Short Circuit: A Roundup of Recent Federal Court Decisions

A cold prison, a suspicious suicide, and federal advisory committees.

|The Volokh Conspiracy |

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

New on the Short Circuit podcast: cert petitions, a prison shank public records request, and an arrest for being a smart mouth. Click here for iTunes.

  • For years, scientists could serve on EPA advisory committees while also receiving EPA grants. In 2017, the EPA put a stop to that. A group of scientists sues. Scientists: By excluding the many scientists who rely on agency grants, the EPA has ensured that an uneven number of advisory committee members now hail from regulated industries. That violates the Federal Advisory Committee Act. EPA: The courts can't review any of the scientists' claims. First Circuit: Yes we can. The case can proceed.
  • The feds give out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from so-called sanctuary cities and states that refuse to share information with the feds about, or allow them access to, arrested undocumented immigrants? Siding with three other circuits, the First Circuit says no. (The Second Circuit created a split last month.)
  • Somerville, Mass. police officer is forced into retirement after the dep't learns he is nearly blind in one eye. First Circuit: Could be a violation of the Americans with Disabilities Act, among other things. In his 19 years of service, his monocular vision never seemed to have caused a problem, and, though the dep't claims high-speed pursuits are an essential element of his job, that may or may not be true, and in any case he may be able to safely conduct such pursuits. Back to the district court for more fact-finding.
  • Public defenders sue the feds after access to their clients in Brooklyn, N.Y. prison is repeatedly denied on short notice, and, after reports that heating had failed during a period of intense cold, prison officials refuse to provide info on their clients' well-being. District court: The defenders lack a cause of action under the Sixth Amendment; the right to counsel belongs solely to the accused. Second Circuit: Not so fast. The district court needs to give that claim, plus another about whether prison officials violated Bureau of Prisons policies on attorney-client visits, a closer look.
  • Outside the trial of a Baltimore gang leader who allegedly murdered a witness, some of the defendant's friends hold up their cell phones near a juror. She tells the other jurors, "guys, this is really serious, they're taking pictures of us." The judge investigates, thinks nothing happened, and dismisses the worried juror. The remaining jurors convict. Fourth Circuit: Dismissing the worried juror was not enough. The judge must hold a hearing to decide whether other jurors were afraid of gang retaliation—and thus possibly biased against the defendant. Dissent: It was just cell phones.
  • Man is shot in the chest while handcuffed in the back seat of a cop car. He dies. Iberia Parish, La. police say he committed suicide and that they must have missed a gun when they patted him down. His family sues, and the parties settle. A judge seals the record and makes the settlement terms confidential. Fifth Circuit: No way. This is a matter of local and national concern, and the record should be opened.
  • We may have thrice said police can't conduct Terry stops to investigate mere misdemeanors, notes the Sixth Circuit. But that was dicta; police officers can absolutely do that.
  • Allegation: When the Chicago P.D. conducts investigative stops, officers take people's ID and won't return it until after conducting a warrant check. A Fourth Amendment violation? Seventh Circuit: Papiere, bitte.
  • Woman is arrested at protest over Ferguson shooting, released without charge. Rather than returning the $30.97 she was carrying, Multnomah County, Ore. officials give her a debit card that has a monthly service fee (imposed five days after release), a fee for using certain ATMs (with incorrect info as to which machines incur fees), and a fee for requesting the balance of the card by check, among others. Debit card company: There are several ways she could have avoided the fees, like having the funds promptly transferred to her bank account. Ninth Circuit: Her federal law, state law, and Takings Clause claims against the company should not have been dismissed.
  • Goldwater Institute seeks FDA documents related to the approval of an investigational drug for treating Ebola. FDA: Sorry, all documents related to investigational new drugs are confidential. Ninth Circuit: Not from FOIA, they aren't.
  • San Francisco allows owners of units in multiunit buildings to convert to condominiums if they agree to give a lifetime lease to the current occupant. Property owners apply for conversion but then decide they would rather not give the lifetime lease. They sue instead, alleging a regulatory taking. Ninth Circuit: But they failed to seek a timely exemption from the city, so their claim isn't final under Williamson County. Dissent: Finality is about knowing how the law applies, not jumping through procedural hoops, and everyone agrees that the city will not waive the lease requirement. The case should go forward.
  • Turn to the Eleventh Circuit for a sterling opinion about a famous gold bar that, in the court's words, "lived its best life" as a museum exhibit until it was stolen by a thief named Jarred Goldman. There are Spanish galleons, The Goonies, and a holding that famous gold is worth more than its weight in gold. Which is really too bad for Goldman and another thief paying restitution. But just how much more remains to be seen. The thieves get a re-do of the sentencing court's valuation, which may have been too high.
  • Forty-three years ago, an intellectually disabled man confessed to a murder. But newly tested evidence shows that his DNA was not on the bindings used to tie up the victim. The Georgia Supreme Court says he gets a new trial. (via @ASFleischman)
  • Woman pleads guilty to tax fraud in 2011, is sentenced to five years in prison. After getting out of prison on supervised release, she casts a vote in the 2016 election. Yikes! Texas forbids those with felony convictions whose sentences aren't yet complete from voting, which her ballot said in its form language. She's convicted of illegal voting, sentenced to five years in prison. Texas Court of Appeals: We can review neither the decision to prosecute nor the statute's wisdom. Conviction affirmed.
  • And in en banc news, the Second Circuit will not reconsider its decision that the First Amendment forbids President Trump from blocking users from the "interactive space" of his Twitter account, over a dissent that contends that the fact that the president uses the account to tweet official tweets should not mean he is barred from blocking those who tweet meanly in response. (We discussed the original panel opinion on the podcast.)
  • And in more en banc news the Fifth Circuit will reconsider (on its own motion!) its decision holding that the single director structure of the CFPB was constitutional, a decision that was issued on the exact same day the Supreme Court heard oral arguments on the exact same question.
  • And in additional en banc news, the Eleventh Circuit granted rehearing after Judge Newsom wrote a concurrence to his own unanimous panel opinion urging the en banc court to reconsider earlier circuit precedent regarding the interaction of (real) Article III standing and (phony baloney) Fourth Amendment standing.
  • And in further en banc news, the Federal Circuit will not reconsider its decision that (1) administrative patent judges were principal officers and thus should have been appointed by the president but that (2) with APJs' protections against removal revoked, they are converted into inferior officers, and it no longer offends the Constitution that they were appointed by the secretary of commerce. One of the dissenters (from denial of en banc review): We should have given Congress and the agency a chance to fix the issue instead of severing the removal protections.

If the gov't seizes tens of thousands of dollars from you and then returns all of it after you sue to get it back, did you "substantially prevail"? Last year, the Eleventh Circuit said no, thereby depriving Miladis Salgado, who was raided by the DEA after a bad tip, of the attorney's fees necessary to make her whole. (Though the feds released all $15k they took from her, a third of it went to her attorney, who took the case on contingency.) Next week, on Friday, April 3, the Supreme Court will consider whether to grant an IJ cert petition arguing, among other things, that Miladis should indeed be awarded her attorney's fees under the plain terms of the relevant statute. Click here to learn more.

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  1. “dep’t claims high-speed pursuits are an essential element of his job”

    In SOMERVILLE?!? (City next to Boston.)

    A physically fit police officer on a bicycle could get through those congested streets faster than any cruiser ever could….

    1. Furthermore, if one did engage in a high speed chase, it would in almost all foreseeable circumstances be unjustifiably dangerous.

    2. Your constant Massachusetts bashing is becoming tiresome. Please take it somewhere else.

  2. You know, if you conducted a national referendum on the Salgado case I bet you’d get a huge majority in favor of paying her fees, and then some.

    If so, then whose interests are the DEA’s lawyers representing? Not their ultimate client – the American people. Does that matter?

    1. The argument is that it’s really the American taxpayers who will pay her fees if she wins, so by not paying her fees, the court is looking after the interests of the American people. No, I don’t buy it, but that’s the argument. Maybe it’s of value to the American people to not have out of control law enforcement.

    2. There’s a process in place to authorize the government to spend the money that it appropriates from the American people. That process involves more than your subjective determination that a lot of people think spending money in that way after reading a favorable press release would be good. If that process has not been followed, I think it’s reasonable for the government to argue against spending that money.

      1. I am not suggesting that the government lawyers rely solely on my opinion.

        I do suggest that the government can, and should, choose not to pursue a case which would result in an obvious injustice. Yes, that it is an injustice is a matter of opinion, but I’d like to hear the argument that it’s incorrect.

        Your process notwithstanding, there is scope for government officials to spend or not spend money in certain ways. Did these lawyers have nothing else to do?

        Basically, I think that the government should try to act justly, and that when deciding to bring these cases it should recognize that, unlike a private litigant, it has some responsibility towards the individuals on the other side.

        Now clearly you can raise all sorts of examples where this introduces ambiguity, too much discretion, etc. But as I’ve said before, the existence of grey areas does not mean that there are no black or white areas.

        1. In this case, the claimants filed a motion that argued that the government was legally required to pay them $770,000. Are you saying you think the government should have agreed and paid them even though it believed doing so was not required (a legal conclusion that every judge to review the case has agreed with)?

          1. I don’t see anything about $770,000.

            What I see is that it took her years to even get $10K back, and that the government used a sleazy trick to avoid paying her legal fees.

            What I think is that early in the process someone somewhere should have said, “This was a mistake,” and given her the $15K plus any fees she incurred trying to recover it. Instead they decided to show what hardasses they could be, and accomplished half of that.

            1. The trial court forfeiture action is U.S. v. $70,670.00 in U.S. Currency, $101,629.59 in U.S. Currency Seized From Wells Fargo Bank Cashier’s Check No. 6648201039, and $30,000.00 in U.S. Currency Seized From Chase Bank Cashier’s Check No. 1178710368, 1:15-cv-23616-DPG (S.D. Fla.). The claimants’ motion seeking $773,178.75 in attorney’s fees is ECF No. 141. If you know somewhere to host the PDF, I’d be happy upload it for folks without PACER.

              1. So did the Feds actually seize $770K from her, and not $15K?

                When you brought up the number I thought it reflected some kind of inflated damage claim.

                If it’s what they took, then yes, they should have given it back without fighting it.

                1. Her husband ran a garment business which came into possession of (and sold) stolen merchandise. When the manufacturer contacted him, he closed out his bank accounts to make it harder for them to collect. This is the money that the DEA seized (in the amounts listed in the case name).

                  While the forfeiture case was ongoing, the manufacturer obtained a civil judgment. The government filed a motion saying that the case was moot: if the money was returned, the manufacturer would get, and if the government won it would turn the money over to the manufacturer anyway. The trial court agreed with that. (The couple reached a separate settlement with the manufacturer that resulted in about $15,000 going to Ms. Salgado, with about $5,000 of that going to her lawyer per their fee agreement.)

                  After the judge dismissed the case, the claimants (who were all represented by the same lawyer) filed a motion asking for an additional $770,000 in attorney’s fees. The entitlement to this additional sum was the subject of the appeal and now the cert petition.

                  1. A couple of things:

                    1. What is the DEA doing getting involved? It doesn’t sound like drugs were involved.

                    2. So the $770K belonged to the manufacturer? You say:
                    “the case was moot: if the money was returned, the manufacturer would get, and if the government won it would turn the money over to the manufacturer anyway.” What case?

                    3. Why did Ms. Salgado get $15K.

                    4. Most important for my purposes: If what you say is accurate, the writeup in the OP seems wildly distorted and incomplete. I know IJ fudges these cases a bit, but this looks like intentional deception, to be polite. Also, I followed their link and saw nothing about these complications.

                    1. 1. The DEA received a tip that the husband was drug dealer, which is why the house was searched. There isn’t much information about this tip, but it seems pretty clear that it was not true.

                      2. I don’t really know how to explain this better. The government seized about $200,000 in cash and cashier’s checks. The original litigation was about whether that money should be forfeited to the government because it was derived from illegal activity, or whether it should go back to Ms. Salgado and her husband because it was not. After the manufacturer won its judgment, the government pointed out that the money would go to the manufacturer regardless and that the case could therefore be dismissed. (The government also argued that it should win on the merits, but the judge relied the mootness argument.) After the case was dismissed, the claimants’ lawyers said the government should pay them $770,000. This has nothing to do with the amount of money that was seized and was instead derived from the amount of work they had done on the case.

                      3. In the initial claim, the husband claimed to be the owner of all the money that was seized. (Ms. Salgado also said during the search that she did not know about any of the money.) Later on in the case, she claimed that about $15,000 of the cash was hers. (The couple divorced while the litigation was ongoing.)

                      4. Agreed. I’ve noticed that IJ seems to value ideology over accuracy, which is a problem, and is especially bad when it surfaces in actual litigation. (And I agree with a lot of the ideology!)

  3. “We may have thrice said police can’t conduct Terry stops to investigate mere misdemeanors, notes the Sixth Circuit. But that was dicta; police officers can absolutely do that.”

    The panel’s reasoning is actually pretty persuasive. A bright line rule for misdemeanors is hard to square with the reasonableness/totality of the circs tests usually deployed in determining whether reasonable suspicion exists. Also there is hardly a bright line anymore between misdemeanors and felonies in terms of their severity. Some states dont even classify crimes as such!

    You guys are so glib and snarky, reading these posts is like going on twitter

  4. Are judges embarrassed when they get appellate rulings like the Iberia Parish Sheriff’s Office case? It sounds like they’re suggesting the Magistrate Judge Whitehurst should maybe have studied a bit harder.

    1. “Are judges embarrassed…”

      It’s hard to read this weekly feature and come away with the impression that judges have any sense of shame.

  5. “Woman is arrested at protest over Ferguson shooting, released without charge. Rather than returning the $30.97 she was carrying, Multnomah County, Ore. officials give her a debit card that has a monthly service fee (imposed five days after release), a fee for using certain ATMs (with incorrect info as to which machines incur fees), and a fee for requesting the balance of the card by check, among others.”

    One assumes kickbacks from the debit card company to the Multnomah County officials were involved.

    1. Kickbacks or no, this should be an easy case. There are lots of things you can do with cash that you can’t do with a debit card, so a debit card is simply not worth what the cash is worth. So, they did not give her back as much as they took.

  6. I think the Texas Court of Appeals decisions proves that some people become judges so that they can maliciously f*ck over people. The court really goes out of its way when it interprets the phrase “votes or attempts to vote in an election in which the person knows the person is not eligible to vote” as not actually meaning what its plain language says.

    Here, there was no evidence whatsoever that the defendant knew she was ineligible to vote.

    One could say that knowledge of illegality of ones actions should not be required in the general case. But here, we have SPECIFIC statutory language that says they have to KNOW they aren’t eligible. That means, OBVIOUSLY means (1) knowing their status and (2) knowing their status makes them ineligible. SPECIFIC statutory language overcomes a general background presumption.

    The Texas legislature DID NOT say that the person has to “know of a status” that makes them ineligible to vote. It said the person must KNOW that they are not eligible to vote. OBVIOUSLY, the latter condition is important, because it is much more blameworthy to vote knowing you are not eligible, than to vote knowing you have a status, but not knowing that status makes you ineligible.

    This is 5 years in prison for a non-crime. The real criminals in this case are the judges who refused to follow the plain language of the statute and the prosecutors who decided to waste taxpayer money on this case. They should all be ashamed of themselves.

    No WONDER we have an incarceration crisis in this country. Throwing people in prison for 5 years for no good reason.

    1. I want to note a further problem.

      By throwing so many people in prison who don’t belong there, the authorities are decreasing public support for the system. This will ultimately risk public safety, because the backlash they are creating may go too far.

      I wish more intelligence was used in our criminal justice system.

    2. “Here, there was no evidence whatsoever that the defendant knew she was ineligible to vote.”

      Well, not from Reason’s earlier account, or the accounts coming from her allies in the media. But I’ll note that she raised this defense in her trial, and it was specifically rejected as implausible.

      She signed right at the bottom of a clear notice stating the rule:

      “TO BE COMPLETED BY VOTER: I am a registered voter of this political subdivision and in the precinct in which I’m attempting to vote and have not already voted in this election (either in person or by mail). I am a resident of this political subdivision, have not been finally convicted of a felony or if a felon, I have completed all of my punishment including any term of incarceration, parole, supervision, period of probation, or I have been pardoned. I have not been determined by a final judgment of a court exercising probate jurisdiction to be totally mentally incapacitated or partially mentally incapacitated without the right to vote. I understand that giving false information under oath is a misdemeanor, and I understand that it is a felony of the 2nd degree to vote in an election for which I know I am not eligible.”

      She had the fact that she wasn’t on the voter roll to tell her she wasn’t a registered voter. She knew she was a felon, and she knew she was still on probation. She was on notice that she’d be committing a new felony if she signed, and she signed.

      And, critically, the offense she’d just gotten out of prison on? It was wasn’t just making a mistake on her own taxes. She was counseling others on how to commit tax fraud by signing false affidavits.

      The judge, not unreasonably, decided that the evidence indicated it was deliberate, not a mistake.

      1. Oh snap. Retortion stops a bleeding heart.

      2. You should actually read the case. The appeals court ruled that evidence that she knew she was ineligible was NOT required.

        1. He’s not responding to that part of your comment—he’s responding to the part where you said that evidence didn’t exist. You can tell, because he quoted that part of your comment at the beginning of his comment.

          1. Noscitur a sociis:

            Actually reading the opinion is super-helpful:

            “Although much of the State’s questioning and proof at trial focused on whether Mason subjectively knew that being on supervised release made her legally ineligible to vote, the State did not plead her subjective belief in the indictment.”

            “The evidence also shows that Mason knew she was on
            supervised release when she did so. See Thompson, 9 S.W. at 486–87; Jenkins, 468 S.W.3d at 672–73; Medrano, 421 S.W.3d at 884–85. The evidence does not show that she voted for any fraudulent purpose. But the State did not need to prove any motive
            for her actions. See Clayton v. State, 235 S.W.3d 772, 781 (Tex. Crim. App. 2007) (noting that motive is not an essential element of an offense that the State must prove beyond a reasonable doubt); cf. Ortega v. State, No. 02-17-00039-CR, 2018 WL
            6113166, at *1 (Tex. App.––Fort Worth Nov. 21, 2018, no pet.) (mem. op., not designated for publication) (involving prosecution for illegal voting in which noncitizen, legal permanent resident was able to register and vote twice in Dallas County even though she truthfully indicated on her registration application that she
            was not a United States citizen). And as we have explained, not knowing the law is no excuse for the conduct prohibited under Election Code Section 64.012(a)(1). Although Mason may not have known with certainty that being on supervised release as part of her federal conviction made her ineligible to vote under Texas law or that so voting is a crime––and although she testified that if she had known she would not have voted––she voted anyway, signing a form affirming her eligibility in the process despite the fact that she was not certain and may not have read the warnings on the affidavit form.”

            (1) The indictment DID NOT allege that she had subjective knowledge.
            (2) The Court of Appeals CONCEDES that she may not have known she was ineligible to vote.

            BOTH of you are guilty of not reading the opinion.

  7. On attempting to access the Georgia Supreme Court holding mentioned in Short Circuit, my Firefox browser connection is blocked with a message: “Why have I been blocked? This website is using a security service to protect itself from online attacks…”
    For those with a like problem, the Twitter link given does have a snippet.

    1. Strange — my Firefox opens it fine. But there’s another copy here you might try.

    2. Maybe review your browser extensions. Perhaps one of them is considered problematic by security software. Alternatively, the site might have detected AdBlock or a similar extension, and prefers to provide a security message instead of a “you will view our ads and you will like it” message.

  8. Many, many thanks for this chatty, witty digest. Oddly, I find myself looking forward to it.

  9. ” Fourth Circuit: Dismissing the worried juror was not enough. The judge must hold a hearing to decide whether other jurors were afraid of gang retaliation—and thus possibly biased against the defendant.”

    Weird. My initial reaction was intimidation would make them more likely to acquit, not convict. If you think the guy’s gang is going to come after you, you’d be more likely to let him go free if you were scared. Where is the possible prejudice to the defendant?

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