Short Circuit: A Roundup of Recent Federal Court Decisions

Jail food, a rough ride, and shopping while black.

|The Volokh Conspiracy |

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

New on the podcast: Maryland political advertising, Texas liquor protectionism, and sham review of Louisiana habeas petitions. (Click here for Apple Podcasts.)

  • Aluminum sheet manufacturer changes its overtime policy, requiring its unionized workers to sign up for overtime a week in advance. Union members protest by refusing to sign up for overtime, and one disgruntled union member expresses his displeasure by scrawling "whore board" above the overtime sign-up sheets, leading to his suspension and eventual firing. NLRB: Defacing company property with the words "whore board" was protected activity related to the protest of the new overtime rules. D.C. Circuit: That's right, but the NLRB ignored the company's argument that it had an obligation to maintain a harassment-free workplace, so the Board should take another look.
  • ISIS-supporting Staten Island, N.Y. man conspires to commit domestic terrorist attack against police, tries to stab FBI agent. His resulting sentencing guidelines sentence is 85 years' imprisonment. District court: 17 years is long enough. Second Circuit: That is a "shockingly low sentence." The case is remanded for resentencing. Partial dissent: "I fear the majority would prefer to substitute its sentencing preference for that of the District Court."
  • Food meant for local jail winds up in jail supervisor's Hattiesburg, Miss. restaurant. A month after the supervisor and his wife are sentenced (several years in prison plus six figures of restitution) for hiding income from IRS, federal agents who worked on the case give local news interview. The couple sues the agents in state court for slander. Fifth Circuit: The feds appropriately removed the case to federal court—where it must be thrown out because the couple didn't file a particular piece of paper required in federal tort cases.
  • Fifth Circuit: We're not saying that this diabetic prisoner in Texarkana, Tex. federal prison who broke his ankle and went without effective medical care for a weekend and then served 93 days in segregated housing after he complained doesn't have a Bivens claim. But if he didn't, it would be for the reasons expressed in this 450-word footnote. Concurrence: Well, I'm saying he doesn't have a Bivens claim for the reasons expressed in that 450-word footnote.
  • Livonia, Mich. undercover cop sees "beat-up minivan" late on winter night, has a hunch that crime is afoot. He calls uniformed cops, and they—after noting the minivan's three occupants are black men—tail the minivan across three jurisdictions, eventually stopping the men as they are leaving a store (where they bought space heaters). Yikes! One of the men has concealed weapon, for which his permit has expired. He's arrested. (All charges are dropped after state court finds the stop unconstitutional.) The man then sues the cops, claiming violations of both the Fourth and Fourteenth amendments. Sixth Circuit: Qualified immunity for the uniformed cops but not the undercover cop. Partial dissent: A jury might find the uniformed cops also targeted the group for "shopping while black."
  • Woman asks a friend to look after her 15 dogs while she's away. The friend notifies authorities of the appalling conditions the dogs are living in. Montgomery County, Tenn. animal control enters, takes photos, removes the dogs. After the photos are disseminated publicly, the woman loses her job. But the animal cruelty charges against her are dropped after the search of her home is determined to be unconstitutional. (Five of the dogs are returned to her.) Can she sue various officers and the county for violating the Fourth and Fourteenth amendments? The Sixth Circuit says no.
  • Bibi Von Sonnenberg, a German Shepherd of esteemed lineage, escapes from her backyard. North Little Rock, Ark. animal control finds her, destroys her breeding value by spaying her, and gives her up for adoption—even though a simple microchip scan would've revealed the identity of her owner. Owner: The state must give notice before deprivations of canine property. Eighth Circuit: Very immunity. So summary judgment.
  • Does the word "diet" mean "assisting with weight loss" such that soft drinks like "Diet" Dr Pepper are committing false advertising? The Ninth Circuit says no.
  • Las Cruces, N.M. police officer: Who could possibly have known that it violates an arrestee's rights to put him in the back of a squad car, hands cuffed behind his back and with no seatbelt, and then to intentionally drive recklessly so that he is slammed back and forth, injuring his shoulder, and then to deny him medical treatment for more than two hours despite medical treatment being readily available? Tenth Circuit: You. You could have known that. No qualified immunity.
  • Allegation: Homeless man rides his bike across the property of a defunct Cartersville, Ga. elementary school to get to the adjacent storage unit in which he lives. Within 60 seconds of entering the school property he is detained and arrested for criminal trespass. (There were no warning signs against trespassing.) The charges are eventually dropped. Arresting officer: You can't sue me for false arrest because you pleaded guilty to a crime! Eleventh Circuit: Yeah, in a totally unrelated case that had nothing to do with the crime you arrested him for. Case remanded. (#appellatetwitter content warning: The opinion repeatedly uses "pled" instead of "pleaded.")
  • And in en banc news, the Tenth Circuit will not reconsider its decision that the Takings Clause is not implicated when a SWAT team blows up an innocent person's house in pursuit of a fugitive. (This is an IJ case.)

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  1. “Where, as here, the state dismisses a criminal charge based on a compromise agreement with the defendant, the charge does not terminate in the defendant’s favor.”

    That sounds stupid.

    State: If you plead to the MJ charge, you get time served, and we dismiss the trespassing.
    Defendant: How much if you don’t dismiss the trespassing?
    State: 30 more days.

    Can the defendant even prevent the state from dropping a charge pursuant to an agreement?

    1. Can the defendant even prevent the state from dropping a charge pursuant to an agreement?

      Of course: by not agreeing to it.

      1. “Of course: by not agreeing to it.”

        I don’t know. It doesn’t seem clear, to me at least, from the record that he did agree to having the charge dismissed as part of the deal.

        1. I agree that the the opinion could be clearer on that point, but the record definitely shows that there was a plea agreement.

      2. “Of course: by not agreeing to it.”

        And if they drop it and say it was because you agreed to it… Then you agreed to it, no?

        1. I don’t see how the unilateral decision to dismiss a charge can be fairly characterized as you entering into a plea agreement that includes dismissing the charge. Can you explain why you think so?

          1. You wouldn’t think so, would you? But if everyone but you says you did…

            1. If everyone but you says you did, the fact that you neither signed the agreement nor swore under oath to the plea would be rather decisive, wouldn’t it?

              1. I’m sure they’ll all break down, Perry Mason style, on the witness stand when they get asked if that’s REALLY your signature on the document.
                You know, the same way law-enforcement agencies are known for testifying that they coerced the defendant to confess…

  2. … (#appellatetwitter content warning: The opinion repeatedly uses “pled” instead of “pleaded.”)

    Has #appellatetwitter weighed in yet on the difference between being well hanged and well hung?

    1. Was that in the article because the writer thought “pled” superior to “pleaded”? Or inferior?

  3. Can somebody explain to me why signing up for overtime a week in advance is worth protesting?

    1. Because unions, that’s why

    2. “Can somebody explain to me why signing up for overtime a week in advance is worth protesting?”

      Because not everybody knows what their availability is/will be a week in advance.

      Presumably, under the previous system, people were offered the opportunity for overtime based on rules the union negotiated for.

    3. From the NLRB decision:

      Under the new policy, employees interested in working overtime were required to sign up on sheets (posted on a bulletin board outside the lunchroom) 7 days in advance and would be subject to discipline for not working overtime after it had been scheduled.

      These new rules were unilaterally imposed by the employer and less desirable than what had been in the previous collective agreement (employees volunteered three days in advance and were not punished if they failed to appear as scheduled), so yes they had something to complain about.

  4. “Defacing company property with the words “whore board” was protected activity related to the protest of the new overtime rules.”

    A right to vandalize.

    1. I wonder if, to the extent to which the NLRA requires employers to allow employees to write “whore board” on the employers’ property, that that is compelled speech under the first amendment.

      1. In the sense that it’s compelled speech if you have to let someone else say something you disapprove of, I guess.

        1. I don’t just have to let him say it, I have to let him write it on my stuff.

          1. Yeah. Being the guy who owns the factory instead of just working in it totally sucks.

            1. And who says the left doesn’t want judges to rule based on the economic circumstances of the litigants? I guess y’all have been up front about that for quite some time.

              1. Why would I care what “the left” wants, any more than what YOU want?

                1. “Why would I care what “the left” wants, any more than what YOU want?”

                  Well, you should care what I want because it’s the right thing. And you should care what you, the left, wants because it’s wrong.

                  1. Again, why do I care what the left wants, or what you want, assuming they’re different?

    2. From the limited description in the appeals court opinion you might believe Williams had spray-painted the lunchroom wall or carved his message into a corkboard, but the company property he defaced was actually the signup sheets themselves. Yes, the sheets of paper posted by the company with the intent that employees write on them. From the Board decision:

      The Respondent had a legitimate interest in maintaining the order of the signup sheets, including keeping them free from defacement. Nonetheless, the weekly signup sheets were temporary in nature and could have been easily
      removed or replaced. Indeed, the signup sheets Williams marked at the end of his shift on Wednesday, October 2, were already scheduled for removal the following day. Additionally, there is no evidence that Williams’ act disrupted work or interfered with the legibility or use of the signup sheets.

      1. Given the fact that unions have a history of using violence against anyone who disagrees with them, I cannot agree with the court’s assessment.

        What it says is:
        This is the “whore board” anyone who signs up here is a traitor and/or streetwalker.

        This was a threat, or at the very least, a direct, vile insult.

        1. It’s definitely not a threat and even “vile” insults are protected.

  5. “Does the word “diet” mean “assisting with weight loss” such that soft drinks like “Diet” Dr Pepper are committing false advertising? The Ninth Circuit says no.”

    I would argue that by satisfying a craving that would otherwise be satisfied with a caloric beverage, diet soft drinks are in fact “assisting with weight loss”

    1. Then you get into all sorts of scientific questions, and studies as to whether it really helps one with weight loss or not, and some of the studies may show it doesn’t actually help with weight loss…

      Then the manufacturer gets sued…..

      Better to just say “diet” is being used as shorthand for “low/zero calories”

      1. The thing is, both skinny people and big people have diets. So why would “diet” refer to only one subgroup?

        1. Because the “diet” in diet products refers to a specified and regulated diet and those products are intended for use in such diets.

          1. There are specified and regulated diets for people who want to be bigger than they are currently.

      2. But assuming other behavior is held constant it seems that it would help, even if only a tiny bit, with weight loss. It’s the marginal effect that matters, I think.

        The manufacturer is not responsible for the fact that you decided to start eating double jumbo bacon cheeseburgers because you switched to low-calorie soft drinks.

        1. It’s an argument the manufacturer simply does not want to get into (That their diet soda help with weight loss). Because…

          1. The manufacturers would need to prove that their diet soda actually helps with weight loss. That sort of proof is difficult to get, and especially to be comprehensive.

          2. The manufacturers would then need to contend with all the correlational studies which shows a disproportionate number of people drinking “diet” soda are overweight and have diabetes. And that’s before you get into the metabolic dysregulation stuff.

          It’s not worth it. The manufacturers might win, in a jury trial. Of course, they might lose too, if people focus on the correlational study that shows long time drinkers of diet sodas are fatter than other people.

          Instead, it’s better to make the argument that “diet” in this context is simply understood by the vast majority of people to mean low/zero calorie when compared to the “regular” beverage. That’s an easy argument to win,

          1. A.L.,

            Of course, they might lose too, if people focus on the correlational study that shows long time drinkers of diet sodas are fatter than other people.

            And people who take insulin are diabetic, so what the hell good does it do?

            Still, I don’t disagree with any of what you say as practical matter.

            I was just pointing out that, as a matter of logic, IMO, diet drinks do in fact reduce caloric intake and thus help with weight loss. I don’t expect the world to understand my logic, irrefutable as it it is.

          2. “1. The manufacturers would need to prove that their diet soda actually helps with weight loss. That sort of proof is difficult to get, and especially to be comprehensive.”

            Actually, they only need to prove that USED CORRECTLY their diet soda actually helps with weight loss.

          3. “Of course, they might lose too, if people focus on the correlational study that shows long time drinkers of diet sodas are fatter than other people.”

            It would also require people to ignore the problem that such studies have with establishing causality and/or the direction of causality.

    2. Well, the biological argument is that drinking the diet soft drink doesn’t actually stop the craving. There was an interesting study a while back which showed that regular drinkers of diet sodas not only compensate but over-compensate for the sugar reduction in the drink. (Unfortunately, I can’t find a link to that study right now. I’ll come back if I can find it later.) I don’t know if that study has yet been replicated. But if the results hold up, it’s an argument that diet drinks would not actually assist with weight loss.

      Despite that, the case definitely should have been thrown out. Calling something “diet” isn’t nearly enough of a promise.

      1. “if the results hold up, it’s an argument that diet drinks would not actually assist with weight loss.”

        No, it’s an argument that some people are using the product incorrectly. Manufacturers of “diet” soda provide fizzy flavored water, not psychological counseling.

        1. It’s astonishing how you manage to get everything so consistently wrong.

          In this instance, you are wrong about the nature of the craving. According to the study, it is physiological, not merely psychological.

          1. “It’s astonishing how you manage to get everything so consistently wrong.”

            Yet you you manage to somehow be wronger.

            “In this instance, you are wrong about the nature of the craving”

            WTF are you bleating about?

            1. “WTF are you bleating about?”

              You may be shocked to learn this, but not all big words that begin with the letter “p” are the same.

              1. Now WTF are YOU bleating about?

              2. “You may be shocked to learn this, but not all big words that begin with the letter “p” are the same.”

                “Diet” is a not all that big a word, and doesn’t start with a “p”.

          2. I see. The action of someone going out, getting food, and eating it is physiologic. Yeah, I guess so, but that means thinking is only epiphenomenal — which some people do actually think; their physiology makes them think so.

    3. They don’t, actually, because your weight is actively maintained by biological feedback. Get less calories here, you become hungrier, and eat more elsewhere. Restrain yourself from doing that, and you become lazier, burn fewer calories.

      You can’t trick your body into losing weight, there’s no substitute for exercising will power.

      But, so what? Non-caloric beverages still have the advantage of sparing your teeth from being bathed in sugar. That’s no small thing.

      1. Not quite, you can trick your body into losing weight, using those same feedbacks, by altering your hormone profile.

        Want to lose weight?

        Increase your testosterone and thyroid hormones. Testosterone is injectable by any of the common esters, most often testosterone cypionate (but many others are available), or through topical creams and gels. If you have high estrogen (which causes weight gain), lower it with an aromatase inhibitor like arimidex.

        T3 and T4 (the two thyroid hormones) can be directly taken by pill if you’re outside the US, or you can get T4 by itself in the US. You can also trigger natural production with TSH, also available directly.

        Upping T3 and T4 will increase your metabolism and (basically, and eliding a lot of complications) turn you into an ectomorph. Upping testosterone will convert fat to muscle, and lowering estrogen (Estradiol, E2 specifically) will inhibit fat retention.

        If messing with hormones it’s important to do these too, as a high metabolism without the androgens will make you waste away (especially with men).

        The reason this isn’t done as often for weight loss is that it’s a large and complicated set of hormones that all interact with each other, and you can have bad outcomes if you don’t track them all – I haven’t even mentioned insulin or blood sugar modifiers like metformin, both of which are important to get right (otherwise you may just gain muscle without losing any fat), and if you get something like your estrogen too low you’ll get immediate onset osteoporosis.

        But if you can find a competent doctor they can dial in your hormones to get almost any result you want. You still have to do some of the work – you can’t just constantly eat fries and ice cream, but the hormones will do a huge part of the lift and can easily make the difference between constant failure and overwhelming success – especially if you’ve tried many times before and can’t make it stick.

        To find one of those doctors look for any endocrinologist who doesn’t specialist in diabetes (almost all of them primarily treat diabetics), or a male fertility specialist (it’s mostly the same hormones). Most of the better places don’t take insurance, but if you’re willing to do the injections yourself (and you should), it’s not too expensive – under $100/month for medication and supplies. Concierge doctors often do this too, and then you get the extra benefit of their other services. I pay my doctor $50/month retainer, plus $25 phone consults – which she’ll also do by text if it’s something really easy. Turns out it’s cheaper than going to somewhere covered by insurance, because she’s working for me and will have me do most of the treatments (she does them for patients who aren’t able to, of course, but why would you need to go in for a shot when she can just have it mailed to your house and you inject it yourself?). I do the same for blood tests – the phlebotomist comes to my house, when it’s convenient for me, and then they send the samples out to the cheapest lab for each test so I get the benefit of lower pricing rather than going to a single lab for everything.

        1. Good advice, you can actually bypass the will power bit if your medical interventions are detailed enough.

          Just not by drinking diet sodas.

        2. Then why does bariatrics exist, with bariatricians doing surgery instead of drugs? Do bariatricians not consider a patient to be a candidate for surgery unless hormone treatments have failed?

          1. Surgeons cut, because that’s what surgeons do.

    4. How could a no-cal substitute for a caloric beverage not qualify as “assisting with weight loss”? It doesn’t even seem arguable. Besides, that’s been the common understanding for so long, it must be accepted as a use of the word even if it could be shown to be untrue.

      1. If you supersize your McMeal and then pour yourself a 32oz Diet Coke, should you expect to lose weight?

        In the context of sweet fizzy water, “diet” has nothing to do with weight loss. It means that this particular kind of sweet fizzy water has a sweetener in it that isn’t sugar. That’s all it means. This is why brand name water, which has zero calories in it in the first place, isn’t marketed as “diet” anything, despite being the lowest in calories. “Regular” style sweet fizzy waters have fructose or sucrose in them (as so some non-fizzy beverages, such as fruit juice. Even natural milk has sugar in it, lactose. Note that milk that has had the lactose removed from it is not marketed as “diet”, because the lactose is removed because some people can’t digest it, and when it is removed, it isn’t replaced by another sweetener. Milk that is marked to people who want to lose weight has the CREAM removed, not the sugar, and is marketed as “skim” milk.

        So, you have some products that are marketed to people who want to lose weight… water, and skim milk. Note that neither one is labeled “diet”, which puts a damper on the claim that products that are aimed at people who want to lose weight are marketed as “diet” beverages, and that “diet” beverages are marketed only to people who want to lose weight.

      2. “How could a no-cal substitute for a caloric beverage not qualify as “assisting with weight loss”?”

        Insulin. Insulin is a hormone that is often viewed as regulating blood sugar levels.

        However, there is more to it. In a normal healthy person if blood sugar levels go above a certain point, this triggers the production of insulin which removes sugar from the blood. However, the sugar removed from the blood isn’t simply flushed out of your system. What insulin does is trigger the body to take sugar out of the blood and convert it to fat for storage.

        While the artificial sweeteners have no calories, some of them will still trigger an insulin response, causing your body to create more fat, instead of burning it.

        1. You’re back to having to leave out “used correctly”.

          Obviously, non-calorie sodas have mass, and therefore consuming them will add mass to your body, which, within range of planetary-sized bodies, means more weight.

          (Note that your insulin chemistry argument presumes that there IS sugar from some other source to be turned into fat. The logical conclusion, then, is that it is the source of that sugar that causes fat accumulation.)

  6. On the U.S. v Mumuni case:

    It is stated that the defendant was 21 years old at the time the crime was committed, and the trial court’s finding that he “had no criminal history” was not contested.

    So how did he end up with a criminal history category of VI? Is this some weird terrorism related footnote in the guidelines?

    1. The one thing Scalia was truly, totally right about was the unconstitutionality of the guidelines.

      1. I don’t see how. Can you expand?

      2. Even in their current advisory form?

        As I remember, he was right, they fixed them as no longer binding, problem solved.

    2. Yes, if the 12 point terrorism enhancement under §3A1.4 applies, the defendant is automatically treated as Category VI (although since the guidelines recommendation is always life for offense level 43, that didn’t actually affect the range in this case).

  7. Unless I missed it, I don’t believe it’s been mentioned on this site that in a suit brought by trucking companies, a federal judge in California has issued a temporary restraining order against California enforcing AB 5 (the freelancer law) against “motor carriers”. As federal law defines a “motor carrier” as one who carries “passengers or property for compensation”, that would seem to encompass Uber and similar companies.

    https://www.supplychaindive.com/news/judge-exempts-trucking-ab5/569674/

    1. I meant to add, the suit was based on federal preemption.

  8. Pled – perfectly fine past tense of plead.

    Pleaded is an abominable neologism.

  9. “Takings Clause is not implicated when a SWAT team blows up an innocent person’s house in pursuit of a fugitive.”

    Just wow!

  10. Small quibble about the dog decision, and I’ll happily argue with the Supreme Court about it:

    Property interests “are created and their dimensions are defined by existing rules or
    understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.” Board of Regents v. Roth, 408 U.S. 564, 577 (1972)

    Property rights, like all basic rights, are inherent and exist in The People prior to the creation of a government to protect them. Government defines proper paperwork tracking and so on, but that’s not the same thing.

    Philosophy matters. Never let the power hungry convince you your rights are a gift from them, or democracy itself for that matter.

    1. “Property rights, like all basic rights, are inherent and exist in The People prior to the creation of a government to protect them”

      Stating your conclusions as if they were inviolable fact is not a way to win an argument with a reasoning person. For example, consider this counterproposal: You have exactly those rights that somebody else is prepared to give you, and no more. If someone else detemines that you have no right to live, they can take your life, and all your bleating about “rights” won’t give you so much as another breath of life. If they determine that they have a greater interest in your property than you, and are prepared to back this conclusion with sufficient force, your property is no longer yours. These “basic rights” you imagine don’t actually exist at all, unless someone chooses to extend them to you.
      In a state of nature (red in tooth and claw) where no government exists, you have no rights. If Big John over there decides to wait until you’re not looking and then bash your head into paste with a big rock, you don’t have a right to life. Or a right to due process before he can take action. You don’t even have a right to petition anybody for a redress of your grievances. Rather, it is the agreement that other people will honor your rights that gives them power, and government comes from that agreement.

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