maryland and D.C. lack standing to sue President Trump for violating the Constitution's Emoluments Clauses by maintaining an ownership interest in various hotels and other businesses that provide him with millions of dollars from foreign and local gov'ts.

Late last year, Oregon engineer Mats Järlström scored an important First Amendment victory against the state's engineering board. Mats, who has a degree in electrical engineering, had done some research and concluded the math behind how the state's yellow traffic lights were timed was incomplete. When he presented his findings, the engineering board investigated him for two years and then fined him $500 for daring to talk about math without a license from the board. In 2018, a federal judge put a stop to that. And last month, Mats got a second round of vindication when, based on his findings, a team of engineers and activists persuaded the Institute of Transportation Engineers to reevaluate its guidelines. Click here for more.

NEXT: HBO's Catherine The Great Is All Glamour, Little Substance

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  1. Did you even read the Fifth Circuit QI case. It’s only ten pages long for cripes sake. Though detective Perez used QI as an alternate theory for why Jones should not prevail in his civil rights lawsuit, she ultimately prevailed because the court found that probable cause for arrest existed. QI did not enter into the decision. It’s just as easy to get these things right as it is to get them wrong.

  2. 6th Circuit: They are “useless eaters” anyway per Judge Karl Brandt

  3. Sixth Circuit. The officer’s behavior “was the definition of the ancient concept of ‘frolic.'”

    The way a frog hops about?

  4. The Ninth Circuit is just wrong. For the same reason you can’t win a suit for getting hit by a foul ball at a baseball game, you should not be able to sue for not seeing the dead branch above your tent. In fact, you should be even less able to sue because you have no control over whether a ball will come your way during a game but any Scout will tell you that tent campers are specifically taught to check for and to not camp under widowmakers.

    1. Well, yes, but arguably that’s why they should lose the suit, not a reason why they shouldn’t be able to file it. How obvious the widowmaker was, might be a job for a jury to decide.

      1. If it was obvious, then the landlords lose, for not addressing a known hazard. “They should have known it was a hazard, too” doesn’t negate the liability.

        1. If it was obvious, then the campers lose because they were the most recent people with the opportunity to see and avoid the danger. Moving your tent so it’s not under a widowmaker is a really easy task.

          The Park Service, on the other hand, at best had the opportunity to have seen the widowmaker at some point in the past, has no way to know about new dangers (new widowmakers develop every day) and has no practical way to remediate the dangers in realtime. The only way to prevent widowmakers is to cut down all the trees – which defeats the purpose and ruins the area for the very purpose of camping.

          1. Take it up with 300 years of common law, with which you seem to disagree.

    2. I’m not sure I agree with you. Property owners are required to make reasonable efforts to protect against known hazards. In baseball they do that by warning because they can’t know when or where a ball will go into the stands. But the government as landowner has a duty to inspect and protect (the level of protection contigent on the status of the person harmed (e.g. business, guest, trespasser)). If it didn’t do that then it is liable just as any ordinary landowner would be.

    3. The issue in this case wasn’t whether the Park Service was in fact negligent. It was whether that putative negligence would fall within the scope of the federal government’s waiver of sovereign immunity.

  5. “Can the suspect, against whom all charges were dropped, sue the detective for false arrest? Fifth Circuit: Qualified immunity.”

    I continue to think that, if you were drafting a modern declaration of independence, “Qualified immunity” would feature prominently in it.

    1. As noted above, qualified immunity didn’t play a role in this case: both the trial court and the Fifth Circuit found that the defendant’s constitutional rights had not been violated at all.

      1. Yeah, “But the Supreme Court has warned that there is no right under the Fourteenth Amendment “to be free from criminal prosecution except upon probable cause.” would itself get an entry in a modern Declaration of Independence.

        The fact remains that it is the judge who is to exercise judgement as to whether a warrant should be issued, not the cop. The process deliberately separates judgement and execution, to prevent judgement from becoming a mere formality.

        Depriving the judge of relevant facts is still an effort to circumvent that judgement, even if the cop himself has enough information to make the judgement. It isn’t his judgement to make!

        So I don’t buy their excuse for denying that there was a rights violation.

        And, yeah, the court did say “qualified immunity”.

        1. “The fact remains that it is the judge who is to exercise judgement [sic] as to whether a warrant should be issued, not a cop.”

          I disagree. The judge’s job is to determine the purely legal question of whether the proposed warrant is supported by probable cause. Deciding the wisdom of instituting criminal litigation is an executive-branch function. If a judge wants to exercise discretion as to whether issuing a particular warrant is a wise way to enforce the criminal law at issue, he or she must step first down from the bench and join the prosecutor’s office or the police department.

          1. ” The judge’s job is to determine the purely legal question of whether the proposed warrant is supported by probable cause.”

            Precisely: It is the JUDGE’s job to decide if there is probable cause, not the cop’s job. The constitutional rights violation of a warrant issued on the basis of the judge deliberately having been kept in the dark about evidence impugning the reliability of the witness isn’t cured by the cop having access to still more evidence the judge was kept in the dark about.

            1. I guess I took your use of the word “judgement ” to mean discretion. The judge’s job is to determine the existence of probable cause. If it exists, his job is to issue the warrant whether or not in his “judgement” it would be a wise use of law enforcement resources to do so.
              I agree, and the caselaw agrees (most famously, the case of Franks v. Delaware) , that when facts material to a finding of probable cause are deliberately or recklessly left out of the warrant application, the ensuing warrant will be invalid.

  6. People can still sue for getting hit by foul balls, they just don’t win. This is very similar, considering that the government didn’t offer a very good argument as to why dismissal was the correct choice. The government just argued that posting a warning was “subject to policy considerations.”

    They won’t win, as long as the government actually bothers to make a real argument.

  7. Ohio abortion case dissent:
    On the one hand, what need is there for substantive analysis? If an act is legal bar the speech (which the law grants), and the speech is constitutionally protected (which it certainly is), then the act + the speech can’t be illegal. That’s just crazy. Court should have been able to quickly dispose of this case.

    On the other hand, what possible legitimate interest could the state have here? An interest in increasing the number of Down’s Syndrome victims? An interest in prohibiting abortion seekers from making rational choices? This doesn’t pass the laugh test.

    1. So if Roe v Wade is overturned, and the government then passes a ban on white parents having abortions, but makes it still legal for non-whites to have abortions, that’s perfectly ok?

      The governmental interest in protecting vulnerable classes would certainly apply in this case – children with Down syndrome are more likely to be aborted than just about any other group, and they’re inherently not in a position to defend themselves (either before birth, or after – Down syndrome, after all).

      Or how about the government pass a law that says abortions for undesirables is not only ok, but will be paid by the state? And then someone creates a non profit organization to execute that plan…. maybe they could call it planned parenthood?

      Where does this line end?

      *i think the state could also pass a law that requires an abortion decision to occur before knowing the sex or presence of any disabilities of the neonate, and for the same reason. China’s run into this problem, where girls are aborted so the parent can try again for boys, and that’s disgusting.

      1. “The governmental interest in protecting vulnerable classes would certainly apply in this case”

        But under Roe v. Wade, the mother’s privacy interest in choosing her own medical care outweighs the states’ interest in the pregnancy, pre-viability. This is true whether the state is acting to protect the right to life of the unborn child, or whether the state is protecting the right to life of the unborn child who is also a member of a particularly vulnerable class of unborn children.
        The state’s interest doesn’t preempt the mother’s interest unless the fetus (with whatever medical issues it might have) is viable outside the uterus it’s housed in.

        1. That’s not an accurate summary of Roe, which in any case has not been the controlling standard since 1992.

      2. What is the state’s legitimate interest that discriminates between white and non-white parent abortions? No it’s not okay, because there’s no legitimate interest by the state involved. (Even more importantly, it’s government discrimination on the basis of race, which even if Roe v. Wade was overturned, is still illegal). A state can’t claim anything and everything as a legitimate interest.

        The key issue you’re skirting around – where’s the legitimate state interest?

        Secondly, how can an otherwise legal act combined with constitutionally protected speech become an illegal act? There’s no way that make sense.

        =========
        Specific points:
        Re: vulnerable classes – it’s a fetus, it’s not a child yet. It doesn’t belong to any class deserving protection. And while the future child having Down’s Syndrome may be a legitimate interest of the mother in making the decision, its hardly a legitimate interest of the state’s.

        Down’s Syndrome is a genetic disease. Ideally there would be ZERO babies born with Down’s Syndrome. And we know it’s a genetic disease because we know something goes wrong in gamete cell division, and know precisely what that something is (trisomy 21). Acknowledging that doesn’t mean treating current victims as pariahs – we can have empathy for people who suffer from Down’s Syndrome while at the same time not wanting to create any more, just like we have empathy for amputees without wanting there to be more. Any argument that says we should encourage more victims of genetic disease is like saying we should encourage more amputees by deliberately cutting arms off.

        Re: undesirables: I fundamentally disagree that the state should have any say in who ‘undesirables’ are, outside punishment for the conviction of crimes. So i also reject your ‘government funded’ line of thought.

        Re:China: China didn’t have a gendered abortion problem until the government said ‘only one kid’. Then cultural factors kicked in to prefer boys over girls. The proper solution to that is two-fold: (1) Don’t have a one child policy, and (2) fix the culture. Keeping the government out of family planning and abortion decisions is a good step in the right direction.

        While the government should not be involved (at all) in abortion decisions regarding fetuses carrying genetic diseases, I highly approve of parents who choose not to inflict such disorders on future children, and think it’s a perfectly valid use of abortions. That some people will use abortion to select for unimportant traits like blue eyes or gender is unfortunate but tolerable in a regime which properly leaves abortion decisions solely up to the parents while providing the maximum amount of information. (The proper solution is to foster a culture with low tribalism, so selecting for such unimportant traits is restricted to a tiny minority). You’re literally arguing parents might make poor choices, so we should deprive them of the information they need to make intelligent choices. (And in fact, there’s no way having information about the fetuses genetic diseases could result in MORE poor choices by the parents).

        1. “Secondly, how can an otherwise legal act combined with constitutionally protected speech become an illegal act? There’s no way that make sense.”

          Blackmail law. It’s legal to reveal ugly facts about someone, but not to offer to refrain for money.

          Prostitution laws present the same question: Sex is legal, charity is legal, but you can’t give people money AND have sex with them?

          The law makes a show of being rational, but it’s only a show.

          1. Still no response on what the state’s legitimate interest is, I see.

            Neither of your examples combine an otherwise legal act with constitutionally protected speech.

            Blackmail/
            While revealing ugly facts about someone is constitutionally protected speech, where’s the otherwise legal act? Extortion isn’t a legal act in any context.

            Prostitution/
            You very much can give people money and have sex with them. (See: single-earner households and marriages). What you can’t do is PAY people specifically to have sex with them. And it’s not charity if you’re paying them for a good or service, which sex definitely qualifies as.

            Further, where’s the constitutionally protected speech act? Paying someone to have sex with you doesn’t involve an otherwise legal act that is MADE ILLEGAL by constitutionally protected speech. You’ve presented this as two otherwise legal actions (charity + sex), which is not an action + constitutionally protected speech.

            Aside: prostitution shouldn’t be a crime in the first place.

            Shall I assume from your inability to formulate anything as constitutionally protected speech + an otherwise legal act that it’s really hard to think of any qualifying example?

            1. “While revealing ugly facts about someone is constitutionally protected speech, where’s the otherwise legal act? Extortion isn’t a legal act in any context.”

              Your being deliberately obtuse isn’t the same as my not having made a point. Blackmail is charging money to refrain from engaging in constitutionally protected speech: I expose to the world that you’re a pedophile, I’m protected. I don’t, I’m protected. I offer to refrain in return for money, I’m a criminal.

              1. Still no otherwise legal act. Just constitutionally protected speech and an otherwise illegal act.

        2. “it’s a fetus, it’s not a child yet. It doesn’t belong to any class deserving protection.”

          Not accurate. The problem (from the would-be future person’s point of view) is that the state’s interest in protecting its rights, is that the state loses the “whose interests come first?” argument until the fetus is capable of surviving outside the uterus that contains it.

          1. It can have no rights if it cannot live outside the uterus. Otherwise the mother is a slave. As such, future people have no legitimate claims to rights.

            (Any injury done to a fetus desired by a soon-to-be mother should be prosecuted as a violation of the MOTHER’s rights, not the fetus’s, since it has no rights).

            1. Go back into left field.

              1. Huh? To the extent that libertarianism has a ‘mainstream’, that’s the mainstream libertarian position on abortion. For example, Rand is no leftist and that’s exactly the line she’d have drawn.

                What prominent libertarian thinkers support your far-right conservative notion that fetuses have rights before viability?

    2. Squirrelold,

      I just wanted to express my appreciation for your very helpful argument. It’s so much better when somebody on the other side actually gives the argument rather than me having to present it as a hypothetical.

      Every time the government is involved in non-curative health care, it increases disease. For example, if the government actually wanted to reduce the cancer rate, the most rational way to do the is would be to shoot cancer patients as soon as they were diagnosed. Same with any other chronic, non-curable disease. Treating them, which simply lets them live longer, has no affect on society other than to simply increase the prevalence of these diseased individuals. As
      you rightly explain it, suffering is increased when we do this. If we want to reduce suffering, we need bullets to do that. It is absolutely the only rational way.

      In order for there to be any possible rational justification for any government intervention into chronic disease other than mobile firing squads, I think we have to accept that reducing society’s net suffering is not society’s only possible rational goal. What might such an alternative goal be? I would suggest that whatever the reason one might have for treating rather than shooting cancer patients, if we are willing to accept that it is rational, than I think we will find that we also have to accept that that same goal is also a rational reason for not aborting fetuses with Down Syndrome.

      1. I often point out that aggressive claims that opposing positions lack rational basis are as likely the result of blindness on the claimant’s part, an inability to see reason in their opponents’ views, as Any defect in the positions themselves.

        John Calvin fiercely argued, and supporters of slavery sincerely believed, that abolition and opposition to slavery could have no explanation other than blind hatred,and was completely irrational in character. No rational thinking person could possibly be an abolitionist. We have to remember this, and remember how to this day zealousness blinds people to seeing that their political opponents might have a point.

        The most zealous, the people least able to see reason in the way others besides themselves think, do not make the best judges.

  8. Man declines to speak with police, retreats from his porch back into the living room, where a Santa Rosa County, Fla. officer follows, tackles, and arrests him. False arrest? District court: Could be failing to talk to the officer was a misdemeanor offense (resisting an officer without violence),

    Eh ? Failing to talk to an officer = resisting an officer without violence = misdemeanour ? You have to talk to the cops ? Isn’t there some bit in the Constitution about this ?

    Asking for a friend.

  9. I would suggest that you take a look at the 1973 United States Supreme Court case of Brown v. Texas. The Court seems to say in that case that the police cannot, absent a basis to suspect that a person is engaged in criminal activity, detain that person for refusing to speak to them and walking away from them.

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