Short Circuit: A Roundup of Recent Federal Court Decisions

Confederate monuments, bird handling, and tied houses.

|The Volokh Conspiracy |

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

State restrictions on selling homemade food items often serve no public health and safety interest and prevent people—disproportionately women from poor and rural areas—from earning an honest living. Read more about North Dakota's recent crackdown on food freedom in USA Today from IJ staffers Jennifer McDonald and Daryl James.

  • In 2014, a commercial flight en route to Beijing disappears over the southern Indian Ocean. All 239 passengers and crew, including three Americans, presumed dead. An investigation yields little insight as to the cause. And, says the D.C. Circuit, the district court did not err in holding that claims against Boeing and Malaysia Airlines should be brought in Malaysian courts.
  • In 2002, Congress amended the Animal Welfare Act to make clear that it applied to birds not bred for research, thereby requiring the USDA to promulgate regulations on the humane care and handling of such birds. However, to this day the USDA has issued no regulations. A violation of the Administrative Procedure Act? The case should not have been dismissed, says the D.C. Circuit.
  • After 30 years in prison for burglary and rape, North Carolina man discovers that prosecutors at his 1976 trial withheld (among other evidence) forensic results that did not link him to the crimes and a sample of the rapist's semen. Fourth Circuit: The state courts reasonably determined that none of the withheld evidence would have had an impact on the man's trial, so his convictions stand. Dissent: That is emphatically wrong. "[T]here is zero doubt in my mind that the cumulative effect of the suppressed evidence in this case" might well have had an impact on the trial.
  • Fourth Circuit: Virginia environmental officials must reconsider their decision to grant a permit to a pipeline company to build a compressor station (which would burn gas 24/7/365 days a year) in a historic community established by freed slaves after the Civil War. (Per Georgetown's Civil Rights Clinic, it's one of the few remaining Freedmen communities in the country.) Officials failed to properly consider how emissions from the station would impact the community.
  • After the University of Texas and San Antonio officials decide to remove Confederate monuments, the Sons of Confederate Veterans sue to keep the monuments in place. The claim? Removing the monuments violates our First Amendment rights because we like what the monuments stand for. Fifth Circuit: No standing. The First Amendment lets you sue to prevent suppression of your own speech, not any speech you happen to agree with.
  • Allegation: El Paso, Tex. woman is arrested on an outstanding warrant less than three days after undergoing leg surgery and while still confined to a wheelchair. Despite her physical therapist's conclusion that she is not a candidate for crutches, jail officials take her wheelchair, require her to use crutches, and force her to carry her own food while using crutches, leading to a fall that aggravates her injuries and requires another surgery. Fifth Circuit: And that may well violate the Americans with Disabilities Act, though it's not egregious enough to violate the Eighth Amendment.
  • For unknown reasons, unknown individuals jump out of a car and shoot at a Saginaw, Mich. restaurant. Can city officials shut down the restaurant because it was the target of a crime by unknown third parties? Two-thirds of this Sixth Circuit panel thinks maybe not.
  • Saginaw County, Mich. ordinance forbids all but one ambulance company from operating. "That's unconstitutional!" says a second company, which starts providing services. Rather than enforce the ordinance, county officials wait six years to file a federal lawsuit asking the courts to declare that the monopoly isn't unconstitutional after all. Which, says the Sixth Circuit ever so gently, is not a thing the government can do.
  • In a bizarre bid to defeat a client's child porn prosecution, expert witness creates more child porn. (He manipulates photos of minors to show them having sex.) Sixth Circuit: This plan was malicious as a matter of law. So bankruptcy does not eliminate the minors' $300k judgment against the expert.
  • Distasteful though it may be, holds the Sixth Circuit, a high school football coach does not violate Title IX by calling a player a "pussy." (Although, suggests the dissent, he may commit intentional infliction of emotion distress.)
  • Tennessee state representative sexually harasses at least 22 women, is expelled from the legislature. His lifetime health benefits are terminated. Can he sue the officials who decided to terminate his benefits? His suit is not barred by sovereign immunity, says the Sixth Circuit.
  • Man spends three decades in prison for a double murder he did not commit after Peoria, Ill. police (allegedly) fabricated evidence and forced his confession when he was just 14 years old. He's paroled in 2006, his sentence is commuted in 2011, and he's pardoned in 2015. He sues the city within two years of the pardon. City: Too late! You should've sued once you were paroled. Seventh Circuit (en banc, over a dissent): Heck no. Central to his claims is that his conviction was invalid, so his conviction had to be invalidated before he could sue over them. And that didn't happen until he was pardoned, so his case is timely.
  • Missouri, like many states, has a "three-tier system" of alcohol regulation that prohibits alcohol producers and distributors from having any financial interest in an alcohol retailer. Missouri officials interpret the law to prohibit alcohol producers and distributors from retail advertising. A First Amendment violation? Officials: No way! The statute doesn't say anything about speech; it merely bans advertising. Eighth Circuit: … Oh, that's it? We thought you were gonna keep going. No, that's definitely unconstitutional.
  • Allegation: After meeting with his lawyer, Florida inmate is escorted back to his cell by a prison guard. The guard orders him to sit. Then stand. Then sit. Then stand. When the inmate asks what's up, the guard pepper sprays him, slams him on the ground, pulls down his pants, and forces a finger up his anus. District Court: I don't believe you. Summary judgment for the defendant. Eleventh Circuit: That's the jury's call, not yours. Also, we repudiate an earlier decision that suggested that maybe a little bit of sexual assault in prison is okay.
  • Then-U.S. congresswoman raises $800k for her charity, disburses only $1.2k for charitable purposes, spending the vast majority on personal expenses. At trial, the district court dismisses a juror who indicated during deliberations that he'd had a divine revelation that the congresswoman was not guilty on all counts. She's convicted. Eleventh Circuit (over a dissent): The judge did not err by dismissing the juror. Dissent: The majority misunderstands "the vernacular of a substantial segment of our citizenry," and its decision will permit eligible jurors who believe God speaks to them to be stricken from jury pools.
  • And in en banc news: Texas high court denies review of rape conviction, 50-year sentence but inexplicably fails to tell petitioner for eight months, causing him to miss deadline to seek review in federal court. He files his habeas petition eight days after learning of the denial. District court: Tough. You should've pursued your rights more diligently. Fifth Circuit: No, the court error gave rise to more time to pursue his deadline. And there'll be no en banc rehearing, despite the protestations of Judge Smith who finds the state's refusal to seek rehearing "astonishing" and the panel decision full of "obvious flaw[s]" (such as referring to the state as "the government," a term "uniformly reserved" for the feds).
  • And in task force news: A Third Circuit task force studying the problem of mistaken eyewitnesses and wrongful convictions has issued a report recommending a commendable series of best practices for lineups, interviews, and more. (H/t to the inestimable CA3blog.)

Under the borough's rental inspection ordinance, Pottstown, Penn. officials claim the authority to enter homes to inspect them for housing code violations without individualized probable cause and without consent from tenants or landlords. Which does not sit well with Dottie Rivera, who does not want officials poking through her perfectly well-maintained home, which she rents. So in 2017, Dottie, her husband, and their landlord joined forces with IJ to challenge the ordinance under the state constitution, which provides stronger protections against suspicionless searches and seizures than the U.S. Constitution. And this week, a state appeals court ruled, among other things, that residents need not submit to an inspection before they can challenge the ordinance. Click here to learn more.

NEXT: Brazilian Judge Blocks Gay Jesus Movie, Supreme Court Reverses

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  1. “his conviction had to be invalidated before he could sue over them. And that didn’t happen until he was pardoned”

    Pardons don’t “invalidate” a conviction, they are an exercise in mercy.

    One does not have to be innocent of anything, the guilty also get pardons.

    1. That seems like a semantic distinction. A full pardon can restore a person to the same position as if no offense happened. Does that “invalidate” the conviction? That’s semantics, right? You could say it does (because it restores the pre-conviction status quo), you could say it doesn’t (because the conviction still “happened”).

      1. Its not semantics, a court can void or overturn or expunge a conviction, the executive cannot.

        The conviction stands, the pardon affects only its affects.

        1. I’m not sure that’s right, Bob.

          For instance, if a form says “have you ever been convicted of a felony”, I am not sure the pardoned felon is required to answer “yes”.

          1. I’m sure; such a person does NOT have to say they’ve been convicted of a felony, and if they do on a form 4473 it’s a huge pain in the ass to fix it.

            But Bob has a point – a pardon isn’t an invalidation, it’s an undoing (potentially, at least). The conviction could have been valid (see: Joe Arpaio) while the executive thinks it’s improper nonetheless (see: Trump pardoning Joe Arpaio). The problem, however, arises from an inability to reopen a criminal case once it’s “final” even if the incarcerated learns of new information that was always in the governments possession. If they were to reopen the criminal case they could get charges dismissed, retried, acquitted, etc, but we don’t allow that. And since you have to be exonerated before seeking compensation for falsifying evidence against you, you’re stuck in a position where you must seek discretionary pardons to enable you to prosecute the (alleged) actual malfeasor – the corrupt cops and prosecutors.

            Part of the solution to that mess, of course, must be actual prosecutions of government malfeasance, with the power to undo their misbehavior. Judges could step in to quash bad acts, but they choose not to, indicating that we need a systemic component added – a Prosecutor of Government, rather than merely a Prosecutor for Government. Then just wait until that gets captured too, but it’s at least another check on corruption.

            1. On a form 4473 you can answer “no”, but that is not because there is a generally applicable principle that pardons rewrite history, it is because of explicit exemptions in 18 USC §921(a)(20)(B) and (a)(33)(B)(2).

      2. It does not invidate a conviction with respect to monkey business by the government so he can sue.

    2. IIUC the goal is to prevent collateral attacks on convictions. A lawsuit over a pardoned conviction isn’t a collateral attack.

  2. How much of a pussy would you have to be to sue someone who called you a pussy? Riddle me that

    1. Not much of a pussy, since he was precluded from any legal violence due to the nature of their relationship (teacher/student), and he can’t challenge him to a duel or anything.

    2. I had always assumed that the insult “pussy” stemmed from the term ‘pussy cat.’ As in, “You’re so meek and mild, you remind of of a pussy cat.” Does the insult actual come from a woman’s vagina/genital area? [Fun fact: “cunt” probably is an English street word that came from the very-unfortunately-named Gropecuntlane, a province once known for its sex workers. I mean; if you’re gonna have sex workers, and if they’re gonna congregate in one area, you’d be hard-pressed to pick a clearer name than one that includes cunt and grope.]

      1. “Fun fact: “cunt” probably is an English street word that came from the very-unfortunately-named Gropecuntlane”

        According to wikipedia, it’s the the other way around. Streets where prostitutes congregated were named things like “grope cunt lane.”

        1. Hmmm, there appears to be a lack of consensus on this. (I wish I knew how to easily insert hot links, like you did.) I had heard it the opposite way, and here’s one article’s cite to that. (it’s near the bottom of the article)

          https://www.glamour.com/story/origin-of-the-word-pussy

          1. Huh. Your article links to an etymological dictionary that gives “Gropecuntlane” as the first known reference to the word, not its origin.

        2. Since there are cognates in modern Germanic and Scandinavian language which appear to be traceable at least to the proto-Germanic kuntǭ and possibly the Latin cunneus, I think “probably” is overstating the case.

          1. Fair enough. I change my original post to: Possible-but-apparently-less-likely-than-I-thought fun fact. 🙂

        3. Don’t know the history of the word, but my favorite typo of all time (on a clerk’s docket sheet that was transmitted to the Court of Appeals as part of the record no less) was “Motion to Dismiss Cunts I and II.

      2. Hmmm. Modern English vernacular uses “fanny” for “pussy” similar to the was they use “fag” for “cig” or “cigarette”.

        As a side note, one of our SpecOps guys almost started a brawl because he thought the Brit was calling him gay instead of asking for a cigarette. I was laughing my ass off. My mother was British which thankfully allowed me to stop him and explain the difference.

    3. Maybe these “guys” were confused and didn’t appreciate being outed?

      Hell, I was only 4’9″ as a HS freshman going out for the JV football team and heard a lot more than just “pussy” being used for motivation. It was funny though seeing that word used on 6 foot+ guys!!!

    4. In defense of the kids, the post downplays it a bit. First, the coach had been disciplined at another school (where players “went so far as to file a criminal complaint against [the coach].”) He eventually entered into a consent agreement that preserved his teaching license and coaching permit, but was under state supervision.

      Because of that, his hiring at the new school was controversial. Then, we get this:

      As the 2014 season kicked off, Frye did not relent. On a daily basis, Frye called Chisholm, Lininger, and their teammates various names, including “pussy, bitch, and pretty boy.” Frye also continued to make an example of Lininger, complaining that it was impossible to win with players who wasted their talents like Lininger. Some of Lininger’s teammates even joined in, calling Lininger a “pussy” and “soft.”

      This isn’t just some comment like, “stop being a pussy.” It was directed at a couple kids in particular, to the point that other kids started harassing him as well. The dad complained, the matter was investigated, but the investigation didn’t come out his way. So he sued (unsuccessfully).

      I’m not saying the kid/dad were in the right; I’m saying it sounds a bit more involved than the type of name calling and insults that most of us endured from our football coaches.

  3. Then-U.S. congresswoman raises $800k for her charity, disburses only $1.2k for charitable purposes, spending the vast majority on personal expenses. At trial, the district court dismisses a juror who indicated during deliberations that he’d had a divine revelation that the congresswoman was not guilty on all counts. She’s convicted. Eleventh Circuit (over a dissent): The judge did not err by dismissing the juror. Dissent: The majority misunderstands “the vernacular of a substantial segment of our citizenry,” and its decision will permit eligible jurors who believe God speaks to them to be stricken from jury pools.

    The dissent is being silly here. This is no different than what we demand of judges: there’s nothing wrong with a judge having a personal opinion on capital punishment or abortion, so long as he or she is willing to follow precedent.

    Similarly, there’s nothing wrong with a juror holding a religious belief that he or she talks to God. The problem only comes when that is brought into deliberations and expressed as a rationale for deciding the case.

    1. The dissent is spot on. Many people believe that their insights and inspirations come for God. But they are not talking to God, they are just thinking.

      1. 12,
        Huge difference between (1) someone who claims a divine inspiration in general, or relating to some “non-legal” matter, and (2) someone who claims divine inspiration on a matter at issue in court. Now, if someone who said that God told him to convict in this matter had been kept on the jury, while anyone who claimed God told them to acquit had been dismissed, then there is a clear violation.

        1. The juror heard the evidence, and after hearing the evidence she felt that the defendant was NG. Many religious people believe that such intuition comes from God.

          The problem here is that too many people live in a bubble, without exposure to different kinds of people.

          1. I agree 100% = Many religious people believe that such intuition comes from God. The problem here is that too many people live in a bubble, without exposure to different kinds of people.

          2. TwelveInch, I was raised among the kind of religious people you mention. I have twice been on juries with them. Folks like them, when they think their opinions are God’s will, resist paying much attention to evidence from lesser sources.

            Defendants have a right to consideration of all the evidence, by all the jurors, and also a right to expect jurors to be open to deliberation. To think otherwise is to affirm prejudice. Worse, it positively invites jury participation by paranoid schizophrenics, if they believe (as they often do) that God ordains their delusions. You ought not burden the jury selection process with separating paranoid schizophrenics from the others, especially when the relevant distinguishing principle of both groups is essentially identical.

            1. And how, pray tell, do we identify “ Folks like them?”

              Perhaps it’s as simple as asking if they think God gifted them the power of deduction, and then finding that they came to a different conclusion than you?

              I too have known such people, but setting aside those often easily identified as touched by the gods, they put that to practice by meditating on the correct outcome (they call it praying and asking their god for help, but I’ve seen their fMRIs and they’re indistinguishable from meditation).

              1. Robert, people who rely on reason and evidence usually have no problem, and little reluctance, to show that they do so. Anyone doing that is probably okay on a jury. There are enough of those that it is not impractical to insist on them for jurors.

                Anyone reluctant to do that, and be seen doing it, is a bad risk. Of course, if your would-be juror is sitting there muttering, “God will judge him, let’s send him to God,” that would tell you something too.

      2. I don’t mind if their inspirations come from God, and I don’t even mind if they talk to God.

        The problem is that it doesn’t belong in a jury deliberation. Any more than “the tarot cards told me that the defendant is innocent” belongs in one.

        1. My initial reaction was the same as Dilan’s, but I wonder.

          Two questions come to mind:

          1. Suppose he said he just had an intuition, a feeling – no revelation involved – that the defendant was not guilty, or perhaps just erred in his interpretation of some piece of evidence and could not be made to understand his mistake?

          2. When did the revelation take place? After hearing the evidence, or before? I know he announced it during deliberation, but when did it happen. If before the evidence was complete then he should be disqualified. If during deliberation then maybe not.

          (IANAL question: How does one refer to the part of the trial where the two sides present their cases, apart from the deliberations?)

          1. ” How does one refer to the part of the trial where the two sides present their cases, apart from the deliberations?”

            There are two places where this happens… in the beginning, and at the end. In the opening argument, the prosecutor lays out what they intend to prove and (in general) how. They’ll tell you that witnesses saw them arguing, then witnesses heard gunshots, then they found the defendant standing over the body with the smoking gun lying on the floor nearby. At closing argument time, each side gets to sum up what evidence was provided (by both sides) and what they want you to think it means. Here is where the defense will get it’s chance to say they were arguing over the victims decision to attempt suicide, and how the defendant couldn’t talk the victim out of it, and how nobody testified that they saw the defendant holding a gun, and nobody saw the defendant holding a gun, and… whatever else they can think of the suggests reasonable doubt.

            1. Thanks James, but I wasn’t clear.

              I meant the whole business, from beginning to end, except for the jury’s deliberations.

              1. Oh. That’s called the “trial”.

                1. Sounds stupid, I know, but that’s what I was wondering. As a matter of definition, are the jury deliberations considered part of the “trial” or not?

                  You say they are not. Thanks.

                  1. There’s no real answer to your question. One would certainly routinely describe the process from beginning up to sending the case to the jury as the “trial,” but at the same time, nobody would say, “The trial is over” before the jury has ruled. (Indeed, even after the jury rules the trial continues; we talk about the “sentencing phase” of the trial.)

                    I can’t think of a specific phrase one would use solely for the time period you’re talking about. Courtroom proceedings, maybe?

                  2. “As a matter of definition, are the jury deliberations considered part of the “trial” or not?”

                    Depends on who you ask.
                    Note, however, that it is common to say someone was “tried and convicted” or “tried and acquitted”, which suggests that these are two different things.

          2. The Court actually talked with the juror and asked several different times and several different way if the decision of the juror was based on the evidence.

        2. “The problem is that it doesn’t belong in a jury deliberation. Any more than “the tarot cards told me that the defendant is innocent” belongs in one.”

          The issue is not her talking to God, but God talking to her. There’s no tarot cards involved, it’s just how religious people describe intuition. And “moral certainty” in the form of intuition is what’s required to convict somebody.

          1. That’s wrong. Describing an intuition as coming from God gives it extra weight. And it may prevent the juror from giving a reason for it.

      3. ” Many people believe that their insights and inspirations come for God.”

        And?

        Jury instructions tell the jurors to listen only to evidence presented in court. If God were to, say, make the prosecution table burn but not be consumed, and then speak to the assembled proceeding, I don’t think there’d be an objection to taking that into account during deliberations.

        1. “And?”

          Sigh.

          And their insights and inspirations don’t really come from God. They’re just insights. And jurors are allowed to decide based on their insights.

          1. “And their insights and inspirations don’t really come from God. They’re just insights. And jurors are allowed to decide based on their insights.”

            Not one, ever, came from some other source?

      4. If you read the decision, you’d know that they actually questioned him to find out whether it was guidance/intuition or if he was making the decision based only on an outside party with no basis in the evidence and found that it was the latter, which is a fairly common reason for dismissal from my understanding. Perhaps they found that wrong, but it wasn’t just the judge; the rest of the jury was also uncomfortable and thought he wasn’t being reasonable. Part of that stems from the fact that he gave that line after the first charges but before everything else, so before hearing most of the evidence.

        1. “If you read the decision, you’d know that they actually questioned…”

          I read the decision. It’s utterly ignorant. As I said, The “divine revelation” is just what religious people call the moral intuition that we ask jurors to decide cases.

          Imagine the judge asking, “OK, so after hearing the the evidence you have this powerful moral intuition that the defendant is innocent. Do you think you could put your moral intuition aside and vote to convict based on the evidence despite this?” It’s nonsensical.

          1. You basically just described death qualification of jurors in a capital case. Jurors are routinely asked whether they can abandon their morals when it comes to the death penalty and follow the law by deciding guilt/innocence and then aggravating factors/mitigating circumstances based only on the evidence presented in the case.

            I happen to think that’s generally not good because it inevitably leads to juries with a higher likelihood of reaching a death verdict, but it’s not exactly “non-sensical.”

            1. This isn’t such a case.

              But in any event, if you wanted to make an on-point analogy, a juror who said that God told him to avoid the death penalty regardless of whether or not the aggravating factors outweighed the mitigating factors (or whatever the legal requirements are) could of course be removed.

              But removing a juror who said that God told him that the mitigating factors outweighed the aggravating factors would be equally nonsensical.

              1. No it wouldn’t. Because whatever God told the juror is not in evidence and cannot be evaluated or contested by other jurors.

                1. Do you literally believe God did tell the juror something, and that’s outside influence? I don’t, and therefore it’s not a case of outside influence.

                  “Something just clicked and I realized….”
                  “Then the lights came on and I figured out….”
                  “Then God opened my eyes and it was clear….”
                  “Something in my gut told me….”

                  There is no click, there aren’t light bulbs in the brain, there is no God, and the gut does not have vocal cords. They are all equally uncontestable. I don’t see any reason to single out the third one.

                  1. In a world where people believe, God is an authority whereas human intuition may not be.

                    1. People who believe in God believe that God is omniscient. People who believe in intuition do not think that intuition is omniscient.

          2. Imagine the judge asking, “OK, so after hearing the the evidence you have this powerful moral intuition that the defendant is innocent. Do you think you could put your moral intuition aside and vote to convict based on the evidence despite this?” It’s nonsensical.

            TwelveInch, it would not be a nonsensical question if it were addressed to me. I distinguish conclusions I reach by intuition from those I reach by evidence. I once had occasion to do so on a jury, in a small-town county courthouse.

            The case had to do with a night-time burglary, committed within sight of my own front door. The cops caught the burglars in the act. In the morning, the aftermath was still under investigation, with a pickup loaded with loot from the store sitting in early-morning sunlight out front, while the cops poked around. That sight, which I wandered over to photograph, gave me my first exposure to the case.

            Later, when (as a newspaper reporter) I investigated the story, I found out more. Then, (as a newspaper editor) I wrote an editorial on the basis of what I had found out, saying that I hoped the law would throw the book at the suspects, and discourage others from coming to town to do the same. In writing that, I had no inkling who the suspects were. I intuited their guilt without knowing them, from what I saw, and from the fact that the cops said they were caught in the act.

            I could have been wrong with regard to the participation of any of the 3 under arrest. I did not know any names, did not cite any, and wrote generally, to avoid defamation. I knew I was guarding against mistaken intuitions at the time.

            To my dismay, I was called for the jury. When I was under examination, the defense lawyer, whom I socialized with from time to time, heard me reiterate my previous involvement in detail, including the photograph, the story, and the editorial. Then he asked me if I could put it all aside and decide the case based only on the evidence presented in court.

            That took me by surprise. Like everyone else in the court, I had expected to hear, “Excused.” I thought it over for a while, and then answered honestly that I could. Nevertheless, it surprised me again when the defense lawyer left me on the jury.

            The prosecution did a thorough job, the case was not close on the evidence, but two notable drinkers on the jury were giving considerable weight to a claim that the defendant was too drunk at the time to have formed a criminal intent. Otherwise, the evidence convicted the defendant. And he was convicted.

            Afterward, I asked the defense lawyer why in god’s name he had put me on the jury. He said, “Because the case was a long shot, and you were one of the few people in that jury pool who I knew understood what it means to convict on the basis of evidence beyond a reasonable doubt.” I chose not to tell him I was the juror who persuaded the hold-outs to convict.

            The looted store was a high-end place, stuffed with costly American Indian artifacts, rugs, jewelry, etc. The problem was that the amount of drinking described was inconsistent with the amount of work the burglars had done. The pickup, when discovered at the scene, was piled high. Loot towered precariously above 4-foot-high plywood side panels. And the evidence showed that was not the first load. Two other loads had previously been carted back to the defendant’s rented place, and unloaded there. The store was utterly cleaned out, nothing but empty display cases left in it.

            The defendant had told the cops that he and his accomplices had started drinking at 10 am the previous morning, and kept at it steadily while they prospected in old mine works, on a bear hunt. Then they had drunk through the night. He couldn’t even remember being arrested.

            I asked the jury hold-outs, “If you hired 3 guys to do the moving work these guys did, and they all turned up as drunk as claimed, could you have got that much work out of them between 2 a.m. when they started, and 4:30 a.m. when they were arrested?” Nobody on the jury thought that could happen—maybe especially not the notable drinkers.

            So in your view, TwelveInch, is that a tale of evidence, or intuition? Or are they both the same?

          3. I don’t know precisely what you mean by “moral intuition.” We do not ask jurors to use any such thing to decide cases. We ask them to use their intellects to evaluate the evidence. (And then we all agree to adopt the legal fiction that one can find twelve people in a community who all use their intellects.) The question is whether they think he’s guilty, not whether they feel he’s guilty.

            (It’s true that “beyond a reasonable doubt” is sometimes described as a “moral certainty,” but that’s mostly because nobody really knows how to define it in a helpful way.)

            1. “The question is whether they think he’s guilty, not whether they feel he’s guilty.”

              No, the question is whether they feel certain he’s guilty.

      5. The dissent gets it wrong. If you read the opinion then you would know the Court asked the juror several times if was basing his decision on the evidence. IIUC even going so far as to ask if the juror had asked for divine guidance based on the evidence. It appears that the Court was trying to get a response that included the evidence and the juror declined to even mention the evidence in the case.

        Our rule of law is based on the evidence, not opinion nor outside influence. Whether it helps or hurts a case, the decision has to be based on the evidence presented.

        1. “If you read the opinion then you would know the Court asked the juror several times if was basing his decision on the evidence.”

          And the juror never said, “no, I’m not basing my decision of the evidence, I’m basing my decision of the word of God” because that would be nonsensical”

          As another commentor pointed out, this is no different than a juror saying that his gut told him that the defendant is not guilty, and the judge finding that that the defendant was incapable of rendering a verdict based on the evidence because he was being instructed by his gut.

  4. I hope conservatives continue to cling to Confederate monuments and causes. It should accelerate the sifting that improves America. It also promotes people getting what they deserve.

    1. A visit from your alter ego, Arthur L Kuckland, is needed.

      1. Because if there is anything this site needs, it’s less liberal-libertarian mainstream content and more disaffected right-wing content.

      2. I thought his/hers/its alter ego was also RAK, Royal Arse Kisser!

  5. The guard orders him to sit. Then stand. Then sit. Then stand. When the inmate asks what’s up, the guard pepper sprays him, slams him on the ground, pulls down his pants, and forces a finger up his anus.

    How much does a pro mistress charge for this?

    1. My intended response to that case was going to be the comment: “Worse version of ‘Musical Chairs’ ever!”

      1. um, ‘worst,’ not worse [grumble grumble, lack of edit function, grumble grumble . . .] 🙁

  6. I am not sure I follow the reasoning of the court in the child abuse case.
    “In support of this position, Boland cites to our statement in Boland II that “[w]hen he created morphed images, he intended to help criminal defendants, not harm innocent children.” 698 F.3d at 885. So, Boland asks, how could he have willfully and maliciously injured children he never intended to harm?
    The answer is substantial certainty. Section 523(a)(6) only requires the debtor to be substantially certain that an injury will result from his conduct.”

    For Borland to have been reasonably on notice that his (dreadful!) behavior would cause harm to the two minors, he would have had to reasonably know: (a) That prosecutors would track down the identities of the two minors, although all evidence suggests that no offending image was ever released to the public (via the internet, etc), and (b) those prosecutors would then tell the minors’ parents about this situation.

    In regular cases of child porn, we have images that the public can see, so there is a non-zero chance that someone out in the general public will see the images and will say or do something to the minors (even after they are adults) that will cause those victims to suffer. Or that the minors themselves will later see those images and of course suffer greatly. That makes logical sense to me.

    But I do not see those risks in this particular case. A sealed case, where there is essentially no risk of the images being released . . . it seems like these prosecutors did far more to case emotional harm by deliberately informing the minors and the minors’ families.

    (Note: Borland *did* do one thing–deliberately not deleting the images from his computer and then sending that computer over state lines to his mother–that easily could have changed my mind on this…these actions do increase the possibility that the offending images could make their way to public consumption. But the appellate court did not care at all about this . . . at least; it did not talk at all about it in its opinion as having any impact on its ruling, which was really really odd to me.)

    1. I don’t understand (from a legal point-of-view; IANAL) why child porn itself is illegal to make or posses, when no other crime has the same problem. Surely people have taken videos of rapes and murders by now; has anyone ever been prosecuted for making the videos or possessing them or viewing them? It is even illegal to simulate child porn with young-looking adult actors, and even in cartoons. But Hollywood has been doing that since the beginning.

      1. Dry up the market theory. Punishing possession will deter people from consumption and ultimately production of the illicit product. Each new hand the child porn comes across increases the harm to the subject child. Snuff films are similarly illegal (I believe)

        “It is even illegal to simulate child porn with young-looking adult actors, and even in cartoons.” Not sure if true

        1. Not after Ashcroft v Free Speech Coalition.

          1. Is Karen Fletcher available for comment?

        2. Sorry I should be more clear. Ashcroft held that simulated child sexual imagery can’t be banned under the First Amendment. I don’t know about the legality of snuff or rape films as such or if there are distinctions as to why they can’t be prohibited under the First Amendment.

        3. That’s not my question.

          Why not for other crimes? Surely your answer applies to all crimes.

        4. If you must know, there is an entire genre of drawn pornography. Since much of it is Japanese, a lot of the subjects are high schoolers, and presumably under 18 (age of consent is 14 in Japan). It’s legal as no real people were harmed.

          On the other hand, Canada notably arrested a man for ordering a sex doll from Japan in child size. There was a lot of concern about it, as clearly no child was harmed in the creation of the robot. In the end, the verdict was not guilty, but clearly stated that it was child pornography.

          https://www.cbc.ca/news/canada/newfoundland-labrador/kenneth-harrisson-not-guilty-1.5146259

          Caveat Emptor, my friend.

      2. “I don’t understand (from a legal point-of-view; IANAL) why child porn itself is illegal to make or posses, when no other crime has the same problem. Surely people have taken videos of rapes and murders by now; has anyone ever been prosecuted for making the videos or possessing them or viewing them?”

        The logic works like this: People who want to have child porn really want to have child porn. The only way to have child porn is to harm children*. Therefore, having child porn is harmful to children. From there you go to: people who have an interest in child porn but who have no child porn want to get some, but they can’t buy it. So, the people who have some will trade with others. If you don’t have any already, though, you have to make some in order to have something to trade. There’s no way to make child porn is to harm children*, so trading child porn is harmful to children, too.

        * this is the fundamental assumption of criminalizing child porn. It isn’t true, but it FEELS true. The other tool in the toolbox is excessively broad definitions of child porn, rather than narrowly defining it, but when people think about it, they think of the worst. By which I mean, 17-year-olds are considered “children” and “porn” includes a lot of things beyond graphic depictions of sexual behavior. The prudes who wanted to criminalize ALL porn back in the 80’s lost that war, but retrenched and are standing firm. They also somehow got away with labeling a bunch of things as “sex crimes” even though the crimes have no sex in them (things like charging a guy who goes out the back door of a bar at closing time and pees in the alley with “indecent exposure”. I’m not saying that we should encourage this behavior, but it’s not a “sex crime’, either)

        1. Same answer: not my question.

          Why only child porn? Why not other crimes?

          1. Because you can make a picture of a “rape” that doesn’t harm anybody? And of a “murder”? And of an “assault with a deadly weapon”? For any kind of crime you like, you can make photographic representations involving only willing participants. But by definition, a child can’t consent to engage in child porn.

            1. Rape, no because a tautological condition is that at least one of the participants wasn’t willing.

              Murder, sure, just because you consent to it doesn’t make it lawful, there’s even an HBO movie about that doctor.

              But it’s possible it make child porn without causing harm. Hypothetical: Bank has security cameras prominently posted. The most horrific child rape occurs in front of them, very explicitly. Was a child harmed by the rape? Absolutely, whether you think there’s a magical moment where one instant you’re incapable of consent and the next you are or not, this is the horrific kind. Was the harm increased by the recording of it? No: all of the harm was done to the child at that moment.

              But you proclaim: what about when the prosecutors tell the child of the recording, won’t they be harmed again!? Yes, but it’s the prosecutors actions harming the child, not the recording or possession. How do we know? Just have the prosecutor lie. If a prosecutor falsely tells a child of such a possession the harm is identical to an actual possession. Ahhh, but what about a viewing, you say? That has the same answer as how many angels can dance on the head of a needle. What if the viewing is by someone who is brain dead? We know the photons are triggering their synapses, but they’ve been almost entirely lobotimized and are incapable of any voluntary action, and the child never learns of it, still harm done to the child in the viewing?

              No, this is one crime where our morals fail us, caused by collective severe revulsion. Because it’s so heinous we’ve let our morality falter; we no longer seek justice, but vengeance on anyone involved.

              1. “Rape, no because a tautological condition is that at least one of the participants wasn’t willing. ”

                I refer you to the film “The Accused”. Not the story of it, the film itself.

          2. There actually are other things it is illegal to merely possess. Illegal drugs for one category. Some ancient artifacts, including but not limited to the bones of some ancient people. Many things made of elephant tusks. Some types of feathers. With kiddie porn you add moral disgust to the equation.

            1. It’s mostly relying on the moral disgust to over-ride logic and impartial legal principles, IMO.

            2. Yet with each of those examples, you, the private citizen, can get an exemption. It may be harder or easier, but a private citizen can get either the appropriate license, or the appropriate authorization.

              I don’t think that’s the case with child porn: only agents of the state can ever touch it, there is no way to get an exemption as a private citizen (or corporation). Even the federal repository of child porn shares hashes rather than actual images, so even if you’re a large network provider you won’t get any exemption.

              1. Look up the federal statute. There’s a safe harbor. It’s not a particularly large one, but it does exist.

      3. Read Ashcroft v. Free Speech Coalition (2002). It held that simulated child sexual imagery that does not actually depict actual children in anyway cannot be banned under the First Amendment. In doing so, it explains the reasons why child porn possession and production with actual minors is illegal and can be banned without violating the First Amendment. That was the conclusion of the Court in New York v Ferber (1982).

        https://www.law.cornell.edu/supct/html/00-795.ZO.html

        1. And why not other crimes?

          1. See above

      4. ” It is even illegal to simulate child porn with young-looking adult actors, and even in cartoons. ”

        Except for where it isn’t, such as in the United States.

      5. I don’t understand (from a legal point-of-view; IANAL) why child porn itself is illegal to make or posses, when no other crime has the same problem

        Because (contrary to some urban legends) there isn’t a major social problem of people committing other crimes for the purpose of sharing photos or videos of them. If that started to become a trend on the scale of child pornography, I’m sure you would see responsive legislation.

        It is even illegal to simulate child porn with young-looking adult actors, and even in cartoons.

        At least in the United States, it is most definitely not.

        1. I’m a little hesitant to ask: what’s the scale of creation of child pornography?

          I’m not sure what a sufficiently low bar is to like any possible answer, maybe somewhere around the child murder rate? No, because creation of explicit child rape content creates a floor – there must be at least this much happening, rather than a description of the actual amount, and I suspect child murder is harder to hide.

    2. A sealed case, where there is essentially no risk of the images being released . . . it seems like these prosecutors did far more to case emotional harm by deliberately informing the minors and the minors’ families.

      Am I missing something? It sounds like he used the images as exhibits or demonstratives in criminal trials, which would typically be open proceedings conducted in front of a jury.

      1. What you’re missing is that in practice, the only people who attend criminal trials are people who are somehow involved in the proceedings (absent the occasional sensational case like OJ Simpson). So nobody else would likely have ever seen or known about these images. Had the FBI not tracked down and visited the girls and their families, nobody else ever likely would have known.

        From a public policy standpoint, I have great reservations about the way this case turned out. That said, it requires an incredible amount of stupid to use pictures of real children. He could have accomplished the same result by using images that were wholly computer generated.

    3. I certainly agree that “Federal prosecutors identified Doe and Roe as part of their investigation and told Doe and
      Roe’s parents what Boland had done” seems to be gratuitously malicious here. The rest of it seems to just be the law….

      1. Federal prosecutors are generally required to notify and consult with crime victims in their cases. One of the reasons for this is so that crime victims can do exactly what they did here and seek restitution from the offender.

        1. But that is itself premised on the assumption that the actions of the accused criminal caused some distinct harm to the minor. If the harm is being told about it then it’s exclusively caused by the prosecutor. Longer explanation above, but under the States theory if the prosecutor lied the minor would be harmed just as much.

          1. Sure but the harm obviously isn’t “being told about it.” Name one tort–one law–that works that way.

            1. “Sure but the harm obviously isn’t ‘being told about it.’ Name one tort–one law–that works that way.”

              Slander. Invasion of privacy. IIED.

              1. No, none of those work that way. I didn’t ask which torts involve speech. I asked which cause of action works like this:

                Defendant injures the plaintiff. Third party tells plaintiff about that injury. Plaintiff now has a cause of action against the third party.

                Neither slander, invasion of privacy, nor IIED creates a cause of action against the third party. Being told (truthfully, of course) about an injury you suffered doesn’t create a new injury, as far as I’m aware. Nor is it true that a person isn’t injured until he knows about it. The bottom line is I’m not seeing how a prosecutor informing a victim of her injury is actually causing a new injury, or “completing” the injury. You wouldn’t say that for a prosecutor truthfully telling a victim his house was burned down. I don’t see how it’s any different here.

          2. The (principal) harm is the dissemination of the images. The prosecutors told the parents of the victims (as they were legally required to do) so that they could seek redress for those harms. (Also, according to an earlier opinion, the parents did not relay the information to the minors.)

    4. “Borland *did* do one thing–deliberately not deleting the images from his computer and then sending that computer over state lines to his mother–that easily could have changed my mind on this…these actions do increase the possibility that the offending images could make their way to public consumption. But the appellate court did not care at all about this . . . at least; it did not talk at all about it in its opinion as having any impact on its ruling, which was really really odd to me.”

      This is a bankruptcy case. So the question wasn’t whether he’s liable, it’s whether there should have been a discharge. Liability was put to bed in some other of Boland’s appeals, apparently.

      “For Borland to have been reasonably on notice that his (dreadful!) behavior would cause harm to the two minors, he would have had to reasonably know: (a) That prosecutors would track down the identities of the two minors, although all evidence suggests that no offending image was ever released to the public (via the internet, etc), and (b) those prosecutors would then tell the minors’ parents about this situation.”

      Well (a) is wrong because of what I said above–apparently there was enough to establish liability without publication beyond the courtroom. But (b)’s wrong for a different reason: If you steal my property and I don’t know about it, I haven’t been injured until I find out? That makes no sense. It would mean sneaky tortfeasors can more easily discharge judgments.

  7. From the 5th Circuit en banc news:

    despite the protestations of Judge Smith who finds the state’s refusal to seek rehearing “astonishing” and the panel decision full of “obvious flaw[s]” (such as referring to the state as “the government,” a term “uniformly reserved” for the feds).

    How the hell did a sovereign citizen nutcase manage to become a circuit court judge?

    1. Judge Smith has been on the Court for ages and despite some wacky moments he seems to be a fine jurist

      1. He’s an utter nutball.

        1. Those aren’t mutually exclusive. Just saying.

    2. I would suggest reading his dissent before making a comment.

      IMO his protestations in the dissent are consistent with the law and prior case opinions.

    3. Since Trump is currently appointing circuit court judges, it’s probably inevitable that it’s only a matter of time until a sovereign citizen nutball does become a circuit judge.

      1. One of my former law partners, now a federal judge, is at least sovereign-curious.

  8. Why does the Sixth Circuit think that the phrase Super Bowl belongs in quotation marks?

    1. Because it’s trademarked, maybe?

    2. I sense that few, if any, judges or courts employ copy editors, let alone strong copy editors.

    3. Because they’re writings need to be intelligible centuries from now. Will a scholar trying to settle some dispute 500 years from now know of the archaic early Terran Empires widespread religious and cultural practice of the superlative bowl? Or should they write it in quotes to better convey that it’s a proper name made up of common words?

      Is that likely in this case? No. Even without knowing the details it’s very unlikely. But something like this is still a good idea, to help future historians better understand where they came from. It’s just this sort of thing we find that sheds light on how to interpret different cultures of the past, like finding a big rock with the rants of a tyrant written in Greek, Demotic, and hieroglyphics helped unlock a culture lost for millennia.

  9. Concerning: “… which would burn gas 24/7/365 days a year”
    Minor point. Please do not use the construction “24/7/365” it is correct to say either 24/7/52 or 24/365. Think about it.

    1. There’s nothing wrong with 24/7 365 days a year.

      1. Yes there is.

        24 hours per day/7 days a week/365 days a year. One of these items doesn’t belong in this list.

        1. Your assertion backed by nothing is as persuasive as it was before.

        2. Well, 24 hours per day, 7 days per week, 365.23 days a year would be more accurate. But rounding down isn’t that big a deal. I don’t think 24/365.23 is going to catch on, but that’s your windmill, not mine.

          1. I’ve seen more and more service level agreements written this way (24/365) because it conveys an always on state (usually followed by some high 9s percentage).

            But the value of 24/7/365 came from an era when it was more likely 7-11/6/365 (between seven am and eleven pm, year round, except sundays) and as that got expanded it became more important to indicate that you were open all week (so the 6 became a 7) just as it had previously been important to indicate that you weren’t open seasonally as so many businesses were in prior years.

            Now just about everything beyond the scale of a sole proprietorship is open 7 days a week (darn you Chic-fil-a for your simultaneous morals and delicious chicken!) so it’s become largely redundant – the default is of course a business is open 7 days a week unless they say otherwise.

    2. Jeebus, thank you. Been making this mistake for years. And I teach dimensional analysis in college courses…

    3. Good point. Also, will it be closed on February 29?

    4. Jeez people, it’s an idiom. There are all sorts of them. Lots of them are inaccurate if you really break them down.

      Smokes like a chimney?!?!? Stop saying that because a chimney puts out wood smoke; he puts out tobacco smoke!! Totally different!!!

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