Short Circuit: A Roundup of Recent Federal Court Decisions

Football prayers, Peanut M&Ms, and illegal palmetto berry harvesting.

|The Volokh Conspiracy |

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

New on the Bound By Oath podcast: Substantive due process, the constitutional requirement that when the government wants to deprive someone of life, liberty, or property, it has to have a good reason. Featuring Professors Erwin Chemerinsky, Randy Barnett, and Victoria Nourse. Click here for Apple Podcasts.

  • New York man is sentenced to three years in prison on a state marijuana charge, to run concurrently with a yet-to-be-determined federal sentence on gun charges (which ends up being 10 years). Thanks to the vagaries of New York sentencing law, this confuses the hell out of everyone, and the prisoner ends up being detained in state prison for four additional months after serving his federal sentence, before things are finally straightened out. A due process violation? Second Circuit: Yes. When prison officials suspect an error like this, they need to inform the prisoner, the sentencing judge, and the lawyers. But that wasn't clearly established, so qualified immunity.
  • Pennsylvania inmate eats Peanut M&M offered to him in visiting room (purchased from a vending machine in the visiting room). Guards suspect he swallowed a baggie of drugs. He is taken to a special cell, and his excretions are monitored for four days. An X-ray is taken. No drugs. Nevertheless, officials keep him there for five more days. For all nine days, the room is constantly illuminated, and there is no water, TP, or soap. The inmate is generally handcuffed to a bed, so he can't stand. Third Circuit: He can sue over the length of the confinement. Dissent: Too right. But he should also be able to sue over being forced to lie in his own filth.
  • Woman calls 911 when her ex-husband (who had repeatedly attacked and threatened to kill her) breaks into her Dallas home. For 17 minutes, she screams for help on the phone. But police take nearly an hour to arrive, after making a pitstop at a convenience store. When they do show up, they knock, but there's no answer, so they leave. Her family finds her body two days later. Fifth Circuit: No constitutional violations here.
  • Texas refuses to let man have a Buddhist spiritual adviser in the execution chamber (he could have a Christian or Muslim adviser with him). Supreme Court: Can't do that. Texas: Fine. No more spiritual advisers of any religion in the chamber. Inmates may meet with independent spiritual advisers until 4:00 p.m., talk with them by phone until 5:00 p.m., and meet with Texas-employed spiritual advisers until they enter the chamber at 6:00 p.m. Inmate: But Texas employs only Christian and Muslim spiritual advisers, so I'm still treated differently. Fifth Circuit: Can't do that. Dissent: We're only talking about an hour here.
  • Texans who move to a new home can update their driver's licenses by either submitting a paper application or applying online. Those who apply on paper can have their voter registration automatically updated. Those who apply online, however, have to mail in their updated voter registration. Can three people, who applied online but discovered when it came time to vote that they were not registered, sue? Fifth Circuit: They've since registered and haven't suggested they'll move again, so they lack standing. Concurrence: Being deprived of the right to vote is a big deal.
  • Man buys heroin, overdoses, dies. A Kalamazoo, Mich. dealer is convicted of multiple counts, including selling heroin resulting in death, which brings with it a mandatory life-without-parole sentence. Dealer: I got set up! Sixth Circuit: The "sentence is severe, and perhaps even misguided as a matter of criminal-justice policy." But sentence affirmed.
  • Ohio state trooper, who is black, repeatedly sexually harasses women while on duty, gets fired. He sues, alleging racial discrimination, citing the behavior of a white trooper who was not dismissed. Sixth Circuit (over a dissent): "Morris Johnson and David Johnson are both troopers who acted inappropriately. And they happen to share the same last name. But the similarities end there."
  • Tennessee parents of a child with autism remove him from public school and place him in a private therapy program, where he starts to improve. They are convicted of truancy. They enroll their child in a state-approved private school, but they are worried it won't be a good fit and want the option to remove him from the school in the future. So they file a lawsuit and seek a preliminary injunction, which the district court denies. Sixth Circuit: And it was correct to do so. Even if the parents are right on the law, they haven't shown imminent injury.
  • There's bad lawyering, and then there's lawyering so bad that it triggers two different types of sanctions. So it is in this Seventh Circuit employment discrimination appeal, in which the arguments in appellant's "monstrosity of an appellate brief" are deemed so "frivolous" and "incoherent" as to trigger a show-cause order under both Federal Rules of Appellate Procedure 28 and 38.
  • Grant, Okla. school superintendent conspires with his secretary to commit bank fraud and embezzlement. Yikes! The secretary commits suicide, leaving note that claims sole responsibility for the crimes. Double yikes! At superintendent's trial, district court excludes the exculpatory letter. Triple yikes? No, affirms the Tenth Circuit. The trial court reasonably concluded that the note was inadmissible hearsay.
  • Octogenarian with Alzheimer's and dementia is out for a walk near his home when police approach him and begin asking him questions. Confused by the encounter, he attempts to walk away, at which point police tackle him, handcuff him, and arrest him. He's held in custody for 11 hours until he signs a form that he can't understand and that Larimer County, Colo. jail officials will not permit his wife to effectively explain to him. Did the jail officials violate the Americans with Disabilities Act? Tenth Circuit (unsigned, nonprecedential opinion): No reasonable jury could so conclude. Dissent (signed and published): "If law enforcement officers propose to arrest Alzheimer's patients for the simple act of walking around the block, then jail personnel had best be prepared to accommodate the disabilities of those patients when clearly advised of the patients' condition." (The man's claims against the police are settled for $113k.)
  • Salt Lake City, Utah man suspected of terrorist activity is subject to advanced screenings at the airport: no checking in online (a federal officer must OK his boarding pass), prolonged questioning and searches at the checkpoint, and then another search at the gate. Which does not substantially interfere with the man's right to travel, says the Tenth Circuit, so his due process claims were rightly dismissed.
  • In 2015, two private Christian high schools who are to face off against one another on the gridiron ask Florida state athletics officials if they can conduct a joint prayer over the loudspeaker before kickoff. Officials decline, citing the principle of the separation of church and state. A First Amendment violation? Could be, says the Eleventh Circuit; the free speech and free exercise claims can proceed to discovery.
  • Georgia game warden accosts man resting in a truck, follows him, handcuffs him, and then releases him. Man sues. Game warden: I had probable cause to stop him because he had a sleeping bag in the bed of his truck, which looked like the type of bags used by "illegal palmetto berry harvesters." District court: The "observance of an unfurled, flattened sleeping bag in the bed of a parked truck in a public park in the middle of the day is not a particularized and objective basis establishing reasonable suspicion of criminal activity—no matter what berry-picking season it is." Eleventh Circuit: Just so.
  • And in en banc news, the D.C. Circuit will not reconsider its decision refusing to block congressional subpoenas of President Trump's business records. Dissent: "If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary."

Washington state has a work-study financial aid program that pays a portion of low- and middle-income college students' wages when they obtain work—often related to their course of study. Participating employers include businesses large and small, nonprofits, and municipalities. But students working for religious employers were barred from the program—until this week. In response to an IJ lawsuit, state officials adopted new regulations removing the prohibition. Click here for more.

NEXT: Brooklyn School Integration Is Totally Working! (Except for Some Non-Compliant Families, but They Probably Hate Diversity)

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  1. Texas refuses to let man have a Buddhist spiritual adviser in the execution chamber (he could have a Christian or Muslim adviser with him). Supreme Court: Can’t do that. Texas: Fine. No more spiritual advisers of any religion in the chamber. Inmates may meet with independent spiritual advisers until 4:00 p.m., talk with them by phone until 5:00 p.m., and meet with Texas-employed spiritual advisers until they enter the chamber at 6:00 p.m. Inmate: But Texas employs only Christian and Muslim spiritual advisers, so I’m still treated differently. Fifth Circuit: Can’t do that. Dissent: We’re only talking about an hour here.

    The extent to which Texas is playing to the Christian right in this case is disgusting.

    Make a decision as to when someone gets to have a spiritual advisor. I get it- security can be a justification for keeping them out of the actual chamber. But make that decision, whatever it is.

    But once you make it, that’s it. Enforce it consistently. The government doesn’t get to decide whose religion is right and whose religion isn’t.

    Obviously there’s plenty of Texas voters who would love to have a policy where Christians get the last chance to “save the condemned man’s soul” but “infidels” get excluded. But that’s not a legitimate exercise of government power.

    1. “The extent to which Texas is playing to the Christian right in this case is disgusting.”

      They’re “playing to the Christian right” because their chaplains happen to all be Christian or Muslim?

      It sounds like there are some genuinely tricky issues here, involving Texas’s ability to force, or prevent, chaplains from praying with inmates if they choose.

      1. I don’t think it’s that hard at all. At any particular time, you either allow a religious minister in, or you don’t. At no point do you allow some in but not others, depending on the religion.

    2. Texas bending over backwards to placate muslims again

      1. Why does the State of Texas employ any spiritual advisors for prisoners?

        1. To spy on the prisoners?

    3. A practical question, must the state of Texas provide a spiritual adviser of every prisoner’s religion?

      1. A fair question, and I don’t know the answer. I presume (okay, hope) that the answer is, “Yes, it must, if it plans on killing that prisoner, specifically for the date of execution.” (Given the extended period it takes to kill someone, any prison will have more than enough time to find a spiritual advisor for that execution date.)

        I’m guessing that this will be subject to some minimal level of credibility. I am a Pastafarian, and I suspect that my own request for religious accommodation would not be treated favorably by the prison warden or by any reviewing courts.

        1. “Yes, it must, if it plans on killing that prisoner”

          Why?

          1. And why restrict it to just when killing a prisoner?

            1. Because of the final destination of their immortal soul.

      2. No. They can provide none at all if they want to, and just allow the prisoners to choose their own. And then they can impose restrictions on when the advisor has access to protect security.

        What they can’t say is if you are a Christian (or a Muslim), you get preferential treatment.

        1. I’m not sure they are, if the chaplains in the Texas system are like those in the military (factual question to which I don’t know the answer).

          It was great fun having a Southern Baptist (or a Catholic) lead our prayers for Odin to guide our rifles, and to keep his Valkyrie away from our units that day. Even funnier when I pointed out after the fact that the Odin legends are largely cribbed from either the stories about Jesus or Gilgamesh (who also inspired both Noah and Moses).

          Let’s see who Odin is:
          Sees all
          Creates humanity
          Made of sacrifice of himself to himself
          Hung upside down from a tree for nine days
          Plucked out an eye to gain knowledge
          Invented writing
          Resurrects the dead
          If you live a good life you get to live again with him when you die
          Watches over your in battle
          Sends “angels” to help

          The parallels are hilarious, once you see them the first time.

    4. Wow…talk about over-reading.

      The real issue here is, there’s a regulation in place that only prison personnel are allowed in the same room as the execution, or to be with the death row sentencee right before death. This is a clear security provision which makes sense. You don’t want someone strange in the room at such a crucial moment.

      The Prison system employees a number of spiritual advisors, of varying religions. Some of the Christian sects, some of the Muslim sects, and depending which court summary you look at, also some Native American sects and some Jewish sects. I wouldn’t say there’s bias. But there are a LOT of religions and religious sects, and you can’t employ them all. And in this particular case, they don’t have a Buddist on staff. But they may also not have a Mormon on staff, or a Maronite, or a Jain. And if you make a special case to bring in a non-staff outside Buddist, you would have to do the same for the Mormon, or Maronite, or Jain, or Jedi. Which brings back the entire security risk issue.

      You can extend this. Perhaps you think your marriage license MUST be given to you by someone who follows your religion? I mean Christians regularly get their marriage licenses from Christian officers of the peace and marriage clerks. Why should they be special? Shouldn’t a Jedi be able to get his marriage license from a Jedi marriage clerk? And is his or her inability to do so religious discrimination?

      1. And if you’re getting your gay marriage license, must you be able to get it from a gay clerk?

        1. Gay isn’t a religion. Yet.

          1. It takes a lot of faith and no facts to buy what they are preaching these days.

      2. If only the state knew the execution date at least a few weeks in advance so they had time to vett the choice of spiritual advisor beforehand, instead of conviction followed by execution in mere days.

        These things are so fast.

        1. Exactly.

          And the result is discrimination against minority religions, which is popular in the Bible Belt (especially in this context).

          1. And you can tell this, again, because one of the existing options is “Muslim”

        2. Again, you miss the point. Those allowed in the chamber are prison employees. A few weeks doesn’t make a difference there to people who are employed by the institution.

          (Also, FWIW, the original challenge to this was just a day or three before the execution).

      3. But you don’t need an employee.

        You just need someone who has been vetted as needed for security.

        Then you treat all prisoners the same, regardless of their religion.

        It’s really not hard at all, and why we have court cases and snarky arguments about it is a mystery to me.

        1. All prisoners are treated the same. They all get a prison-employed spiritual advisor, if they so desire, to be in the chamber with them.

        2. Prior to the chamber that would be correct. Although the gov’t would need enough notice as to the proposed spiritual advisor.

          However, only prison personnel are authorized in the chamber itself because the government shall maintain positive control over all personnel involved in an execution (you can thank the lawyers and courts for that requirement.)

      4. This argument is a little like saying that a prison that gives a diabetic an asperin has done its duty. After all, they’re all drugs, right? One drug is just as good as any other, right? It’s not like a prisoner is entitled to ask for drug specifically suited to his needs, he needs to accept one of the ones in stock.

        1. I mean, there are LOTS of drugs, and you can’t stock them all…

    5. I suspect the answer is that its simply easier to have advisors for a couple of the more popular religions rather than an advisor for every religion on earth.

      The most straightforward thing is to not have any spiritual advisors at all which is sort of a dick move ruining things for everybody else because you can’t have yours but I guess progs would be happy with this.

      1. The most straightforward thing is to not have any spiritual advisors at all

        Government may not be in the business of religion, but they aren’t in the business of hurting religion, either, especially the nominal point of religion: saving one’s soul. I can’t conceive of a greater interference in the free exercise of it than to deny someone this aspect right at the end.

        1. Well they can certainly impair it as necessary for security. But they have to treat religions equally in doing so.

    6. Yup, Texas is famous it’s support for Christians and Muslims.
      /s

      Of course, if you’re the sort of person that categorizes people as “Christians” or “Muslims” on the topic of spiritual advice, throwing together Catholics and Mormons, Shia and Bahai, then you are ignorant enough that maybe you shouldn’t speak on the topic at all.

      1. Maybe just call them “monotheist” spiritual advisors, and then everything is fine.

      2. Catholics and Mormons will both hold some spiritual commonality with a blessing in Jesus’ name. A Buddhist won’t.

        1. You’re literally incapable of reading “Muslim” in the context of “something Texas allows”, and swap it with “Mormon”?

        2. Now see that’s religiously biased. A broad “spiritual commonality” clause? “This group of religions is close enough to all share one, but that one isn’t”?

          That gets into all sorts of problems.

  2. Predictably, Trump’s boy Katsas and girl Rao followed their orders and were two of the three dissenters from the denial of rehearing at the DC Circuit. One has to wonder who is blackmailing Judge Henderson though.

    1. So you have a cogent critique of the dissenters’ reasoning or just Organge Man judge bad

      1. No need for me to go into what the panel already covered.

    2. Apparently Justice Roberts is the only person in America who can’t see how partisan our judges are.

      If even anonymous internet nobodies can, why can’t he?

  3. “And in en banc news, the D.C. Circuit will not reconsider its decision refusing to block congressional subpoenas of President Trump’s business records.”

    OK, let me see if I can interpret that.

    Congress subpoenas someone.

    D. C. Circuit panel refuses to block subpoena.

    Full circuit also leaves subpoena in place, refusing to review panel decision.

    Subpoena survives.

    1. We haven’t seen Act V yet.

  4. And in en banc news, the D.C. Circuit will not reconsider its decision refusing to block congressional subpoenas of President Trump’s business records. Dissent: “If the competing opinions here demonstrate anything, it is that this case presents exceptionally important questions regarding the separation of powers among Congress, the Executive Branch, and the Judiciary.”

    The powerful are not supposed to be able to use the government’s power of investigation to search through an opponent’s papers at will to find something to harm them with.

    Let’s read the decision to see if Congress is investigating a crime or is using a facade argument to filch at will.

    Oh my god, 134 pages!

    “According to the Committee, the documents will inform its investigation into whether Congress should amend or supplement current ethics-in-government laws.”

    Whew! Didn’t have to get past the second sentence.

    1. Whew! When they don’t define ethics, much less state by what standard, looter altruism is the default position one can safely ignore.

    2. With reasoning like that, Congress can subpoena anything from anyone at any time, such as the campaign records of the minority’s candidates, because they might someday be relevant to something that Congress may do.

      I can’t wait to see this used with care and delicacy by up totally trustworthy members of the US Congress – of both parties.

  5. I wonder if anyone here will pick up that PP case where the judge ordered the jury to find the defendants guilty of trespassing because he concluded they were guilty?

    1. I have no idea what case you’re talking about, but I am extremely confident that your description is not accurate.

      Prove me wrong.

      1. “I have already determined that these defendants trespassed at each of these locations. Because I determined that these defendants trespassed, the law assumes that Planned Parenthood has been harmed and is entitled to an award of nominal damages such as one dollar for each trespass,” he told the jury as the trial comes to a conclusion.

        https://www.dailywire.com/news/judge-in-planned-parenthood-trial-orders-guilty-verdict-against-journalist

        1. Disingenuous though that article is, it makes it clear that this is a civil lawsuit, not a criminal prosecution. For that reason, the jury was not “ordered … to find the defendants guilty” of anything. Rather, the jury was instructed (as is routine in civil cases) that liability had been established, and that their role was to determine damages.

          In other words, I was right.

          1. You’re right, I misunderstood and missed this distinction and was ignorant of its impact.

            The judge is still a piece of garbage for his conflicts.

            1. What conflicts?

              1. He has strong ties to Planned Parenthood, and his wife famously posted online that the defendants were “domestic terrorists”.

                1. Maybe this judge is a huge fan of Justice Thomas, to the point of emulation?

                  1. Has Mrs. Thomas ever publicly commented on a case that was before her husband?

                    I mean I get it, Kagan didn’t recuse herself from Ogberfell and she’s gay and officiated a gay wedding. Judges these days are partisans before adjudicators, but what this hack in black did was too much.

              2. And the fact that he has decided that these undercover journalists were trespassing and that was the violation.

                That’s a big blow to undercover journalists.

                1. Aren’t those kinds of things the result of stuff like conservatives trying to ban reporters from lying to gain access to companies to film them doing gross stuff?

                  People should make up, hehe, their minds hahaha and be consistennnnnhahahahahahaha.

                  1. Really? Which laws, especially Californian laws, were passed by conservatives trying to prevent journalism / exposés?

          2. It was also a jury verdict.

            Find better sources, Sam.

      2. And this part:

        “The judge said the jury must accept his rulings and only decide if Planned Parenthood suffered damage from the trespass and what damages they should be awarded.”

  6. “Double yikes! At superintendent’s trial, district court excludes the exculpatory letter.”

    Wow. Those facts would make a great script for a TV lawyer show. How will the hero/heroine lawyer out think the judge to get it before the jury?

    1. Meh. Trying to protect your beloved (I assume they were a couple given the circumstances) is a classic trope

  7. The Kalamazoo case is reminiscent of the Wesley Livsey Jones March 1929 “Increased Penalties Act” or Jones 5&10 law “intended” to apply to kingpin beer barons. It in fact sent paupers to the chain gang indebted for life when it came down to cases during the Hoover Administration. But I’m sure their motives were altruistic.

  8. Woman calls 911 when her ex-husband (who had repeatedly attacked and threatened to kill her) breaks into her Dallas home. For 17 minutes, she screams for help on the phone. But police take nearly an hour to arrive, after making a pitstop at a convenience store. When they do show up, they knock, but there’s no answer, so they leave. Her family finds her body two days later. Fifth Circuit: No constitutional violations here.

    Because when seconds counts, the police are only an hour of stopping at a convenience store loading up on donuts away, if they deign to help at all.

    1. If you read the full case, it really sounds as if it was the 911 dispatcher’s error. Rather than put it into the system as “violent assault in progress” or something else which would have gotten an immediate response, it was put in as “domestic disturbance (urgent)”, and the dispatcher never followed up. Rather than order the nearest cops to the scene, it was a “who wants to volunteer for this one?”. In such a case, the urgency is less.

      This was a breakdown in the system, not a failure on the responding units end. There were severe reprimands for the employees in the 911 call call center. But the cops did their job, as according to the urgency level that they were informed about.

      1. Also – and this is one of MANY reasons I think women should depend on firearms instead of the police – the Supreme Court has long ruled that the police do not have a specific duty to protect the individual. Put bluntly; there will be times when it is impossible for the police to cover all the violent crime ongoing, therefore the individual who was not rescued may not sue the police or the jurisdiction for failure to protect.

        And that is obviously right. Which, to my mind, kills (or should kill) all forms of gun control intended to keep guns out of the hands of the law-abiding dead on arrival

        1. Recall also larger scale incidents like the LA riots a few decades ago where the police deliberately abandoned certain sections, leaving the people there to fend for themselves.

    2. The police have no responsibility to protect you as an individual, only society as a whole (per Warren v. District of Columbia). So unless you’re society as a whole, good luck calling 911.

  9. Lots of bad government this week. Same as most other weeks.

  10. Texans who move to a new home […] who apply online [to update their driver’s licence, however, have to mail in their updated voter registration. […]
    Concurrence: Being deprived of the right to vote is a big deal.

    They were not “deprived of the right to vote”. They failed to register to vote. This might be a good argument if the online system never said that the voter registration had to be done separately – but the system explicitly states otherwise, and provides a directly link to all the necessary documents.

    1. Don’t you know it’s a voting rights violation to not make voting however easy it has to be to maximize Democratic turnout?

      That’s what is going on here: Both Democrats and Republicans agree that a large part of the Democratic party’s voting base is really lazy about voting. So Democrats’ top priority is making voting as easy as humanly possible, including removing all possible barriers to people voting who aren’t actually legally entitled to vote.

      You know, on account of not being citizens, or living someplace else, or being metabolically challenged?

      On the other side the Republicans tend to view voting as something that should be a bit difficult, in order to discourage the apathetic. And, yes, sometimes they go overboard on that, but not any more than the Democrats do in the opposite direction.

      1. “Both Democrats and Republicans agree that a large part of the Democratic party’s voting base is really lazy about voting. ”

        Strike “about voting” and the statement is still true.

    2. At worst it was an oversight. Poor design is not a constitutional violation.

  11. Woman calls 911 when her ex-husband (who had repeatedly attacked and threatened to kill her) breaks into her Dallas home. For 17 minutes, she screams for help on the phone. But police take nearly an hour to arrive, after making a pitstop at a convenience store. When they do show up, they knock, but there’s no answer, so they leave.

    One of the most important cases was Gonzalez v Castle Rock where it was established that the police do not have to protect you. So if you feel threatened, weapon up, kill attacker and sort out the bodies later.

  12. I see that the decision about the sexual harassing cop claiming racial discrimination has an idiotic dissent.

  13. Under the dissent in the 6th circuit police disciplinary case, any police disciplinary action would result in an almost automatic discrimination case, as one could almost always find someone of a different race who was disciplined less.

    In the case, Morris Johnson had directly used his uniform and gun coercively, physically intrusively, pulling a woman off the road without probable cause just to ask her for a date, and barging himself into another woman’s home just to chat her up. The other Johnson had sent Facebook friend requests in his spare time.

    If you need a jury and hundreds of thousands of dollars in legal fees to see that the level of physical coercion and intrusiveness in the two cases is vastly different, the legal system has a big problem.

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