Short Circuit: A Roundup of Recent Federal Court Decisions

Foreign emoluments, wage histories, and defenestration.

|The Volokh Conspiracy |

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

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  • Has President Trump accepted foreign emoluments (by way of his financial interests in businesses that do business with foreign governments) in violation of the Constitution? The 215 members of Congress who seek to press that case do not have standing, says the D.C. Circuit. Indeed, "their alleged injury is shared by the 320 members of the Congress who did not join the lawsuit—and their claim is based entirely on the loss of political power."
  • Harvard denies tenure to anthropology professor, claiming she's insufficiently published and not a "first rank" scholar. Professor: I was denied because of my gender and as retaliation for my speaking out on behalf of survivors of sexual misconduct on campus. In a 73-page decision, the First Circuit finds the evidence doesn't support the professor's arguments. Not even the department adviser who told the professor to be a "dutiful daughter" (one who didn't complain about gender disparities in course load) to succeed, as that was years before the tenure decision was made and wasn't enough to meet the discriminatory burden. (She is now a tenured professor at Tufts.)
  • The city of Philadelphia bars employers from inquiring about a prospective employee's wage history in setting or negotiating that employee's wage. District Court: Which violates the First Amendment, at least as to making the inquiry. Preliminary injunction granted. Third Circuit: Nope. This case involves only commercial speech, which gets less protection, and the city put forward a ton of evidence to support this policy.
  • Franklin County, Ohio officer has a fractious relationship with the mother of his children, engendering several domestic violence complaints. In responding, police discover that the mother is a registered sex offender. The officer is fired. Officer: You fired me because I associated with the mother of my children, which is an intimate relationship protected by the First and Fourteenth Amendment. Sixth Circuit: Associating with her to co-parent is one thing, but you were fired because you participated in a violent altercation. That's not constitutionally protected.
  • Millington, Tenn. reserve police officer holds himself out as a grandfather figure, befriends families, sexually abuses the children. (He's sentenced to 26 years in prison.) Parents of four of the victims sue the city, three of its chiefs of police, and three of its mayors—they should've done more to prevent this. Sixth Circuit: Claims against two of the chiefs of police can go forward, as they allegedly received multiple reports of the officer's gross behavior and didn't do anything about it.
  • Michigan inmates who seek to abide by dictates of "Christian Identity" religion, which require adherents to remain separate from non-white people while they worship (and at other times), sue prison for (among other things) failing to allow them to worship separately from other religious groups. District court: Which does not violate the Religious Land Use and Institutionalized Persons Act. Sixth Circuit: Reversed. On remand, the prison needs to explain why it can't accommodate their religious practices.
  • Seventh Circuit (Judge Wood, in chambers): I would kindly appreciate it if you would all start reading our @#$%ing rules and procedures.
  • Allegation: Police officer defenestrates man from third story of Chicago building and, to cover up this misconduct, frames the man for gun possession, which leads to eight-year sentence. The conviction is eventually reversed, and the man reaches a settlement with the city over his excessive force claims. Seventh Circuit: And the settlement agreement prevents him from suing several other officers who allegedly assisted with the cover-up.
  • Septuagenarian shoots .30-30 rifle at helicopter flying low over his Clearwater County, Minn. property. Yikes! It's the feds having a look at his marijuana grow. He's sentenced to five years. Eighth Circuit: No need to revise the $20k restitution order to pay for damage to the helicopter.
  • Students sue the University of California system under Title IX, alleging that UC's handling of their individual sexual assault claims and its general policy of deliberate indifference to sexual misconduct created a hostile learning environment. Ninth Circuit: Your individual claims all fail, but the way UC handles these claims does seem pretty messed up and designed to evade statutory disclosure requirements, so that claim can go forward.
  • Allegation: Male corrections officer at Kern County, Calif. juvenile facility repeatedly watches female ward shower, recounts a sexual dream about her, touches her face and shoulders without consent, and tells her that she should leave her boyfriend and "find someone better like him." Ninth Circuit: No qualified immunity for Officer Creepy McGrabbyhands.
  • Allegation: When Tacoma, Wash. police tried to pull over motorist for driving without his headlights on, he led them on a low-speed pursuit to his apartment so that his wife would have the car for work. While the motorist is driving slowly in the parking lot, a police officer runs up to the car, shoots through the passenger window, hitting the motorist in the spine and rendering him paraplegic. Officer: That's not how it happened! He was speeding toward me! Ninth Circuit: You will have a full and fair opportunity to prove that at trial. No qualified immunity.
  • Ninth Circuit: It was unreasonable for the district court to "mechanical[ly]" reduce an attorneys' fee award by 90% just because the plaintiff settled for 10% of the amount he originally sought. The judge needs to give a better explanation. Dissent: Our case law on this is inscrutable, the judge did a good job navigating it, and you're just making more work for trial court judges.
  • "For more than fifty years, private parties have sued states and localities under the [Voting Rights Act] to enforce the substantive guarantees of the Civil War Amendments." Alabama: It must never have occurred to any of those other states that such lawsuits are barred by sovereign immunity. Eleventh Circuit: The VRA abrogates state sovereign immunity. Dissent: But it doesn't clearly abrogate sovereign immunity.
  • Volunteers with No More Deaths/No Más Muertes—a faith-based organization that leaves food, water, and medical supplies in the desert for migrants crossing the border—are charged with entering a wildlife refuge without a permit and abandoning property. A federal magistrate judge convicts them on all counts. D. Arizona: Not so fast! The law burdens their sincere exercise of religion, which triggers the Religious Freedom Restoration Act. Even if the feds have a compelling interest in "preventing Defendants from interfering with a border enforcement strategy of deterrence by death," there are less restrictive ways to go about it. (via @ASFleischman)

Last summer, Melisa Ingram lent her car to her then-boyfriend so he could drive to a barbecue. Later that day, Wayne County, Mich. officers pulled him over for slowing down in an area known for prostitution. He was never charged with a crime, but the officers seized the car and prosecutors refused to release it unless Melisa paid $1,800 plus towing and storage fees. She didn't have the money and ended up losing the car, which has imposed severe financial hardship. "Detroit's forfeiture program is less like a justice system and more like having your car stolen and paying a ransom to get it back," says IJ Senior Attorney Wesley Hottot. "Once police seize a car, there is no judge or jury. Instead, prosecutors give owners a choice. They can either pay the city's ransom or hire an attorney and enter a byzantine process that is confusing, time-consuming, and expensive. The process is designed to ensure that owners fail nearly every time. I've watched this happen time and time again, and never once have I seen an owner successfully make it to court and get his or her car back." This week, IJ filed a class action over Detroit and Wayne County's unconstitutional civil forfeiture program.

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  1. The forfeiture in Detroit is an outrage. The police and the prosecutor involved in this case should be personally liable for reimbursing the victim of this scam.

  2. Volunteers with No More Deaths/No Más Muertes—a faith-based organization that leaves food, water, and medical supplies in the desert for migrants crossing the border—are charged with entering a wildlife refuge without a permit and abandoning property

    Reminds me of cities making it illegal to put coins in someone else’s expired parking meters, except people aren’t dying.

    1. What asshole decided to prosecute these people?

      1. Seriously. Even if you oppose immigration, how could anyone call themselves a Christian and support this particular policy of not putting out food and water in a desert?

        Sorry, no loaves and fish and wine for you! — Hey, Sue

        1. Can’t tell if you’re trying to be satirical but you’re very much understating things.

          It’s a policy of forbidding the placement of those things in the desert, in places where they will save human lives.

          1. I don’t think it’s sarcasm or satire.

            Nice to see Christians taking their beliefs seriously.

        2. What does someone “calling themselves a Christian” have to do with anything here? Agents of the government are not acting as agents of religion and must not impose their religious beliefs when enforcing, or not enforcing, the law.

          Perhaps you are unaware, but not everyone is a Christian – in fact some are even atheists.

          1. As am I…but they are not. Every last (butt) politician who squeaks about Judeo-Christian values, which is all at the top.

        3. Donald Trump calls himself a Christian and receives the support of millions of them. Go figure.

      2. Environmentalists. Gotta protect the native habitat

  3. “…charged with entering a wildlife refuge without a permit…”

    Not to imply that this prosecution is at all sane, but why not just get a permit?

    1. Who knows?

      They’re expensive? Hard to get? You have to give a reason and they were afraid they’d be turned down? etc.

      1. I’ve gotten one. There’s a visitor’s center in Ajo where you have to watch a video about not handling ordinance you find, but they’re not hard to get. Its a pretty neat place.

    2. “… why not just get a permit?”

      It’s not always that easy. Because, if the government seeks to defacto prohibit an activity, the permits are nearly impossible to get.

    3. Because that is only half the battle; you still have to not abandon stuff – – – –

  4. Maybe.

    Were you carrying lots of supplies?

    Can you drive in, which they did, presumably with a loaded vehicle?

    Note that they were charged, among other things, with abandoning property. Wouldn’t they have been “guilty” – I can’t leave off the quotation marks – of that even if they had gotten a permit?

    1. Is it “abandoning” if you fully expect to retrieve the property? (i.e., I assume the volunteers want to go back to the drop-off points, get all/many of/most of the bottles and refill them with water, to be used again). Or were they really charged with abandoning the actual water, since–duh!–there was no expectation of retrieving the water? The mind boggles.

      But I gotta give credit; the abandoning property charge was pretty creative. Evil. But creative.

    2. “Can you drive in, which they did, presumably with a loaded vehicle?”

      Yup. There’s a sandy road that goes through, basically from Ajo to Yuma, about 100 miles. You can camp along the road.

      And they would certainly have been “guilty” of other stuff. I don’t particularly give a shit that they didn’t get a permit, I was just bringing it up out of curiosity.

      1. I don’t particularly give a shit that they didn’t get a permit, I was just bringing it up out of curiosity.

        Yes. I understood that.

        1. Since Americans need a permit to enter the area, I suppose that’s one more law to throw at the illegals entering there, too.

          1. Plus they keep abandoning dead bodies there, too. That’s gotta be illegal.

  5. Those of us who recall (and celebrate) Chief Justice Roberts’ prescription in Parents Involved that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race” will appreciate this citation from today’s DC Circuit per curiam on the Emoluments Clause:

    See Cohen v. Bd. of Trs. of the Univ. of the Dist. of Columbia, 819 F.3d 476, 485 (D.C. Cir. 2016) (The “cardinal principle of judicial restraint” is “if it is not necessary to decide more, it is necessary not to decide more.” (quoting PDK Labs, Inc. v. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment))).

  6. Note that in the Emoluments case, the panel comprised Circuit Judges Henderson (Bush-41), Tatel (Clinton), and Griffith (Bush-43) — all very experienced judges who are widely respected. It was per curiam and without dissents, weighing in at a mere 12 pages in .pdf.

    What the per curiam opinion in the Emoluments case was too polite to say is that the Dems screwed up bigtime here by getting only 215 co-plaintiffs — three less than a majority of the House. From the text accompanying footnote 7:

    For standing, the Members’ inability to act determinatively is important, see Raines, 521 U.S. at 829, and, conversely, the size of their cohort is not—so long as it is too small to act. That is, we assess this complaint—filed by 215 Members—no differently from our assessment of a complaint filed by a single Member.

    So: A majority of the House joining as co-plaintiffs — meaning 218 — regardless of whether they’re Democrats or Republicans, might meet the threshold for standing. There are other possible justiciability problems with the lawsuit, including “political question”; but that would have gotten them past the two precedents upon which the unanimous panel relied.

    This isn’t quite as stupid as expecting Mitch McConnell and the Senate Republican Caucus to build the factual case for Trump’s impeachment, but it’s another stupid, unforced error by Pelosi et al.

    1. Try again next time, with the House as plaintiff. Should be easy to do now.

      1. I see no reason they couldn’t re-file with three additional co-plaintiffs, yup. This isn’t a dismissal with prejudice on the merits.

        1. From what I’ve read on this site over the years, the standing requirement is to prevent clogging and bogging down every law with masses of complaints across the land of 350 million people.

          That principle was always odd to apply when one branch sues another or just wants to raise an issue. Separation of powers might still be an issue, but standing in this sense would not.

          1. I don’t think you’re quite right about the rationale behind the standing requirement, which is part of the case and controversy requirement. The rationale is that only if both litigants are personally touched by the potential results, with a personal stake in them, can both sides be trusted to bring their best efforts and arguments to the court for resolution. Without it, precedents could be set by dilettantes or mischief-makers who might withhold their best efforts and thereby upset the regular workings of the adversary system. Thus:

            [A]t an irreducible minimum, Art. III requires the party who invokes the court’s authority to “show that he personally has suffered some actual or threatened injury as a result of the putatively illegal conduct of the defendant,” and that the injury “fairly can be traced to the challenged action” and “is likely to be redressed by a favorable decision.” In this manner does Art. III limit the federal judicial power “to those disputes which confine federal courts to a role consistent with a system of separated powers and which are traditionally thought to be capable of resolution through the judicial process.”

            The requirement of “actual injury redressable by the court” serves several of the “implicit policies embodied in Article III.” It tends to assure that the legal questions presented to the court will be resolved, not in the rarified atmosphere of a debating society, but in a concrete factual context conducive to a realistic appreciation of the consequences of judicial action….

            The Art. III aspect of standing also reflects a due regard for the autonomy of those persons likely to be most directly affected by a judicial order. The federal courts have abjured appeals to their authority which would convert the judicial process into “no more than a vehicle for the vindication of the value interests of concerned bystanders.” Were the federal courts merely publicly funded forums for the ventilation of public grievances or the refinement of jurisprudential understanding, the concept of “standing” would be quite unnecessary. But the “cases and controversies” language of Art. III forecloses the conversion of courts of the United States into judicial version of college debating forums.

            Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 472-73 (1982)(citations omitted).

    2. Erratum: I actually quoted from the text accompanying footnote 4. (There is no footnote 7.) Apologies for any confusion.

    3. The 215 plaintiffs come from both the House and the Senate. Only 186 members of the house signed on.

  7. The law burdens their sincere exercise of religion, which triggers the Religious Freedom Restoration Act.

    I’m perplexed. So anyone can violate any law if following the law would burden their sincere exercise of religion? A permit was (apparently) required for entry into that area – it was needed regardless of the religion of the person wishing to enter. Were these people claiming that acquiring the permit burdened their sincere exercise of religion?

    If someone’s sincere religious beliefs include a belief that capital punishment is wrong, can they freely and without consequences disrupt court rooms where trials are being held for capital crimes, help those accused of capital crimes escape, and interfere with law enforcement personnel attempting to track down and arrest serial murderers who will be charged with a capital crime?

    1. Not exactly. RFRA is statutory, it’s a guide that Congress says “whenever we make any law on any other topic, unless it explicitly says otherwise, it should be interpreted not to infringe the sincere exercise of religion except (a) furtherance of a compelling government interest and (b) in the least restrictive means of furthering that interest.

      So first off, Congress passed the law in question here (on requiring permits or whatnot) so they have undoubted authority to amend or curtail it in certain cases. In this case, they’ve amended it to provide a particular exception in some cases.

      Second, I think it’s pretty clear that functioning court rooms are a compelling government interest and that removing disruptive members is the least restrictive means of furthering that interest. Similarly, tracking down fugitives is compelling.

    2. “If someone’s sincere religious beliefs include a belief that capital punishment is wrong, can they freely and without consequences disrupt court rooms where trials are being held for capital crimes, help those accused of capital crimes escape, and interfere with law enforcement personnel attempting to track down and arrest serial murderers who will be charged with a capital crime?”

      You get a parallel (somewhat) from the people who helped slaves escape to Canada, back when slavery was legal in the United States.

  8. In the Chicago defenestration case, what business does the city have in including in a settlement agreement a prohibition on suing other parties? And is protecting lying police officers not contrary to public policy and therefore void as a provision of a contract?

    1. Whatever business they have, it’s not a question for the courts.

      It sounds like a question for the city council (or ultimately the electorate) to supervise their legal team’s settlement strategy.

  9. This rule is not a secret. It is clearly spelled out in Circuit Rule 28(a)(2)(v), and this court’s Practitioner’s Handbook for Ap- peals (2019 ed.) is readily available on the court’s public web- site, as the second item under the tab “Rules and Procedures.”

    This is about as close as a Circuit Judge is going to get to just writing “bitch can you read”.

    1. Note that Wood’s citation to her previous order chastising people for not reading the rules is incorrect.

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