Short Circuit: A Roundup of Recent Federal Court Decisions

Fireburn, puppycide, and the DOJ beggars belief.

|The Volokh Conspiracy |

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

This week, the Supreme Court heard oral argument in Espinoza v. Montana Dep't of Revenue, an IJ school choice case. Click here for an account of the hearing from IJ's Nick Sibilla. Or click here to ponder along with Anthony Sanders, the director of IJ's Center for Judicial Engagement, what it means to have the gov't on both sides of the case. Or click here for an IJ podcast that notes, among other things, that the U.S. stands nearly alone among the world's democracies in providing so few educational options—pedagogical, secular, religious, private, public—to families.

  • Zeta drug cartel assassins attack two American agents in Mexico, killing one and injuring the other. After extradition to the U.S., they are convicted of, among other things, killing an officer or employee of the United States and using a firearm while committing a crime of violence. Wait a minute! Do these laws even apply outside the U.S.? D.C. Circuit (creating a circuit split): We generally presume laws don't apply extraterritorially unless there's evidence Congress intended that. There is such evidence for the law about using a firearm but not for the other law. Remanded for resentencing.
  • Operating a website with the intent to promote or encourage the prostitution of another person is a federal felony punishable by 10 years in prison (25 years in some circumstances). A coalition of sex-worker advocacy groups and others worried about running afoul of the law sue, alleging it violates the First and Fifth Amendments. D.C. Circuit: And at least two of them—the founder of a website that allows sex workers to share information about products and services they use and a massage therapist who can no longer advertise on Craigslist—have standing. Concurrence: But the law doesn't reach the sort of pure issue advocacy the other plaintiffs engage in.
  • Federal law bans people from obtaining firearms if they have been convicted of a "serious" crime that carries a potential punishment of over a year in prison. Does that violate the Second Amendment rights of a man who was convicted of DUI in 2005? Third Circuit: The conviction carried a maximum sentence of five years, so no gun for him. Dissent: We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.
  • In 1878, workers in then-Danish colony of St. Croix, Virgin Islands set fire to 50 sugarcane plantations and burn much of the town of Frederiksted to the ground. (Among their grievances: a law that allowed them to change jobs only once a year—on one particular day of the year.) Starting in 2009, a St. Croix legislator obtains $90k in public funds to research the revolt—locally known as Fireburn—for a movie. Yikes! The legislator (who is also the author of a three-volume etiquette guide for young men) spends most of the money on other stuff. Third Circuit: Conviction affirmed.
  • While visiting an inmate in a Virginia prison (who was suspected of running drugs in the prison), woman is observed adjusting her clothes in ways officers deem suspicious. They interrupt the visit to tell her that she must consent to a strip search if she ever wants to visit again. The crying woman is subjected to a full strip search, during which she is required to undress, remove her tampon, squat and cough, and expose her anus. (No contraband is discovered.) Was the search supported by reasonable suspicion? Fourth Circuit (over a dissent): Hey, she admits she touched her clothes; what else do they need to form a suspicion?
  • Allegation: Augusta County, Va. police officer arrives outside woman's home, encounters woman's dog (a German Shepherd named Jax), and shoots the dog in the head. Woman sues. Officer: I reasonably felt threatened by the 150-pound Jax, who was advancing toward me and barking. Woman: Jax was tied to a zip lead, and it was obvious he couldn't have reached the officer. District court: Qualified immunity.  Fourth Circuit: The case must proceed. A reasonable officer would have known that shooting the restrained Jax was unreasonable.
  • "At worst, the officers heard reports that a man fitting Jones's rough description was eating out of a dumpster." So no qualified immunity, holds the Sixth Circuit, for the Elyria, Ohio officers who allegedly frisked, tackled, and tased a compliant Jones.
  • Former U.S. Attorney General Eric Holder receives a voicemail saying, "former U.S. Attorney General Eric Holder, I am going to murder you." Sixth Circuit: Which is indeed a true threat. Conviction upheld.
  • Under Indiana law, if a woman in an opposite-sex marriage gives birth, her husband is presumed to be the child's biological father and is listed on the birth certificate. If a woman in a same-sex marriage gives birth, only the birth mother will be listed on the birth certificate, even if the wife donated the egg. The only way to have both mothers listed on the birth certificate is to go through the adoption process. An equal protection violation? Clearly so, says the Seventh Circuit, though the district court's injunction went a bit too far.
  • An Illinois inmate with a year of miserable rectal pain will get a trial, holds the Seventh Circuit. His evidence—that a prison doctor insisted on treating anal warts rather than the fissure causing the pain—gets him past summary judgment.
  • Seventh Circuit: In which Frank Easterbrook is having none of the DOJ's bull@#$%.
  • Allegation: While jogging through a St. Louis park, man stops to watch police officer conducting traffic stops. Concerned that a "suspicious person" is following her, the officer radios for assistance. When the jogger refuses to disclose his Social Security number to one of the dispatched officers, the officer frisks, cuffs, and detains him for 20 minutes before a supervisor orders the jogger released. Eighth Circuit (over a dissent): Any reasonable officer would know that you can't detain someone just for quietly watching police at work. No qualified immunity; remanded to sort out factual disputes.
  • After years in prison for murder, four Fairbanks, Alaska men enter into a settlement with the state under which their convictions are vacated. (For the backstory, take a look at this informative article about "the Fairbanks Four.") Upon their release, they sue the city and four police officers for all manner of constitutional violations associated with their convictions. District court: No dice; your lawsuit would call into question the original convictions, which is not permitted. Ninth Circuit (over a dissent): Yes dice; the original convictions were vacated, so the case may proceed.
  • Venerable legal news service sues Ventura County, Calif. court over its policy of prohibiting media access to newly filed complaints until after those complaints have been processed, which can take several days. After years of litigation, the court adopts a new policy, under which complaints received before 3:00 p.m. are immediately scanned and made publicly available, while complaints received after 3:00 p.m. are processed the following day. Unsatisfied, the news service challenges the new procedure. Ninth Circuit: The old procedure violated the First Amendment right of access, but the new one is fine.
  • Environmental activists: The gov't has long promoted fossil fuel use despite knowing that it can cause catastrophic climate change. That violates the right to a "climate system capable of sustaining human life," per the Due Process Clause of the Fifth Amendment. We demand a court order requiring the gov't to develop a plan to "phase out fossil fuel emissions and draw down excess atmospheric CO2." Ninth Circuit: We're scared, too, but that isn't something a federal court can do. Dissent: If courts can oversee desegregation orders, they can oversee this. Otherwise, "[w]hen the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?"
  • Property owners decline $56k offer for easement allowing pipeline to bisect their 40-acre Lake County, Fla. property. The pipeline company employs eminent domain, and the pipeline goes in anyway. Yikes! A jury awards the property owners over $300k in just compensation. New trial? Eleventh Circuit: Nope. Pay up.

Are you a law student? Are you on the East Coast? Do you want to learn how to turn an idea into a full-blown Supreme Court case or what the real difference between public interest law and private practice is? Then join the Institute for Justice at our second Legal Intensive—the premier one-day public interest law program. Students will be able to participate in IJ's renowned student programming, including an inside look at our newest cases and cert petitions with IJ lawyers and staff. This event will be held in Arlington, Virginia on March 28, and we'd love to see you there! Click here to learn more and apply!

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  1. I have no opinion regarding the merits of that 4th Circuit case re the search of the prison visitor, but, wow, the description of the facts is somewhat less than accurate:
    “In this case, the record demonstrates beyond genuine dispute that Sgt. Lokey and Unit Manager Brown made the decision to seek Calloway’s consent to a strip search based on a sequence of events that, viewed together, culminated in a reasonable suspicion that Calloway was attempting to pass contraband to Talbert during her July 17 visit. First, Lokey knew that, earlier in the year, Talbert had enlisted his mother to help in a conspiracy to smuggle tobacco into a different Virginia prison. Then, sometime after Talbert’s transfer to Augusta, Lokey started to hear from informants that he should keep an eye on “Travis.” And two days prior to Calloway’s visit, Lokey received a more concrete tip from an inmate that “Talbert was moving,” a term that Lokey knew to be prison slang for drug smuggling. All of this information suggested that Talbert might attempt to have an outside visitor sneak contraband into Augusta, as he had attempted to do at Bland. Thus, it was reasonable for Lokey to direct Officer Nelson to keep a particularly close watch on Talbert and any visitor he received that weekend. Then, in the context of this heightened scrutiny, Lokey received a report from Nelson during the course of Calloway’s visit with Talbert that he (Nelson) had observed Calloway adjusting her waistband in a suspicious manner and, indeed, that it looked to him like she had just unbuttoned her pants while in the visitation room.”

    1. I wondered a bit about what led them to their conclusion, but then I also read that they had found nothing, which seems to me they either were flat wrong and worsened the search in their desperation, or she had already transferred the contraband and they should have been searching the inmate. I see no mention of what they did to the inmate. if they did nothing, then I think the decision proper; and if they did search the inmate and found nothing, then it’s just more confirmation that their search was ill-advised. I suspect that if they had searched the inmate and found contraband, we’d have heard about it and the woman would have been charged and convicted.

      1. You can’t use whether contraband was found or not to decide if the search had suspicion. Otherwise you can justify every search that found drugs as “Well, obviously their suspicion was reasonable, because they found it!” You look at what they knew before they did the search, not require them to predict the future.

        1. I’m saying the reverse: they found nothing, on either person, so their suspicion was unfounded.

        2. You can’t use whether contraband was found or not to decide if the search had suspicion.

          That’s true — but you also can’t justify a search with a vague claim that something “looked suspicious,” a completely meaningless and unfalsifiable statement.

          The fact that no contraband was found certainly calls into question the guy’s ability to discern between suspicious and non-suspicious conduct.

      2. ” I see no mention of what they did to the inmate.”

        The inmate has no right not be be searched, so searching him doesn’t give rise to a lawsuit. That said, had they found something on him, presumably she would be in criminal court as the defendant rather than in civil court as the plaintiff.

      3. “, or she had already transferred the contraband and they should have been searching the inmate. I see no mention of what they did to the inmate.”

        I haven’t spent a lot of time in prison, but my sense is that strip searching inmates after contact visits is common, if not the norm.

    2. “Then, in the context of this heightened scrutiny, Lokey received a report from Nelson during the course of Calloway’s visit with Talbert that he (Nelson) had observed Calloway adjusting her waistband in a suspicious manner and, indeed, that it looked to him like she had just unbuttoned her pants while in the visitation room.”

      What’s the difference between adjusting one’s pants in a suspicious manner and a non-suspicious manner?

      Does adding “in a suspicious manner” to an innocuous activity create suspicion?

      And had she, in fact, unbuttoned her pants?

      All in all, the summary seems fair.

    3. At least with respect to the activity on the video feed, there isn’t articulable suspicion beyond the fact that she was adjusting her clothes.

      Note the weasel wording: “…in a manner that
      “looked [to Nelson] like she [had] reached inside the front of her pants.” and “Based on that observation from the live video feed, Nelson believed that Calloway had just unbuttoned her pants…”

      He couldn’t testify, “I saw her reach into the front of her pants.” or “I saw her unbutton her pants.”

  2. For those of you keeping score at home, one of the Judges in the Fourth Circuit strip search case, Judge King, was also a dissenter in the Trey Sims case. He would have held that it doesn’t violate QI for an officer to obtain and execute a search warrant to photograph a minor’s erect penis. So it’s hardly surprising that he’s less than sympathetic to Fourth Amendment claims involving the privacy of the human body.

    1. “He would have held that it doesn’t violate QI for an officer to obtain and execute a search warrant to photograph a minor’s erect penis.”

      Not just to photograph him, but to sexually assault the minor for the purpose of obtaining the photo.

      1. Correct.

        1. My God…how revolting!!! QI has to go! = Not just to photograph him, but to sexually assault the minor for the purpose of obtaining the photo.

        2. Oh, it’s worse than that. The detective involved later committed suicide after it came to light that he was a serial molester of adolescent boys.

          1. The prosecutor who helped secure the warrant is still a prosecutor. The magistrate who issued the warrant wasn’t even named and shamed in the Fourth Circuit opinion.

  3. “We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.”

    Well, then, this poor sod picked the wrong jurisdiction to drive drunkenly in, then, didn’t he?

    1. That isn’t the point. The burden should be on the state to prove why a particular conviction should void a person’s Constitutional rights forever. They never do, and the courts stacked with leftists are happy to oblige.

  4. Some background statements on the dog-shooting from the Commonwealth Attorney’s investigation.

    1. And those self-serving statements in the police department’s press release deserve precisely the weight that they were given – none whatsoever at the motion to dismiss stage – and not very much once this finally gets to the actual trial.

      1. But the shooter said he was justified. What more do you need?

  5. After extradition to the U.S., they are convicted of, among other things, killing an officer or employee of the United States and using a firearm while committing a crime of violence. Wait a minute! Do these laws even apply outside the U.S.? D.C. Circuit (creating a circuit split): We generally presume laws don’t apply extraterritorially unless there’s evidence Congress intended that. There is such evidence for the law about using a firearm but not for the other law. Remanded for resentencing.

    So killing a federal employee outside the US isn’t a federal crime, but using a gun in a crime of violence outside the US is?

    I guess every murderer and bank robber around the world is subject to US law regardless of the nationality of the victim?

    1. Yeah, that sounded kind of backwards to me too…

    2. No. 18 U.S.C. § 924(c) criminalizes using a firearm during a federal crime of violence (or a federal drug trafficking crime).

  6. Former U.S. Attorney General Eric Holder receives a voicemail saying, “former U.S. Attorney General Eric Holder, I am going to murder you.” Sixth Circuit: Which is indeed a true threat. Conviction upheld.

    “You don’t really mean you’re going to kill him, do you?” — Henry Fonda, to a raging man out of control and moving to attack a guy imminently and had to be restrained, 12 Angry Men

  7. Federal law bans people from obtaining firearms if they have been convicted of a “serious” crime that carries a potential punishment of over a year in prison. Does that violate the Second Amendment rights of a man who was convicted of DUI in 2005? Third Circuit: The conviction carried a maximum sentence of five years, so no gun for him. Dissent: We all agree that DUIs are serious, but his exact crime would lead to a federal prohibition on gun possession in only 8 of 51 jurisdictions.

    I think I am on the side of the NRA on this one. Drunk driving is terrible, but I would think taking the Second Amendment seriously would mean that if you want to strip someone of their gun rights, the underlying offense should be something that evinces that it would be dangerous to allow the person to have a gun.

    DUI may sometimes be a felony, but it doesn’t fall within that category. I don’t think that a DUI conviction establishes that the person is the sort of violent hothead that justifies an abridgment of what is a constitutional right.

    1. For the most part, I agree with you. On the other hand, chronic drunks with guns is a really bad idea.

      1. I agree, but again, stipulating that this is an important constitutional right, it would be much better to require some sort of showing of chronic, irresponsible drunkenness rather than simply a DUI conviction, which could be an isolated incident.

  8. ” If courts can oversee desegregation orders, they can oversee this. Otherwise, “[w]hen the seas envelop our coastal cities, fires and droughts haunt our interiors, and storms ravage everything between, those remaining will ask: Why did so many do so little?””

    They may, but I doubt they will be saying that about THE COURT SYSTEM.

    1. The courts have no authority to order the impossible. There are no viable options to do what the plaintiffs want without building hundreds if not thousands of new nuclear power plants along with a massive upgrade to existing electric power grids.

  9. I love the 3rd Circuit case involving the US Virgin Islands. After the jury reached a verdict, the court found that juror no. 8 had a limited ability to comprehend English. I have to wonder how that juror got through voir dire. Oh well, Judge Gomez handled that case correctly.

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