Short Circuit: A Roundup of Recent Federal Court Decisions

Graffiti destruction, vagrant ousting, and restored voting rights.

|The Volokh Conspiracy |

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

New on the Bound By Oath podcast: excessive fines and the incorporation of the Bill of Rights against the states. Click here for Apple Podcasts.

  • The Affordable Care Act expanded Medicaid availability and minimum coverage requirements but allowed states to seek exemptions for various pilot programs. Arkansas did just that, proposing a plan that would require many Medicaid recipients to work 80 hours per month, among other limitations. Feds: Waiver granted! This plan sounds like it will improve health outcomes. D.C. Circuit: Arbitrary and capricious. The plan restricts Medicaid coverage, but the purpose of Medicaid is to provide coverage. Any incidental health benefits are just a bonus.
  • Owner of dilapidated Long Island, N.Y. warehouses hires "aerosol artist" to brighten the places up. What emerges is a thriving aerosol-artist community that attracts thousands of visitors and high-profile celebrities. Uh oh! The owner wants to bulldoze the place to build luxury condos. The artists sue under the Visual Artists Rights Act to protect their work. While the case is pending, the property owner whitewashes over all of it. Second Circuit: Which was a willful violation of VARA. The trial court's award of $6.75 million in damages ($150k for each of 45 eligible works) was reasonable.
  • Albanian gangsters offer to provide protection to Queens, N.Y. night club owners in exchange for monthly payments. After the crew (including a now-former NYPD officer) is caught, one of the members is sentenced to 18 years. But does one of his crimes—chasing a restaurateur while brandishing a gun—count as a "crime of violence" deserving of a sentencing enhancement? Second Circuit: Yes, yes it does. 
  • Attala County, Miss. police find incoherent, mentally infirm man eating chicken in middle of highway. Per "local unwritten custom of ousting those perceived as vagrants from the jurisdiction," officer takes the man to the county line and drops him off along the highway at dusk. A motorist strikes and kills the man. Fifth Circuit (July 2019): Everybody knows police can't do that. The man's family can sue the officer. Fifth Circuit (same panel, Feb. 2020): Original opinion withdrawn. The officer gets qualified immunity.
  • In 2019, Mississippi legislators enact "fetal heartbeat" bill, making it a crime to perform an abortion after a fetal heartbeat has been detected (which happens somewhere between 6 and 12 weeks of gestation). Fifth Circuit: We recently held that a 2018 Mississippi law that banned abortion after 15 weeks is unconstitutional. So this law must also be.
  • Upon discovering that an elderly Chinese traveler is carrying $5k cash, CBP officer escorts her to secondary screening, moves her bag out of camera view, and swipes the cash. When the woman is cleared to go, she discovers her cash is missing, kicking off a frantic search. Feeling the heat, the officer sneaks the money back into an article of clothing that had just been searched, "discovering" it to the incredulity of all present. Seventh Circuit: And he waived his challenge to the $100k fine he was given. But for completeness, let's tell you about some other unsavory behavior he undertook while out on bond.
  • Man convicted of Minneapolis triple murder when he was 16 is sentenced to three consecutive life sentences with the possibility of parole after 30 years (meaning that he will be in prison for at least 90 years). But wait! The Supreme Court has held that the Eighth Amendment prohibits most life-without-parole sentences against minors, and 90 years without the possibility of parole is the functional equivalent of life without parole. An unconstitutional sentence? Each 30-year sentence is constitutional, says the Eighth Circuit; the fact that he has three of them makes no difference.
  • As Missouri trooper takes college student busted for boating while intoxicated ashore, the handcuffed student falls into the Lake of the Ozarks and drowns. After a prosecutor declines to charge the trooper, a police sergeant testifies about what he views as a cover-up and talks to reporters and the student's family. (The sergeant also posts allegation on Facebook that the prosecutor declined to charge the trooper in order to have the prosecutor's son exonerated in a rape investigation.) Eighth Circuit: Testifying at the legislature is protected speech, but the rest wasn't, so the sergeant's demotion doesn't violate the First Amendment. (Click here for subsequent developments in the case against the trooper.)
  • Displeased with developer who failed to build promised housing on vacant 1,060-acre parcel, Hawaii land use officials revert the zoning back to agricultural use, decreasing the value of the land (according to the developer) from $40 mil to $6 mil. An unconstitutional regulatory taking? Jury: Yes! District court: The state must pay the developer $1. Ninth Circuit: The developer overestimates the diminution in value; it can probably find some use for the "barren, rocky lava flow land" that fits with the zoning. So it's not a taking, and the state can keep its dollar.
  • In 2018, Florida voters approved a state constitutional amendment that automatically restored voting rights to as many as 1.4 million ex-felons who had completed their sentences. Florida Legislature: And don't forget the fines; they have to have paid all their fines, too. Eleventh Circuit: Actually, that keeps indigent people from voting just because they are indigent, which is unconstitutional. Preliminary Injunction affirmed.
  • Seventy-five years ago, the Jaycees built a large cross in a Pensacola, Fla. park to be the site of Easter services, which the city now spends approximately $233 each year to maintain. An Establishment Clause violation? Eleventh Circuit: We used to think so, but SCOTUS told us we were wrong. Concurrence: SCOTUS has also said that the "psychological" harm from seeing a cross isn't enough to confer standing, yet the plaintiffs here allege only "metaphysical" and "spiritual" harm. "And can it really be that I—as a judge trained in the law rather than, say, neurology, philosophy, or theology—am charged with distinguishing between 'psychological' injury, on the one hand, and 'metaphysical' and 'spiritual' injury, on the other? Come on."
  • Young immigrants who have been abused, neglected, or abandoned in their country of origin may be eligible for a special program that will allow them to stay in the U.S. After immigrant rights activists allege that the feds are ignoring that and deporting them anyways, a federal trial court issues a preliminary injunction to stop the deportations and require the gov't to alert plaintiffs' counsel within 14 days if it takes any adverse action against a class member. Surprise! The feds deport five class members, and plaintiffs' counsel only find out months later after discovering it themselves. N.D. Cal: Contemptible and contemptuous. Bring the deportees back by the end of the month or pay $500 per person per day. (via @steve_vladeck)

In 2014, officers in Grand Rapids, Mich. savagely beat a college student, James King, whom they'd mistaken for a fugitive. Rather than admit they fouled up, police and prosecutors charged James with a series of felonies, and though he was acquitted of each of them, his defense bankrupted his parents. In 2016, James sued the officers, who were members of a joint federal-state task force. But a federal judge dismissed the case, agreeing with the gov't's position that even though the officers were executing a Michigan arrest warrant against a Michigan resident for a crime committed in Michigan (there was no federal crime), they had not abused their state powers because they were acting under color of federal law. Moreover, their abuses of federal law were shielded by qualified immunity. And, because the state provided the federal gov't immunity, the gov't could not be held liable either. Last year, the Sixth Circuit reversed the worst aspects of the district court's ruling and allowed the case to proceed, but the officers have appealed to the Supreme Court. Now represented by IJ, James is asking the Court to put a stop to the immunity shell game that shields task forces from accountability. The Washington Post has the story.

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  1. I detest VARA and the whole concept of moral rights in art.

    1. Agreed. I can’t really fault the legal reasoning of the decision, but that law is horrible.

      1. I can fault it. The law is flagrantly unconstitutional. It prescribed the taking of private property without compensation. Shame on the “conservative” Bush Sr. for signing this crap and other liberal garbage like the ADA

        1. You’ll have to show me where the court went wrong in its discussion of the constitutionality of VARA. I missed it in my skim.

          1. They didn’t discuss it at all, which is the point.

            1. That probably means the issue wasn’t raised. Courts only decide issues they’ve been asked to decide.

              1. That’s BS and you know it. Courts have enormous leeway to rule on issues not before them, and often do.

                1. Can you give me a specific example of a court ruling on an issue that wasn’t before it?

      2. I can fault the legal reasoning. Who owns the work? The owner of the property that either paid or allowed the work to be done on the property or the artist? If the property owner then there is no case; if the artist then that is a government taking by force of law and the government has to pay the restitution.

        1. It’s not a government taking for the simple reason that the work happened AFTER VARA had been passed. The property owner should have known what he was doing. If he had wanted to maintain control, all he had to do was get them to sign an agreement.

          Furthermore, even if he had not realized that at the beginning, there was a way out. He should have acted in good faith, giving the people 90 days in order to remove any work that could be removed (estimated, about half). He had no excuse because one of the artists had already sued the owner to halt the demolition while they investigated it. The owner then brazenly lied to the court about how long it would take to demolish the building (saying that the 90 days would be up before he could proceed) in order to avoid a preliminary injunction. The owner then whitewashed all the artwork in the dead of night. He should be glad he isn’t serving jail time for such flagrant perjury and contempt of court.

          Yes VARA is law with a lot of negative side effects and unintended consequences. It may be unwise. It might be good to remove. You might even have an argument on how it applies to items made before the law passed. However, it’s application in this case is not unconstitutional by any stretch of the imagination.

  2. Regarding the James King case, obviously he should be able to sue the police, but why have the feds not charged the police with federal civil rights violations? Maybe also the prosecutor who tried to send him to prison. There is no qualified immunity for that.

    1. There’s a longer story on Reason’s Latest page. Turns out one of the officers who nearly beat King to death was a federal officer working on joint task force, so they can’t just blame it on the locals.

      1. Right, I get that, but that’s irrelevant to a federal criminal criminal charge of violating someone’s civil rights.

        1. Should and is are two different things.

          But their argument is that they identified themselves as cops (or at least had badges visible) and that he fled and attacked them when they chased him down (it seems like he might have gotten a pretty good bite in at one point). How can you punish the police for kicking the stuffing out of someone who was resisting arrest just because it was an illegal arrest? Clearly he had it coming. I mean, he was walking around in the same neighborhood as a convenience store where a suspected felon buys drinks.

      2. Right, I get that, but that’s irrelevant to a federal criminal criminal charge of violating someone’s civil rights.

  3. “James King” govt trying to railroad another young black man yet again. Only in America

    1. James King is white. Try again.

  4. The no life without parole =cruel +unusual punishment seems pretty contrived. Is there any historical basis for shoehorning a proportionality calculus into 8A jurisprudence?

    1. Remember that it’s “life without parole for minors = cruel & unusual punishment”

      And, yes, there is an awful lot of historical precedent for recognizing that children do not yet have a fully-developed sense of right and wrong and thus should not be held as culpable as adults. There is also a great deal of debate about what age is appropriate to use as the cut-off for this decision. The court took the age-18 threshold as a given. But you asked about the general case and yes, there are lots of precedents saying that we don’t jail 4 year olds even when they do things that would be horrible if adults did them.

      1. Yes I meant minors my bad.
        There is a real category difference between age 4 and 16. It’s not obvious to me that at age 16 you can’t grasp that murdering someone is wrong. And if the standard is brain development the court should just raise the age to 25.

        1. ” It’s not obvious to me that at age 16 you can’t grasp that murdering someone is wrong.”

          Maybe that’s why we treat it on a case-by-case basis, for each 16-year-old, because some have more development, and some less.

          1. But we don’t regarding LWOP or Capital Punishment. SCOTUS has determined those are per se unconstitutional for minors.

            1. Unconstitutional if they are mandated sentences for murder or sentences for crimes other than murder. It doesn’t apply to life without parole for murder if it wasn’t a mandatory sentence.

              1. In theory? No. In practice? Unknown but I’d guess yes. Because what SCOTUS said wasn’t just a procedural thing, i.e. have a hearing and determine if age was a factor, what they also said was the LWOP is unconstitutional for all but “the rare juvenile offender whose crime reflects irreparable corruption.” I would submit that that will almost always remove LWOP as a possibility given that I don’t know how you can possibly show a minor is irreparably corrupt.

              2. And Capital Punishment is per se unconstitutional for minors. Full stop.

                Also unconstitutional if not for murder or a crime against the state full stop regardless of age. Those aren’t premised on the mandatory nature of it.

                1. “And Capital Punishment is per se unconstitutional for minors. Full stop. ”

                  Unless the cop says he feared for his safety or the safety of others because he thought the minor had a weapon. Then it’s just peachy.

  5. “Each 30-year sentence is constitutional, says the Eighth Circuit; the fact that he has three of them makes no difference.”

    In a related case, a defendant who stole $500 was sentenced to have a 1-lb weight placed on his chest for every dollar he stole. There’s nothing unconstitutional about placing a 1-lb weight on somebody’s chest…

    1. And if those punishments were done consecutively (first on, first off, second on, etc.) then there still wouldn’t be an issue. It’s almost like your analogy is inapposite.

      1. You mean after the first 30 years you give him 30 years of his life back, and then start over?

        1. I was pointing out his analogy isn’t analagous as it flips concurrent and consecutive as the worse option

          1. It’s almost as though the analogy wasn’t intended to illustrate the distinction between concurrent and consecutive sentences, but instead to illustrate how punishments that are constitutional in isolation can be unconstitutional in the aggregate

            1. ” how punishments that are constitutional in isolation can be unconstitutional in the aggregate”

              But then pretending that HOW you aggregate doesn’t matter, which makes it useless.

      2. It’s worse if it’s concurrently? But in the prison case, its worse if its done consecutively. It’s almost like you’re deliberately missing my analogy.

        1. No, he’s pointing out one of the reasons your analogy isn’t really analogous. That you choose an analogy to illustrate a point is no reason that others have to agree that the analogy works. That’s one of the problems with arguing by analogy.

          1. This. Thank you

            1. Jesus, you two are pedantic.

              1. People who cry others are pedantic are often making bad arguments. Legal discussions should be as pedantic as possible.

                1. That would be a great point if the they were making legal arguments, rather than offering silly criticism of an analogy.

                  1. He didn’t really make a legal argument either. Just a poor analogy. But if you want one fine. Saying the cumulative effect would result in it being unconstitutional allows the person to commit crimes with impunity after the first couple times. That is obviously not something the constitution would endorse.

              2. I’m not Puerto Rican.

                And peine forte et dure was abolished in England in 1772, so I’m willing to bet that it’s considered a cruel and unusual punishment under the Eighth Amendment. I doubt there’s an exception based on a limited number of rocks, but I’ll leave figuring that out to the people arguing that it’s okay to sentence people to having weights placed on their chest for stealing.

                But pointing out flaws in an analogy isn’t being pedantic. The sentence that TwelveInchPianist is describing is having 500 pounds placed on your chest one pound at a time. The 500 pounds on your chest is what makes it unconstitutional, regardless of whether the 500 pounds are applied one pound at a time or all at once.

                Which is yet another problem with the analogy. There are three separate sentences, for three separate crimes, at issue in this case. Each sentence must be completed before the next begins. He only becomes eligible for parole on the first offense after 30 years. There doesn’t seem to be any guarantee it will be granted, so it’s possible (and perfectly constitutional) for him to spend the rest of his life in prison even just on the first offense. Putting 500 pounds on someone’s chest is unconstitutional. A life sentence with the possibility of parole for a minor is not.

          2. he’s pointing out one of the reasons your analogy isn’t really analogous.

            He’s certainly saying that, but he’s obviously wrong. The consequences of weight increase when they’re simultaneously applied. The consequences of time increase when they’re applied consecutively. The analogy was about components adding up.

            1. Someone figured it out.

            2. No, he’s obviously right. You are just pointing out some of the many differences between time and weight. There’s nothing wrong with treating different things differently, or the same thing differently in different situations. There’s also nothing wrong with rejecting absurd analogies as absurd.

              1. The analogy you’re bucking is a bog standard way to illustrate how additive effects can be more than the sum of their parts.

                Your pedantry is faffing around the edges and not addressing that core point, even as you claim you’ve done so.

                1. “The analogy you’re bucking is a bog standard way”

                  Who cares if it’s a bog standard way of illustrating something if it doesn’t apply in a particular case?

                  “to illustrate how additive effects can be more than the sum of their parts.”

                  No, you fucking moron. Placing 500 pounds one pound at a time is no different that placing 500 pounds all at once. Which is something I’ve already pointed out. The effect is exactly the sum of its parts.

                  “Your pedantry is faffing around the edges and not addressing that core point, even as you claim you’ve done so.”

                  I must have done something really evil in a past life to have to deal with an idiot like you in this one. You haven’t addressed a single criticism of the analogy. You’ve simply put your head up your ass and ignored them so you can pretend to be justified in calling me pedantic. One of the problems with analogies is that intellectually dishonest people like you will insist that their analogy is apt despite all of the differences distinguish it from the situation it is supposed to illuminate.

                  Stick to defending David Post for blatantly misrepresenting cases. He’s the only person on here with worse reading comprehension than you.

            3. But mandating the sentences of the weight consecutively doesn’t result in a problem (if we assume that the singular punishment of 1lb is constitutional) because all sentences can be served and the punishment endured. Mandating the time be concurrent does result in a problem in that concurrent punishments aren’t concurrently felt. 30 years isn’t worse because it is 4 30 years sentences instead of 1. It also doesn’t result in extra time. That means the person can commit crimes with no practical penalty. Kill 1 person 30-life. Kill 2 people fine we’ll allow consecutive and 60-life. But then what? What if he kills a 3rd or 4th or 5th…What is the practical punishment that can be assessed?

              That is why treating consecutive and concurrent the same just because they result in a cumulative punishment in a given situation doesn’t work as an analogy.

        2. I should also point out that he was convicted of three separate crimes because he murdered three separate people. Your example only includes an arbitrary and absurd punishment for a single crime.

          What if he had murdered 45 people, and the court gave him 45 consecutive life sentences with the possibility of parole after just two years? Or what if, instead of killing three people at close to the same time (which appears to be what he did), he killed three people over the course of a couple of years so all of his trials and sentencings were held separately? Would the third trial have to cut him some slack based on his sentences in the first two trials?

      3. Time aggregates linearly. Weight aggregates simultaneously.

  6. “Bring the deportees back by the end of the month or pay $500 per person per day. ”

    Paid by who and paid to who? From a federal govt agency to a federal govt agency?

    1. Nope. It looks like its from the Department of Homeland Security to the plaintiffs’ lawyers.

    2. The “kids” admitted under SIJS are usually human garbage from the third world.

      1. right cause you proved that

        nope, just proved you are a fool

        1. See the statistics on welfare use and criminality of SIJS recipients. It ain’t pretty.

      2. “The “kids” admitted under SIJS are usually human garbage from the third world.”

        And you’re human garbage from the first world, and either way, the law says you get to stay.

        1. I don’t have an 85 IQ like your pet “migrants.”

          1. I didn’t suggest it was that high, either.

  7. The absurd 11th circuit case consists of two liberal Jews, and of the three, one is appointed by Clinton and two are senile carter appointees

    1. Man, those Jews sure are smart. It only takes two of them to fill out a three member panel.

      1. To be fair: if there are 2 Jews; they will have (at least!) 3 opinions on any given matter.

        I think that’s the basis for about 10 different jokes my former rabbi told me.

    2. a fool and an antisemite

      wow

    3. Which 11th circuit case? There are two listed. The voting rights restoration case, or the cross case?

      1. The latter.

  8. re; aerosol artists

    the foolishness was not having any sort of contract with the artists

    had he paid them each a dollar[and a sig on contract saying so]

    dumb for a real estate guy

    1. Either way, having the work whitewashed while the lawsuit was pending was probably not a winning move.

    2. “the foolishness was not having any sort of contract with the artists

      had he paid them each a dollar[and a sig on contract saying so]”

      I don’t think this is correct under VARA.

      1. Perhaps, but that is why lawyers write contracts.

        make specifically so they cannot sue under VARA

      2. There is a specific section under VARA concerning art built into a building. He didn’t even need to pay them a dollar. They needed an explicit contract waiving their ownership rights signed by both them and the property owner.

        This should have been routine. Even if he messed up and didn’t have that, this could have been resolved relatively amicably if he hadn’t acted in bad faith.

    3. It does seem that the developer behaved very foolishly here.

      1. Falls under, “no good deed goes unpunished.”

  9. Concurrence: SCOTUS has also said that the “psychological” harm from seeing a cross isn’t enough to confer standing, yet the plaintiffs here allege only “metaphysical” and “spiritual” harm. “And can it really be that I—as a judge trained in the law rather than, say, neurology, philosophy, or theology—am charged with distinguishing between ‘psychological’ injury, on the one hand, and ‘metaphysical’ and ‘spiritual’ injury, on the other? Come on.”

    Never liked this method of attack from my fellow atheists. Separation of church and state is to keep politicians from using the ample binding power of religion to use government to insinuate its control over people.

    It isn’t about the horrors of incidental exposure to religion, an early case of offense theatrics.

    1. “It isn’t about the horrors of incidental exposure to religion”

      And yet in case after case, this is exactly the sort of thing Freedom From Religion type atheist activists prefer to go after.

    2. I like the phrase “offense theatrics.”

  10. On the Jacksonville cross case, I would personally agree there isn’t standing in these situations.

    But I would also be inclined to agree that a court of appeals shouldn’t overrule its precedent until a case arrives where it makes a difference to which side wins. Losing on the merits and losing on standing are both losing.

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