Short Circuit: A Roundup of Recent Federal Court Decisions

The Fight of the Century, Moloch worship, and a mountain of contempt sanctions.

|The Volokh Conspiracy |

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

In 2015, DEA agents raided Miladis Salgado's home based on a bad tip from a confidential informant. The lead agent admitted there is zero evidence linking Ms. Salgado or her money to criminal activity, but for two years the agency refused to return $15k in cash it took from her during the raid, forcing her to hire a lawyer. Then, right before the district court was going to rule for her (we confidently speculate (on account of the aforementioned zero evidence)), the gov't asked the court to dismiss the forfeiture. But Ms. Salgado hasn't been made whole; a third of the cash will go to her attorney, and the Eleventh Circuit has ruled she is not entitled to attorney's fees because the district court dismissed the case without prejudice. This week, IJ asked the Supreme Court to review the case. Click here to read the cert petition.

New on the podcast: dry celling, panhandler speech, and the Washington Supreme Court overrules 100 years' worth of precedent protecting property rights.

  • Private college investigates sex assault allegation, finds for the accuser. Accused: The investigation lacked the "basic fairness" required by Massachusetts contract law because the school didn't allow a quasi-cross-examination. District court: Seems so. No punishing the accused while this litigation proceeds. First Circuit: Reversed. Massachusetts law does not require such an examination, and it is not for federal courts to expand state law.
  • Man dies, leaving his Norton, Mass. house to his daughter—and six figures of debt to state Medicaid program. They work out a plan where the daughter will sell the house to pay off the debt. Yikes! An attorney swoops in and buys the house for $100 to resolve a tax delinquency. The guvvies launch a five-year campaign to get the house back, which is stymied by the attorney's defiance of seven state court orders, four arrest warrants, a mountain of contempt sanctions—and his filing bankruptcy in an attempt to keep them at bay. But that doesn't work, and he appeals. Guvvies: C'mon. The man's a fugitive, so he can't appeal. District Court: Fair enough. First Circuit: Though a frustrating case, the district court dismissed too soon.
  • Thirty-six hours after New Haven, Conn. officials adopt immigrant-friendly municipal ID card program, federal agents descend upon a Hispanic neighborhood in the city as part of "Operation Return to Sender." One of those arrested provides unrebutted testimony indicating he was arrested solely because of his race. Can the feds rely on documents they gathered after the arrest to have him deported? Second Circuit: Nope, it's fruit of the poisonous tree.
  • Highland Park, Mich. firefighter criticizes his colleagues and the fire chief for derelictions of duty, including watching porn and carrying out extramarital affairs at the station, which causes them to miss calls to respond to fires. They, in turn, mock his religiosity, "moralizing directives," and sexual orientation. He's fired for falsifying his time sheets. Sixth Circuit (over a pair of dissents): Could be that violated the First Amendment.
  • In 2015, a boxing match billed as the "Fight of the Century" between Manny Pacquiao and Floyd Mayweather (with tickets going for up to $231k on the secondary market) turns out to be a "yawner." Yikes! Despite assurances from his camp that Pacquiao was in "pristine condition" and that fans would "see the best Manny," he had in fact gotten injured before the fight. Spectators: Fraud! Ninth Circuit: "The district court was … correct to knock out Plaintiffs' complaints."
  • Shortly after the 2012 presidential election, student at New Mexico School of Medicine posts on his personal Facebook page that Democratic voters are (inter alia) "Moloch worshiping assholes." School officials deem the post a violation of the school's "Respectful Campus Policy" and discipline him. A First Amendment violation? Tenth Circuit: Qualified immunity. It is not obvious that "sanctioning a student's off-campus, online speech for the purpose of instilling professional norms is unconstitutional."
  • In a "reverse sting operation," police encourage a target to participate in a fictitious crime and then arrest the target for conspiracy. DEA agents in the Southern District of New York have run 179 such stings over the past 10 years. None of the targets have been white. All but two of the targets have been black or Hispanic. District Court: That doesn't sound like a coincidence. Defendants are entitled to limited discovery about why they were targeted. (Click here for some journalism.)
  • Seattle officials impose ordinance requiring landlords to rent to the first applicant who meets a landlord's announced criteria. A due process violation and a regulatory taking under the state constitution (which provides more protection than its federal counterpart)? The Washington Supreme Court says no: Our state constitution provides the exact amount of protection the federal one does, so no violations here. And here's a list of 50-odd cases (dating back to 1915) saying otherwise that you can no longer rely on.
  • Beaverton, Ore. officer pulls over motorist for failure to signal, obtains consent to search the car. (The search yields contraband.) Oregon Supreme Court (over a dissent): The state constitution forbids officers from prolonging a traffic stop by asking consent to search for contraband that the officer had no reason to believe was in the car and that was unrelated to the original basis for the stop. (via @obarcala)
  • And in en banc news, the Third Circuit will not reconsider its decision barring the FCC from eliminating rules that (1) prohibit a company, if it owns a newspaper, from also owning a TV station or a radio station in the same market and (2) prohibit a company from owning both a TV station and a radio station. The agency insufficiently considered how the changes would affect female- and minority-owned media companies.

After Winston-Salem, N.C. surgeon Gajendra Singh learned that his patients were struggling to afford MRIs and that local providers make it difficult for patients to figure out their out-of-pocket costs upfront, he decided to buy an MRI machine and offer those services for half the going rate. But the state's "certificate of need" law makes that virtually impossible, and last year Dr. Singh sued, arguing the state constitution doesn't allow the legislature to ban medical providers from offering much needed services solely to benefit existing providers. This week, a trial court denied the state's motion to dismiss. Click here to learn more.

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  1. I really wish the First Circuit would stop using Courier typeface and putting two spaces after periods.

    1. Impeachment. That’s the only remedy.

  2. I would just like to point out, that in the Podesta emails, which anybody can find on Wikileaks (number 30489), there is a reference to: “W ith fingers crossed, the old rabbit’s foot out of the box in the attic, I will be sacrificing a chicken in the backyard to Moloch . .”

    So, the fellow isn’t wrong about Democrats, or at least one prominent one, worshiping Moloch.

    That said, Moloch worship involved child sacrifice, not unlike abortion, so you can get the rest of the reference.

    I expect Rev to swoop in any moment and say we should reject superstition and not sacrifice to Moloch.

    1. Would Amselem really be considered prominent?

      1. Prominent enough he had Podesta’s personal email address, which is more prominent than 99% of all the other democrats in the country.

        1. That’s… not what the word “prominent” means.

          1. That’s…not a rebuttal either.

    2. Tells us about the pizza, m_k!

      1. ……Sarc, while pizzagate is a bit of a farce, you might want to do yourself a bit of a favor and do an internet search for the letters “Epstein” and catch up with what the rest of us know.

        1. Your taking Podesta talking about Moloch anything like seriously is pretty out there.

          1. If you took what I wrote as I was being serious, rather than explanatory, what does that say about you?

  3. The first circuit seems to be going out of its way to appear unfair in the Boston College case.

    1. I’m not as sure. I’ve seen horrible abuses in sexual assault claims. The BC case here, actually appears relatively fair by comparison.

  4. That dry cell thing freaked me out

  5. “All but two of the targets have been black or Hispanic”
    What is the usual racial composition of those involved in the drug trade in the NY area?
    I’d like to see how this plays out I seriously doubt anyone will prevail in proving discrimination

    1. I’d like to know why they aren’t challenging it as entrapment.

      1. Because the law enforcement officers involved know how to execute these operations without creating the elements of an entrapment defense.

    2. Predominantly minority. However, not 99% black and hispanic and 1% Asian (guessing).

      This might actually work given how statistically absurd this number is.

  6. Are there really people suing because a boxing match was over-hyped?

    I guess if you’re a big enough idiot to pay $231,000 (really???) for a ticket you’re stupid enough to believe the hype.

    1. Yep. And because the Saints didn’t get into the Super Bowl. And because Maximum Security was disqualified from the Kentucky Derby.

      Really, there’s a cohort of people who think the courts have general appellate jurisdiction over sports events. And there are lawyers who cater to them (perhaps because they are hoping to draw a judge who will find the case “fun” and not dismiss it).

  7. The Washington case is being appealed to scotus. The complaint alleged a takings and a first amendment violation. Pacific legal foundation is counsel. I am not enough of a taking clause scholar to know whether cert is likely or who would prevail. More duiscussion here https://old.reddit.com/r/scotus/comments/dx1vzb/washington_supreme_court_approves_seattle_law/.

  8. “And in en banc news, the Third Circuit will not reconsider its decision barring the FCC from eliminating rules that (1) prohibit a company, if it owns a newspaper, from also owning a TV station or a radio station in the same market and (2) prohibit a company from owning both a TV station and a radio station. The agency insufficiently considered how the changes would affect female- and minority-owned media companies.”

    Can I try to rewrite this to make it more reader-friendly?

    “Trump’s FCC loses, and old restrictions on media ownership remain on the books after an en banc decision by the Third Circuit. The regulations (1) prohibit a company, if it owns a newspaper, from also owning a TV station or a radio station in the same market and (2) prohibit a company from owning both a TV station and a radio station. The FCC tried to abolish these rules, but a panel of the Third Circuit said women, minorities hardest hit and overruled the FCC. The full Third Circuit left the panel decision in place.”

    1. Actually, this case is just the latest in a long series of cases dating back to 2002, all of which are about the same. The FCC seems to have working on this for a long time.

      This is another one of those cases where I can say “Good!” to the outcome, while at the same time asking “What the hell were they thinking?!” for their reason.

      And of course, any ruling that starts with “Here we are again” is gonna be good.

  9. Well, I don’t worship Moloch, but he sure knows how to deliver a rousing speech. Who could argue with this?:

    “My sentence is for open Warr: Of Wiles,
    More unexpert, I boast not: them let those
    Contrive who need, or when they need, not now.
    For while they sit contriving, shall the rest,
    Millions that stand in Arms, and longing wait
    The Signal to ascend, sit lingring here
    Heav’ns fugitives, and for thir dwelling place
    Accept this dark opprobrious Den of shame,
    The Prison of his Tyranny who Reigns
    By our delay? no, let us rather choose
    Arm’d with Hell flames and fury all at once
    O’re Heav’ns high Towrs to force resistless way,
    Turning our Tortures into horrid Arms
    Against the Torturer; when to meet the noise
    Of his Almighty Engin he shall hear
    Infernal Thunder, and for Lightning see
    Black fire and horror shot with equal rage
    Among his Angels; and his Throne it self
    Mixt with Tartarean Sulphur, and strange fire,
    His own invented Torments.”

  10. Does this make people who leave comments Volokh-worshipping assholes?

  11. Regarding the certificate of need issue. A basic problem in health care is that a society has to reserve excess capacity for emergencies and unusual cases and situations. This is difficult to do in a market economy. Those who don’t provide such capacity can always easily undercut the price of those who do. If nothing is done about it, the laws of competition will ensure that society is able to deal only with normal capacity, and is overwhelmed when an emergency occurs. Similarly, providers who avoid providing general care (which must take charity cases) can charge less than those who do.

    Addressing this situation ensures a regulatory approach to ensure that players in the medical economy provide insurance for future contingencies and charge more than immediate needs as a premium to do so.

    The certificate of need system is not the most direct, and may well not be the best way, to do this. Perhaps some sort of insurance system, or supporting through general taxes and welfare, would be better. But it is rationally related to it. And that’s all the Constitution requires.

  12. In the New Mexico Medical school case, it appears the student had completed most of the remedial program but the sanctions hadn’t yet been removed, so injunctive relief would have given him some thing

    Does qualified immunity make as much sense when the only relief sought is injunctive? It’s true it subjects public officials to trials. But perhaps, if we look at the tax/penalty analogy, we could regard this as just having the courts decide what to do. And having courts adjudicate what course of action to take is enough of a normal thing in our society that fear of it would perhaps not so greatly deter public officials.

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