Short Circuit: A Roundup of Recent Federal Court Decisions

E-cigarettes, cyanide, and intergalactic trade monopolies.

|The Volokh Conspiracy |

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

Here at IJ, it's been a big couple of weeks for small victories. This week, a Pennsylvania court denied the state's motion to dismiss our challenge to a law that can prevent people with past criminal records from becoming cosmetologists. And last week, a Virginia court ruled that our challenge to a Charlottesville business license tax on freelance writers that does not apply to the traditional press can go to trial. And a Nevada court refused to dismiss IJ's challenge to a law removing millions of dollars of tax credits for educational scholarships that can be used at private schools.

  • All new tobacco products must receive premarket authorization from the FDA. And if that product is to be advertised as a safer alternative to traditional cigarettes, the authorization process is more extensive (to verify the product is indeed safer). E-cigarette manufacturers: We aren't selling tobacco products; we shouldn't be subject to premarket review at all. And even if we were, it violates the First Amendment to make us go through the more extensive process. D.C. Circuit: E-cigarettes are tobacco products. And there's no First Amendment problem with keeping the public safe from false advertising. [Ed.: Corrected. See here for a more reasonable summary.]
  • Man participates in Washington, D.C. house-flip scheme that bilks banks out of more than $5 mil. He's sentenced to over 24 years. D.C. Circuit (2010): His money laundering conviction can't stand, as the activity was part and parcel of the underlying bank fraud conviction instead of a distinct offense. But no need to resentence because his sentences run concurrently. D.C. Circuit (2019): You know what? We got that wrong. Turns out the money laundering conviction increased his sentence by up to nine years. Resentence him.
  • Man purchases 500 lethal doses of cyanide under false pretenses and offers them for sale on the internet to suicidal people. In all but one case, he sends Epsom salts instead. Judge Selya of the First Circuit: Convictions affirmed for the most part, and here's a vocab quiz: golcondayola, repastinating, repast, exigible, tarry, immurement.
  • To maintain his gov't contracts, owner of Springfield, Mass. towing company pays "street tax" to the Genovese crime family. He loses the contracts and stops paying. Ten years later and under new management, the family seeks to collect arrears and a monthly fee going forward. The owner negotiates, paying some and getting threatened for not paying more. Oh snap! He's been wearing a hidden camera. (Three mobsters take plea deals and a fourth stands trial.) Mobster 4: I went to just one meeting with the owner where I spoke "only meaningless gibberish." First Circuit: Conviction affirmed.
  • Allegations: Following a domestic altercation (that involves both parties hitting the other's car with a baseball bat), New York man drives away, while his girlfriend calls 911. Police claim that the girlfriend told the 911 operator that the man may have drugs on him, a claim the girlfriend strenuously denies. Man is pulled over, a drug dog alerts on his car, and the officer finds what he suspects are "crumbs" of crack cocaine, which field test positive for cocaine. Man is arrested, taken to the station, where a drug dog does not alert to him. He is, nevertheless, subjected to a visual cavity search of his anus. A Fourth Amendment violation? Second Circuit: There was no reason to believe this guy was hiding anything in his keister, and New York's highest court has ruled that you need reasonable suspicion for such a search. No qualified immunity, remanded to resolve factual disputes. Dissent: So now police are expected to follow well-established state constitutional law as well as federal constitutional law? Outrageous!
  • Second Circuit: Hey, remember that opinion we issued recently, where we said that the Fair Housing Act allows claims against landlords for tenant-on-tenant harassment? Well, we thought about it and we're reaching the same conclusion, but our new opinion is narrower. Dissent: It's not narrower, and it's still wrong.
  • After pharmacist stops filling two customers' opioid prescriptions, he gets threatening text messages. Medford, N.J. police invite the pharmacist to the station to discuss. He's there for seven hours (interviewed for four), offered food and water, uses the restroom unaccompanied multiple times, has access to his cell phone, and is never restrained. The conversation yields info that is used to build the case against the extortioners (who plead guilty) and to charge the pharmacist with distributing controlled substances. (Among other things, he filled prescriptions for a customer who came in six days a week, multiple times daily, with prescriptions bearing numerous different names.) But he's never given a Miranda warning. Third Circuit: 15-year sentence affirmed. It was his choice to go to the police, he could've left when he wanted, and his statements were voluntary.
  • In the wake of Russian meddling with the 2016 election, Maryland officials pass a law requiring websites large (The Washington Post) and not so large (the Cecil Whig) to disclose information about political ads they run. Newspapers: The law's compliance costs threaten political speech. Fourth Circuit: Just so. Serious burdens that barely address the problem of foreign interference? That's a free speech no-no. (Click here for some editorializing on the matter.)
  • Friends, last week's edition contained an egregiously misleading summary. We erroneously and unfoundedly asserted that the Fifth Circuit held that a single vehicle on an otherwise empty road can constitute "traffic," and thus a driver pulled over for driving too slowly who was impeding only himself couldn't challenge the stop. In fact, as the magistrate judge's report makes clear, there was a second vehicle that was impeded by the defendant's slow driving, and the Fifth Circuit determined it was not a plain error to regard a single instance of impeding a vehicle as "impeding traffic." The staff regrets the error and has been moping all week.
  • "The plaintiff, a lawyer who styles himself both a monarch and a deity, brought claims on behalf of an Indian tribe alleging that [the state of Louisiana and the United States of America] have, among other misdeeds, monopolized 'intergalactic foreign trade.'" And his claims cannot proceed, says the Fifth Circuit.
  • Four Michigan State University students who were victims of campus sexual assault file suit under Title IX, alleging that the university's response to their allegations left them vulnerable to future sexual harassment. A valid claim? Sixth Circuit (deepening a circuit split): Mere vulnerability isn't enough; a plaintiff must show that the university's inadequate response led to further harassment, and none of the plaintiffs have alleged that.
  • Allegation: Sevier County, Ark. jail officers accidentally pepper spray inmate, then deny him a change of clothes, a shower, and medical attention. District court: No qualified immunity. Eighth Circuit: Yes qualified immunity. The guards gave the inmate access to a sink, a towel, and soap, and their failure to give any other care was not (or at least not "clearly") deliberately indifferent to his medical needs.
  • Activist wants to use a megaphone outside Six Flags to complain about how animals are treated there. Vallejo, Calif. officials: Megaphones are noisy, so you need a permit first. The Ninth Circuit (over a dissent): Not so. Silencing a speaker because he might be loud outside an already-noisy theme park? That's a free speech no-no.
  • U.S. Congresswoman's staffer solicits $5k bribe from Compton, Calif. medical marijuana dispensary in exchange for preventing the business from being shut down by the city. Shortly after payment is made, the dispensary is shut down. Ninth Circuit: The staffer's conviction is affirmed. "It is immaterial whether the bribe recipient ever intended to follow through with his end of the bargain, so long as he agreed to perform the official act." (A separate unpublished order is here.)
  • In 2015, an explosion at a Torrance, Calif. oil refinery injures four workers, sends a 40-ton piece of debris flying. Great Scott! The debris lands just five feet from a tank containing modified hydrofluoric acid, a highly corrosive liquid. The feds investigate, and ExxonMobil complies for the most part. But the company challenges subpoenas seeking information on what might have transpired had the debris pierced the tank. Ninth Circuit: And that information is indeed relevant to the investigation.
  • Los Angeles officials enact ordinance requiring all prospective city contractors to disclose contracts with or sponsorship of the National Rifle Association. A violation of the NRA's and a would-be contractor's speech and association rights? District court: Indeed so. The text, legislative history, and comments the ordinance's sponsor made on Twitter "evince a strong intent to suppress the speech of the NRA," and its clear purpose "is to undermine the NRA's explicitly political speech." That's a First Amendment no-no.
  • Apparently worried that people commonly confuse veggie burgers and vegan ham roasts with products containing animal products, Arkansas officials enact law prohibiting companies from using words historically used for specific meat products. So even if the packaging clearly indicates the product does not come from animals, they may not use words like "meat," "chorizo," or "roast." Tofurky: No one is confused—people buy these products because they don't come from animals. District court: No enforcing the law while litigation proceeds. (Ed.: IJ successfully sued Mississippi this year over a similar law.)

Earlier this year, Arizona officials threatened to shut down Greg Mills' engineering consulting firm where he builds electronic circuits for small businesses and startups. Greg has 30 years of experience in the industry, and throughout his career he has designed circuits for everything from flashlights to satellites. But Arizona says he can't call himself an engineer and he can't build circuits without first obtaining an engineering license. Which is ridiculous. The vast majority of engineers around the country are unlicensed. Those who are licensed typically work on bridges, dams, and building construction—things Greg does not do. The requirement does not protect public health and safety, but it does prevent Greg from earning an honest living while also making it harder for small, innovative businesses to hire engineers like Greg as needed. This week, Greg and IJ sued in Arizona state court, arguing that, among other things, the licensing requirement violates Arizona's constitution because a single agency makes the rules, enforces them, and adjudicates violations. Click here to learn more.

NEXT: Have Yourself a Nasty Little Christmas with Into the Dark

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  1. E-cigarettes are tobacco products.

    Every once in a while, I have to wonder if I live in the same reality as these people. I had to read the ruling (and look up the cited laws) to see if they weren’t talking about the vape juice, but did, in fact, mean the little battery powered electronic device with a heating element.

    I think they really did mean it. Batteries and heating elements are tobacco products.

    1. People aren’t buying them to smoke hams.

      1. The device, as manufactured and sold, contains no tobacco, nicotine, or any other drug.

        It’s no more a tobacco product than a pipe, a piece of paper, or a lighter – even though all three of those are used to smoke tobacco.

          1. Yeah, the law allows them to do so.

            It’s absurd. I do not understand how any rational people (if describing Congress that way is allowed) would write the law that way – “deeming” something to be true, when it obviously isn’t.

            1. Should tomatoes be taxed as a vegetable, or taxed as a fruit?

              1. I would think the modal opinion on a Libertarian website to that question would be “no, they should not be taxed.”

                1. When you don’t follow the givens of the hypothetical, you destroy the possibility of learning from it. Doesn’t really matter if you’re doing it for ideological reasons, or because you just didn’t understand the question.

              2. Since you can cut a large tomato to have the shape of a burger, tomatoes should be taxed as a meat product – and the animals it doesn’t come from can’t have hormones used in their non-existence – which the companies will have to prove by testing.

                That’s the FDAs logic. Because it can be used as an alternative to something that it’s not, then it’s really that other thing too.

                1. I meant OUTSIDE of Arkansas.

    2. They’re saying any tobacco “accessory” is a tobacco product. See:

      https://www.fda.gov/tobacco-products/about-center-tobacco-products-ctp/commonly-asked-questions-about-center-tobacco-products#7a

      They do say that a sealed, disposable vaping product with synthetic nicotine or no nicotine (presumably meaning not easily refillable with tobacco-derived nicotine) “might” not be subject to regulation but they haven’t decided yet.

      1. Yeah, that’s what I got from reading through 21 U.S.C. § 387a(b) and its references.

        It’s still absurd.

        1. That’s the part where the inconsistency is idiotic.

          Is a vaping tool for whatever substance the user chooses, and thus the regulations caused by idiots using THC liquid not designed for vaping pens are cognizable?

          Or is It a tobacco product, to which hackers have to disassemble it to hack it to use for THC, in which case this ruling isn’t cognizable?

          I know the government likes it have it all ways, but they should really be required to maintain consistency, even while allowing them to change their mind. Pick one regulation and that’s it, and if you change your mind in a few years explain that too.

  2. Great Scott! The debris lands just five feet from a tank containing modified hydrofluoric acid…

    Ladies and Gents there’s a saying regarding that substance in the chemical/chemistry fields: “DON’T F WITH HF.” What might have happened if the tank busted? I was once told that if you are considering using it for anything, ask yourself if you want to have anymore kids first. Both Icky and Kaka.

    1. Aside from toxicity issues, from what I’ve read, that stuff gets close in terms of corrosiveness to the “molecular acid” in the blood of the xenomorphs from the Aliens movies.

      1. Worse – it’ll also go airborne.

        Lots of the fluorines are scary as hell, especially diflouramine, or N2F4 (derived from diflouramine) which is best described as having “interesting” reactions with almost everything.

    2. Similar to my former employer’s experience with isocyanates. We were pursuing a project to mass produce 3d profile urethane feet for appliances, I’d cracked the problem of getting our adhesive to stick, we had the machine to manufacture them mostly designed, and then the owner of the company did some deep reading on the topic, and said, “Cancel it. We do not want to mess with this stuff!”.

      1. That’s me and all of the flourines – I don’t want to misremember which are the scary ones and have my face melt off like the end of Raiders of the Lost Ark…. and have the same happen to everyone on my block.

    3. What I don’t get about this case is how where the debris landed is relevant.

      The Board is investigation the explosion, and its cause. Now, while I agree that there are safety implications of having HF stored near a high-energy device like a cracking reactor, that seems like a problem for setting future regulations, not investigating an existing accident.
      The Court in this case is explicitly saying that the Board’s concerns about potential accidental releases is the same as an actually existing accidental release!

      I mean, in what way will knowing the vendors or retail dates of the HF help the Board learn why and how the cracking reactor exploded? Oh, sorry, according to this Court, the “facts, circumstances, and conditions” that the Board can investigate do not have to have anything to do with the “accidental release” that they are allowed to investigate.
      It’s just another judge pushing No Restriction Government Investigations again. Unrestricted Subpoena Power for everyone!

      Except the public, of course.

  3. It is immaterial whether the bribe recipient ever intended to follow through with his end of the bargain, so long as he agreed to perform the official act.”

    I feel like somebody is subtweeting the entire GOP right now.

    1. That’s the part I don’t understand about the defense though – if it’s not bribery because they never intended to deliver their side of the bargain then it’s conversion or theft by fraud. I’m not sure those are really better.

      1. The defendant was already screwed, it was just one of those long shot arguments you make because, it can’t backfire, and maybe you’ll luck out.

  4. Give the Atakapa Indian de Creole Nation trustee at least some credit, he did manage to use the correct spelling for Thomson Reuters (no ‘p’) consistently, whereas the Fifth Circuit included an extraneous ‘p’. I’ve seen it happen too many times. Tragic indeed!

  5. The staff regrets the error and has been moping all week.

    Pics or it didn’t happen.

  6. “Megaphones are noisy, so you need a permit first. The Ninth Circuit (over a dissent): Not so.”

    It should certainly require a permit, and liability insurance, to use a megaphone at higher than 85 decibels. Being subjected to sound above that level can be painful, and can cause permanent hearing loss.

    1. Maybe read the document? That might help you understand what’s going on.

  7. It is unlawful to chase jeopardized species without a license, yet hostage reproduced Scimitar-Horned Oryxes and two other eland species have been reasonable game since somebody in Congress slipped a one-sentence arrangement into a 1,500-page appointments charge that absolves them from the typical allowing process. https://startjobs.pk/

    1. Looks like I’ll have to recalibrate my spam detector.

      1. Yeah, that read like a legitimate comment on Reason and I was trying to figure out which case it was referring to until I noticed the link destination.

  8. To maintain his gov’t contracts, owner of Springfield, Mass. towing company pays “street tax” to the Genovese crime family. He loses the contracts and stops paying. Ten years later and under new management, the family seeks to collect arrears and a monthly fee going forward. The owner negotiates, paying some and getting threatened for not paying more. Oh snap! He’s been wearing a hidden camera. (Three mobsters take plea deals and a fourth stands trial.) Mobster 4: I went to just one meeting with the owner where I spoke “only meaningless gibberish.” First Circuit: Conviction affirmed.

    No comment on this case, except to say that I feel we need more mob cases here at Short Circuit.

    1. was it a good read?

  9. One supposes the lack of large seas sea-worthiness of the craft is part of the statement of character. Also: You Only Live Always, if metaphysics of a weird sort is your thing, though that of intellectual curiosity does seem to be lacking in the judiciary. Not a statement of inferiority/superiority, but fact.

  10. When I was younger I got chuckles out of the insane pleadings filed by lawyers or pro se parties, but I grew out of it. Those people clearly need help and we don’t really benefit in any way by making fun of what they do. At the very least, that kind of punching down isn’t what I want to see from Short Circuit.

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