Short Circuit: A Roundup of Recent Federal Court Decisions

Census undercounts, jury nullification, and a judicial change of heart.

|The Volokh Conspiracy |

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

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  • Between 2004 and 2013, Massachusetts drug lab chemist became heavily addicted to basically everything under the sun, stealing laboratory standard samples and evidence submitted for testing, and using drugs at work on a daily basis. After this came to light, more than 11,000 convictions based on her testing were dismissed. Allegation: I'm one of those guys, and this never would have happened if her supervisor had done his job, like following up when he discovered that tons of standard samples were missing. First Circuit: Qualified immunity.
  • Jury nullification—in which jurors vote against convicting a criminal defendant if they deem the law in question unjust—predates the Battle of Runnymede (see page 13), is perfectly legal, and is a thorn in the side of prosecutors. But, per the Second Circuit, courts may not encourage nullification, which means a defendant may not argue for it. This despite an amicus from the district court judge who allowed it below.
  • Perhaps you've listened to last week's three-minute oral argument (regarding the constitutionality of sponsor requirements for bar applicants) that culminated in an attorney being escorted out by security. Well, the Second Circuit quickly turned around its decision, and the attorney did not prevail. (The district court's decision is a bit more thorough.)
  • Immigrant renounces gang life in prison, says he will face torture, murder if he's deported back to El Salvador. Immigration court: Too bad. You committed an aggravated felony. Third Circuit: Point of fact, he did not. More egregiously, though, the immigration court ignored precedent and applied incorrect standards. Judge McKee (concurring, with the rest of the panel): Indeed, the court was more focused on ensuring he is deported rather than acting "as the neutral and fair tribunal it is expected to be."
  • Allegation: The methods and means that will be used to conduct the 2020 census will lead to the undercounting of minorities, which violates the Enumeration Clause. District Court: You cannot know that till after the census, so this is not a ripe claim. Fourth Circuit: The methods and means are part of the final "Operation Plan" of the Census Bureau and delayed adjudication will harm the plaintiffs, so their claim is ripe.
  • Fifth Circuit: When is a tax not a tax? When—like the ACA's penalty for failure to buy health insurance—the tax rate gets lowered 0%. And if something ceases to be a tax, it can't very well be a constitutional exercise of the taxing power, now can it? As for what this means for the rest of Obamacare, we'll let the district court take the first crack at that. Dissent: If people who buy insurance pay $0 in penalties, and people who don't buy insurance pay $0 in penalties, where's the injury needed for standing?
  • At a 2016 Baton Rouge, La. protest against police brutality, an unidentified person lobs a heavy object that knocks out a cop's teeth, causes facial and brain injuries. The officer sues, among other things, the hashtag #BlackLivesMatters. District court: That is not an entity one can sue. Fifth Circuit (April): But the officer can sue a protest leader for negligently organizing a foreseeably violent protest. Fifth Circuit (August): The officer's suit can still proceed, but here's more First Amendment analysis. Fifth Circuit (December): The suit can still proceed, but one judge has had a change of heart and now dissents. (A cert petition is pending.)
  • In 2018, Mississippi passes a law that essentially banned abortion after 15 weeks' gestational age. Fifth Circuit: Yeah, that's obviously foreclosed by Supreme Court precedent. Concurrence (Judge Ho): I'm compelled to agree, but a district court crosses the line when it calls the state's interest in women's health "pure gaslighting," "equates a belief in the sanctity of life with sexism," and "smears Mississippi legislators by linking [the law] to the state's tragic history of race relations, while ignoring abortion's own checkered racial past."
  • Like most states, Illinois has limits on political contributions. But in an unusual twist, if a candidate self-funds more than $250,000 in a statewide race, or $100,000 in any other race, or if an independent-expenditure group or individual spends more than those limits, Illinois law removes all contribution limits in that race, including for corporations and unions. Liberty Principles PAC: But not independent-expenditure groups like us, who have a $0 contribution limit. That sure seems like it should violate the First Amendment. Seventh Circuit: Nope. If a candidate receives a million dollars from Exxon or the AFL-CIO, that's one thing. But if that candidate gets money from an independent-expenditure group—which is required to disclose donors at the same threshold as PACs that are allowed to make unlimited contributions—that might look shady.
  • Religious high school installs $235k in lights on their baseball field after getting the OK from Kirkwood, Mo. city planner. Oopsie! The city planner mistakenly thought the field already had lights and that the new lights were grandfathered in. After neighbors complain, the city approves the use of lights subject to conditions that make them essentially unusable. The school sues. Eighth Circuit: Having to play baseball during the day may be inconvenient, but it does not substantially burden any religious exercise. However, the state's religious freedom law is a bit of a mystery, so we'll let you refile that claim in state court.
  • Prison Legal News, a monthly magazine that helps inmates navigate the criminal justice system, has subscribers at a Colorado "Supermax" prison that houses Ted Kaczynski, Dzhokhar Tsarnaev, Eric Rudolph, and a host of other baddies. Between 2010 and 2014, prison officials reject the distribution of 11 issues of the magazine that contain information on the prison's inmates or staff. PLN files suit. Officials (eventually): We've distributed the issues, officially changed our policy, and sworn under oath that this won't happen again. Tenth Circuit: And when the gov't takes steps like that—which we outline in a neat chart on page 11—your case is moot.
  • A reminder from the Tenth Circuit: Even if Tulsa, Okla. police allegedly coerce you into a false confession, you will lose your lawsuit if you do not properly cite the record. "[Plaintiff's] error wasn't merely technical. The district court might have discovered the pertinent part of the testimony only by trudging without guidance through 1540 pages of exhibits."
  • California cannabis grower is now locked up in Colorado, as peddling pot, though legal in California, is still illegal under federal law. The grower: But Congress banned the feds from spending money to enforce marijuana laws when it's state-legal. Which means the feds can't pay to keep me in prison. Tenth Circuit: You can make that case to a federal court in Colorado. No need to go back to California (as the district court found).
  • In 2016, Birmingham, Ala. officials enact a $10.10 minimum wage, but the next day state legislators preempt it, effectively enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against African-Americans, who make up 73 percent of Birmingham and most of its city council. Eleventh Circuit (2018): A reasonable argument, racist laws don't really announce a racist purpose anymore. Eleventh Circuit (en banc, over a dissent): Plaintiffs don't have standing to sue the attorney general; case dismissed. Also, some advice: Sue the companies not paying you $10.10, not the gov't.
  • Man records a court proceeding on his phone, for which he is convicted of contempt. North Carolina appeals court: Conviction and sentence affirmed. The man must write a 2,000–3,000 word essay on why "respect for the court system is essential to the fair administration of justice," post the essay on social media, and delete all negative comments. Partial dissent (who was once a guest on the podcast): He shouldn't have to monitor the comments.
  • Note to gov't attorneys: If you're litigating a case in which the you bear the burden of proof, don't flagrantly violate the pretrial disclosure rules, because you may end up having all of your evidence excluded and the law you're defending will be struck down. In related news, the Tennessee Court of Appeals affirmed a trial court ruling striking down two campaign finance laws that imposed a yearly fee on nonpartisan PACs and prohibited nonpartisan PACs from making contributions in the 10 days before an election, but that imposed no such restrictions on party committees, because the government had no evidence to present.
  • Are people born in American Samoa entitled to birthright citizenship under the Fourteenth Amendment? District of Utah: Hmm. I have to choose between an 1898 case about the Fourteenth Amendment that suggests yes, and a super-racist line of non-Fourteenth Amendment cases that suggest no. After an interesting look at the history of birthright citizenship, I'm going with yes.
  • And in en banc news, the Sixth Circuit will reconsider its decision enjoining an Ohio law that bars doctors from providing abortions when they know the woman's reason is because the baby has Down syndrome.

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  1. Slightly OT
    “birthright citizenship”
    “subject to the jurisdiction thereof” modifies “born and naturalized” in the 14A. There is a compelling argument that children of illegal immigrants (or those lawfully visiting) born on US soil (permanent residents excluded as per Wong Kim Ark) would not be subject to US jurisdiction as per the 14A ratifiers and the public understanding of the term, thereby not being constitutionally entitled to citizenship

    1. Jus solis (as many understand it today) is also just horrible policy. Even under the most effective immigration regimes some illegals will get through and subsequently give birth in the US. This severely limits the ability of US citizens to determine who does and doesnt get to be a member of their polity.

      1. “This severely limits the ability of US citizens to determine who does and doesnt get to be a member of their polity.”

        So does citizens giving birth. “Wait, wait” says everybody. “We didn’t give you permission to give birth to another citizen”. To which the proper response is “so fucking what?”

      2. “This severely limits the ability of US citizens..”

        Yes, and it’s a good thing. The ability was being misused to deny citizenship to ex-slaves (among others) and therefore it was rightfully taken away from you. The comments sections here shows why you still can’t be trusted.

        Generic you, of course.

    2. There is a compelling argument that children of illegal immigrants (or those lawfully visiting) born on US soil (permanent residents excluded as per Wong Kim Ark) would not be subject to US jurisdiction as per the 14A ratifiers and the public understanding of the term, thereby not being constitutionally entitled to citizenship

      Calling an argument “compelling” doesn’t make it so.

        1. No doubt I am unpleasant to some.

          Anton’s article, which attempts to make a case based on some selective quotes from Howard’s speeches, is one of the least compelling arguments I have seen, and I say that without even bothering to look at what those who disagree with Anton, which is practically everyone, have to say.

          1. The selective quotes is quite a charge you should prob direct people to something unless you expect people to heed to the authority of the “bernard11” handle alone

            1. Another.

              Neither author can remotely be called a radical leftist, I think.

              I put these in two separate comments because I think the site will not accept comments with more than one link.

          2. “…which attempts to make a case based on some selective quotes from Howard’s speeches…”

            You misspelled, “doctored.”

            1. Yes. My apologies.

        2. “You are probably the most unpleasant commenter here”

          Assuming you accept that presenting facts is unpleasant.

    3. “There is a compelling argument that children of illegal immigrants (or those lawfully visiting) born on US soil (permanent residents excluded as per Wong Kim Ark) would not be subject to US jurisdiction as per the 14A ratifiers and the public understanding of the term, thereby not being constitutionally entitled to citizenship”

      So it’s your position that if a child of illegal immigrants, say, murdered somebody or robbed a convenience store or stole a car that they would be immune to prosecution in the United States? That’s…..a hard position to defend.

      1. No, the people who make this sort of half-assed argument insist that the people in question are still fully subject to the criminal law, but somehow aren’t “subject to the jurisdiction” of US law. You can point out the obvious stupidity of this position to them, but they won’t get it. It’s like when you try to tell one of those Sovereign Citizen nutjobs that reciting that they’re “traveling” somehow makes their driving without a license not driving without a license, since they aren’t “driving”, they’re “traveling”, something something Articles of Confederation fringe on the flag.

      2. No they are under our territorial jurisdiction but not our personal jurisdiction. They are subject to our laws but owe us no allegiance.

        1. Care to translate that into English?

        2. “They are subject to our laws…”

          So, they are subject to the jurisdiction thereof (the United States) then. Which means by the language of the 14th amendment they’re citizens. Glad we can all agree here.

    4. It’s hard to think of a “compelling argument” that children of illegal immigrants (or those lawfully visiting) are entitled to commit crimes with impunity.

      It’s rather puzzling that people who oppose birthright citizenship want to grant immunity from criminal law to the people they want to exclude from the country.

    5. Another nativist appears.

      As usual, making strained arguments to argue for a nativist constitution.

    6. Are those folks really not “subject to the jurisdiction of the United States”? Can we not hale them into court for violating our laws?

      I’d love to see someone try that in court: “no your honor, I’m not subject to the laws on DUI because I’m not a permanent resident”.

  2. re jury nullification:
    recently the conspirators discussed whether SCOTUS struck down unconstitutional laws or simply declined to apply laws it found contrary to the constitution; it seemed as if the consensus was for the latter.
    Is jury nullification materially any different than SCOTUS nullification then? Just let juries deal with bad law at the start of the defendant’s ordeal rather than drag things out another decade, and then only for those rarest of defendants who get their time at the supreme court.

    1. If you’re going to argue this line, you have to explain why the pardon power of the executive isn’t redundant.

  3. In 2016, Birmingham, Ala. officials enact a $10.10 minimum wage, but the next day state legislators preempt it, effectively enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against African-Americans, who make up 73 percent of Birmingham and most of its city council.

    Isn’t the original city legislation racist since it disproportionately prices out low-skilled black workers from the labor market?

    1. Neither was racist, because neither treated similarly situated people differently based on their race.

      1. “But… but… disparate impact!”

        The ignorance of judges about statistics is one of the most disturbing pieces of the stories that show up in this blog.

      2. From reading the first 11th circuit opinion, their reading of precedent indicates that if sufficient circumstantial evidence indicates a law was pass for discriminatory purposes/motives it would not pass constitutional muster. The disparate impact of the law is a necessary but not sufficient prong in this test.

        My question is if the court did strike down the law, would the legislature be enjoined from passing a minimum wage preemption until the next election? How would this work?

  4. “But, per the Second Circuit, courts may not encourage nullification, which means a defendant may not argue for it.”

    Jury nullification was an integral part of the jury system at the time the Bill of Rights was adopted. If you look at the traditional triumphs of the jury system, such as the William Penn trial, they were instance of jury nullification.

    I continue to think that, in denying defendants the right to ask for jury nullification, and lying to jurors about their unambiguous right to engage in it, the government is denying people the type of trial by jury that the Bill of Rights guaranteed us a right to.

    1. Jury nullification is a two edged sword. Yes, it allows right minded juries to put limits on government abuses. It also allows racist juries to vote their racism, which probably happens far more often than the other way around. And it raises the question of why, if juries can ignore laws they find unjust, judges can’t as well. Or, for that matter, why citizens can’t simply ignore laws they consider unjust. In other words, it’s an invitation for everyone to be a law unto himself, since there’s probably no law anywhere that someone doesn’t consider unjust.

      At the end of the day, I wouldn’t want to abolish it altogether because I think there are extreme cases where it’s necessary. But I also think it’s far more dangerous than its proponents admit, and if we’re going to make it a formal part of the legal system, we need to do so with our eyes wide open to the potential problems it creates. Having grown up in the South, I can tell you a lot of lynchers evaded justice because of racist juries nullifying laws against kidnapping and murder.

      1. Police can ignore laws they consider unjust; they are not under a legal obligation to arrest every single person they believe to be breaking the law. Prosecutors can ignore laws they consider unjust; they are not under a legal obligation to prosecute everyone that is arrested for breaking the law. Why would we want those groups to have that power, but not citizens serving on a jury, given that juries are supposed to be a check on government power?

        1. And so long as you recognize the potential problems inherent in selective enforcement, fine. I didn’t say abolish nullification altogether; I just said be mindful it’s a double edged sworn.

          1. “And so long as you recognize the potential problems inherent in selective enforcement, fine.”

            There is no such think as not selective enforcement these days. The law is to volumous and too complex. There is no jurisdiction anywhere where the police, prosecutors, and courts have anywhere near enough resources to pursue every offense.

        2. Well for one things, police and prosecutors are either elected by the people, or are supervised by someone who is elected by the people, and can thus be held politically accountable if they exercise their discretion inappropriately.

          1. Setting aside that accountability doesn’t really exist because there’s no way to know about a cop giving someone a warning rather than arresting him, and not any practical way to know about many exercises of prosecutorial discretion, jurors are the people.

          2. Voters are drawn from almost the same pool as jurors.

            Seems to me you’re engaging in the democratic fallacy: believing that people are a pretty sorry unreliable bunch, even when serving as jurors and sworn to be on their best behavior, but develop collective virtue and wisdom when voting in secret at complete discretion with zero accountability.

            To put it another way: are there examples of counties where juries were doing racist nullification, but at the same time the voters were kicking out racist mayors and police chiefs?

            1. Ducksalad, suppose I agree with you that democratic elections and jury nullification are both problems because they allow racists and other evil people set policy. In the first place, undertaking to fix one problem — jury nullification — does not require that all other problems also be fixed at the same time, especially when keeping racists from voting poses a far greater challenge than does restricting jury nullification. We’re allowed to work on one problem at a time.

      2. Having grown up in the South, I can tell you a lot of lynchers evaded justice because of racist juries nullifying laws against kidnapping and murder.

        Did they? Or did they evade justice for the same reason that cops do today — a lack of motivation on the part of prosecutors (and judges) to hold them accountable? After all, those same racist people, when serving on federal juries, were convicting defendants.

        1. There have been a number of relatively recent cases in which prosecutors and judges tried to hold police officer accountable, only to have a jury acquit them under circumstances under which a non-cop would almost certainly have been convicted. I’m not saying that when racism (or failure to hold cops accountable) wins the day, the problem is always the jury. But it’s the jury often enough to question the wisdom of formally making jury nullification part of the process.

          1. Let’s just say that I question the zealousness with which the prosecutors and/or judges tried to hold the police officers accountable.

            1. That’s fine; I myself am of the view that eternal vigilance is the price of liberty, and that when people are given the power over other people that police officers have, there needs to be a heightened level of accountability. I guess if we were on the same jury we would each bring our respective world views into the jury room with us.

              1. If you did it in Oregon, you wouldn’t necessarily have to agree with each other to have you jury render a verdict.

            2. By the way, I do not understand the love affair that some conservatives have with cops, since it seems absolutely incompatible with the general conservative principle that government employees — which cops are — are not to be trusted.

              1. Cops are generally conservatives. Prosecutors come in both liberal and conservative, but cops tend to be conservatives. The liberals tend to land in other kinds of government jobs.

    2. But, per the Second Circuit, courts may not encourage nullification, which means a defendant may not argue for it.

      I’m reminded of my HS government teacher, who mocked this position 30 years ago: “Basically the judge ruled they didn’t need to bring it up because all Americans know they can do this, but if they bring it up, it will cause havoc.”

  5. “Jury nullification was an integral part of the jury system at the time the Bill of Rights was adopted.”

    Then perhaps the Framers should have specifically authorized it. Gun ownership was an integral part of the militia system when the Bill of Rights was adopted, too.

    1. Riiiiight, that’s a compelling argument.

    2. It’s covered by the 9th.

      1. Nothing is specifically listed in the 9th. The problem with 9th amendment jurisprudence is that, with nothing listed specifically in the 9th, something either is covered, or is not, based solely on the whim of the observer.

        Because of this fact, “it’s covered in the 9th” is not really an answer to “The founders should have specifically authorized (X)”

    3. What do you think right to trial by jury is? That was putting it in the BoR. Trial by jury isn’t just a jury sitting there but you being allowed to mount a defense; nullification was seen as a perfectly valid defense.

      1. “What do you think right to trial by jury is?”

        It means you get 6-12 (or 100) people who decide if the facts are that you dun did it, or whether you dun din’t.

  6. Regarding the case of the Religious School and the baseball field lights, it seems to me that if you go through an approval process, and the relevant authorities screw up, they ought to have to suck it up. They got their shot. They don’t get a do-over.

    But I doubt that point of view will be popular with our Political Class.

    1. Seems as if it turns out that you can’t use the lights then Joe Taxpayer, through his elected representatives, needs to reimburse the school the $235 grand that they wasted due to the government’s mistake. At a minimum.

      1. Seems that way to me.

      2. “Seems as if it turns out that you can’t use the lights then Joe Taxpayer, through his elected representatives, needs to reimburse the school the $235 grand that they wasted due to the government’s mistake.”

        Meh. Did they know the approval was a mistake, and then go ahead and build anyway? That would cut the other way. More facts needed prior to rendering a decision.

    2. ” the relevant authorities screw up, they ought to have to suck it up. They got their shot. They don’t get a do-over. ”

      And fuck the neighbors, who didn’t screw up, and whose concerns are apparently of no moment.

      1. In this particular case, you *could* split the baby in half. Not allow the school to use the lights at night, under some Public Nuisance theory. But give full reimbursement to the school, which did nothing wrong other than reasonably rely on what the govt said/did. Yes, the taxpayers will have to pay to make the school ‘whole.’ But those taxpayers (ie, voters) can reward/punish at the next election, just as if they had to pay more taxes due to large payouts for police brutality, negligently-repaired sidewalks, etc etc..

  7. “per the Second Circuit, courts may not encourage nullification, which means a defendant may not argue for it. ”

    How is this not a 1st and 6th amendment violation?

    1. Your right to speak freely can be curtailed when your right starts to infringe the rights of others. This is why schoolchildren are not free to speak to public school teachers in any way they might choose to do so.
      The same reason criminal penalties for perjury aren’t a first amendment violation.

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