Short Circuit: A Roundup of Recent Federal Court Decisions

Tasteless sarcasm, hydrofluorocarbons, and indefinite detention.

|The Volokh Conspiracy |

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

New on the podcast: Did you know your city can go bankrupt if it doesn't respect property rights? An interview with Charles Marohn of Strong Towns. Click here for Apple Podcasts.

  • Proving that they really are the hardest-working federal appellate court in America, three judges of the D.C. Circuit manage four opinions as to the meaning of the Federal Death Penalty Act of 1994.
  • Remember chlorofluorocarbons? The chemicals that made that hole in the ozone layer? After CFCs were banned, companies switched to hydrofluorocarbons. Uh oh! HFCs may not punch holes in the ozone layer, but they are potent greenhouse gases. D.C. Circuit (2017): An EPA rule that prohibits the use of HFCs for CFCs applies only to companies that have not already switched to HFCs. EPA: Okey dokey, everyone can use HFCs. D.C. Circuit (2020, over a dissent): Not without notice and comment rulemaking, they can't.
  • The phrase "so help me God" in the naturalization oath violates neither the Constitution nor the Religious Freedom Restoration Act, says the First Circuit.
  • Before and throughout the housing market crash, Goldman Sachs repeatedly assured investors that the firm had rigorous safeguards against conflicts of interest. Yikes! Goldman allegedly bet against its common stock investors' interests. Goldman: Our assurances did not fraudulently inflate our stock price; at most, the statements maintained the already inflated value of our stock, which was not inflated by fraud. Second Circuit: The common stock investors' class action can proceed.
  • Sexagenarian inmate (convicted of Hoboken, N.J. vote-buying scheme) seeks compassionate release under the First Step Act, citing the risk that COVID-19 poses to prison inmates (and older, infirm inmates like him, in particular). Third Circuit: These are serious concerns, but he didn't exhaust administrative procedures, so we don't have jurisdiction.
  • Man accused of brandishing a firearm during a crime of violence is facing life imprisonment under the federal three strikes law because of prior convictions. Crikey! The judge who will preside over his trial successfully prosecuted him in 1989 for bank robbery. New judge? Judge: No. I don't remember the 1989 case. Fourth Circuit: No need for recusal yet. If the man is convicted, the facts of the 1989 case may become relevant at sentencing, and he can ask for recusal then.
  • Texas governor takes a dim view of atheist group's display in Capitol building (submitted after a traditional Nativity scene was approved) that features Founding Fathers arrayed around a manger containing the Bill of Rights. Guv: It's "tasteless sarcasm" that mocks Christianity. Fifth Circuit: Rejecting the display likely violates the First Amendment.
  • In 2014, during temporary fever tick quarantine in Cameron County, Tex., officials allegedly round up cattle improperly and apply pesticide to them improperly, which injures and kills the animals. Fifth Circuit: Can't sue over that; the Federal Tort Claims Act contains an exception for damages caused by the establishment of a quarantine.
  • To preserve hospital capacity and personal protective equipment during the COVID-19 pandemic, many governors have ordered nonessential surgeries and procedures halted, including, in some states, abortions. The Fifth Circuit (over a dissent) will permit Texas to temporarily ban certain nonessential abortions to continue; it's a reasonable restriction during a public health crisis. (The district court has since issued a narrower order allowing medication abortions and certain surgical abortions, depending on gestational age, to continue.) Meanwhile, the Sixth Circuit will not allow Ohio to prohibit abortions, full stop.
  • En route to jail, teen under the influence of LSD smashes his head over 40 times against metal cage, side window, and back seat of Mesquite, Tex. police car. Officers do not inform the jail sergeant. The teen dies. District court: Can't sue the officers over that. Fifth Circuit: Reversed. A jury might find the officers were deliberately indifferent to the teen's medical needs.
  • The lynchpin of a Michigan murder conviction was a pawnbroker's claim that, on the day of the murder, the defendant pawned a ring belonging to the victim. But the pawnbroker didn't testify. He died before trial, so police testified about what he had said. Sixth Circuit. New trial. This evidence mattered to the jury, but the defendant had no opportunity to cross-examine the pawnbroker. That violates the Confrontation Clause.
  • Attempting to turn the tables, union members in Lincolnshire, Ill. cite the Supreme Court's recent Janus decision to argue that they should not be forced to pay municipal taxes that fund the Illinois Municipal League, a private organization with whose speech they disagree. Seventh Circuit: But Janus concerned compelled subsidies for private speech, and the League, while nominally private, is made up of municipal officials. So their speech is government speech to which Janus does not apply.
  • Concerned about the risk of COVID-19, detained immigrant seeks an order under the All Writs Act for immediate release. Ninth Circuit: We're going to construe this as a request for habeas relief and remand to the district court. Dissent: We should be absolutely clear that the All Writs Act does not empower us to do this.
  • Immigrants who are being detained indefinitely while they challenge their removal (because of a reasonable fear of persecution back home) seek individualized bond hearings. Ninth Circuit (over a dissent): Circuit precedent requires such hearings after six months, and that precedent controls despite some "tension" between it and a recent SCOTUS decision.
  • Under federal law, JAG lawyers for the Army National Guard often do not have to be licensed in the state where they practice. In California, one JAG lawyer has taken to suing and filing bar complaints against JAG lawyers who aren't licensed in California, claiming that they're engaged in the unauthorized practice of law. Ninth Circuit: The most recent lawyer to be sued was entitled to have the case removed to federal court.
  • Ninth Circuit: Facebook's (alleged) tracking of users' browsing habits—even when they weren't signed into Facebook—may well have violated California privacy law.
  • Allegation: Marion County, Fla. officer orders bystanders (a former EMT and a nurse) to stop giving CPR to 14-year-old boy who had just attempted suicide by hanging, even though they detect signs of life. Without examining the teen, the officer radios that there is no rush. When paramedics arrive, the officer stops them. Eventually, they reach the boy, detect a faint pulse, and resume CPR. The boy dies a week later. Can the boy's mother sue the officer? District court: Yes. Eleventh Circuit: Maybe not. Back to the district court to reconsider, under a different standard, whether the officer was on notice that this kind of conduct violated clearly established law.

Friends, last year the Fourth Circuit held that the Telephone Consumer Protection Act unconstitutionally prohibited robocalls from political campaigns while permitting them by collectors of government debt. To "remedy" this First Amendment violation, the court expanded the TCPA to cover everyone. In this amicus brief to the U.S. Supreme Court, IJ argues that "misery loves company" is not a valid rule of constitutional law.

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  1. “officer orders bystanders (a former EMT and a nurse) to stop giving CPR”

    What I didn’t see mentioned is what the officer’s own department protocols and procedures say, and what he had been taught in his training at the academy. And how he violated that.

    Every department I am aware of has extensive internal protocols and policies as to what officers are and aren’t supposed to do, everything from what they are supposed to be wearing to when they can discharge their weapon. And most officers today have graduated from some sort of police academy, which has an established curriculum.

    CPR is either American Heart or Red Cross, and the two books vary on a few minor points, but my memory is that both insist that you ABSOLUTELY DO NOT STOP CPR until (a) everyone involved is physically unable to continue, or (b) a MD decides the person is dead. A MD…

    If the officer was CPR-qualified — most officers are — then he had been taught this. Even if the department didn’t have a relevant protocol, if it required him to have a valid CPR card, then isn’t that de-facto included in “the rules”, the way that the state’s motor vehicle code would be implicitly included in an order to “drive safely.”

    And hence what I don’t understand is why the officer breaking his own department’s rules (assuming he did) not the most relevant thing here.

    Of course this is Florida, and I’ve not been impressed with what I’ve heard about medicine in that state.

    1. So if you come across a body in apparent cardiac arrest, you’re going to administer CPR even though the patient’s head is on the other side of the road? I mean, you’re not an MD so you can’t declare them dead, right?

      I’m not saying that your memory is wrong but your training probably was. I also was originally taught that you never stop CPR. And that’s a useful rule of thumb when you’re in an urban or suburban setting where professional responders are 3-7 minutes away. I was disabused of that notion when I first took Wilderness First Aid (the next level up – focused on scenarios where you are more than 30 min away from professional help). Common sense applies. You are authorized to stop CPR a) when continuing is more dangerous to the survivors than stopping (for example, night’s coming and you need to get to shelter), b) when success is no longer likely (generally 20 minutes UNLESS the cardiac arrest is the result of hypothermia) or c) it’s obviously not going to help. And no, you don’t need to be an MD to make that call.

      None of that undercuts your larger point, however, that there is no possible way that what this officer did was anything other than obstruction of medical aid. Not only did he stop the volunteers, he interfered with the professionals when they showed up. This shouldn’t be left to the mother’s civil suit. This disgrace of a cop needs to be in jail.

      1. “So if you come across a body in apparent cardiac arrest, you’re going to administer CPR even though the patient’s head is on the other side of the road? I mean, you’re not an MD so you can’t declare them dead, right?”

        Read better. The claim was “if you start CPR, you don’t stop unless…” not “you must start CPR if…”

        I’m curious. Under what authority is the cop telling anybody what to (not) do? Unwanted medical procedures are civil battery, not criminal. So even if the cop thinks the guy didn’t want to be touched, the cop has no authority.

  2. I’ve never bought the “freedom of speech” argument wrt robocalls, or human callers with similar aims for that matter.

    Why does your right to speak give you the right to annoy people, in their own homes, who don’t want to listen? No one has the right to ring a bell in a stranger’s home.

    1. How do you practically forbid it? Same with a doorbell. If you want to allow the postman, UPS, etc to ring your doorbell, you either need to pass out special keys to a locked gate or hire a doorman. Similarly with the phone — you can only limit it to known people with a whitelist which is a pain in the ass to maintain when you expect the garage to call when your car is ready, or a friend to call from some stranger’s phone. If you require some kind of established business relationship, everyone has different definitions. Do you want to prevent the car dealer from calling you about their oil change special when their records show you will probably want one soon? If your insurance agent retires and a new agent calls to let you know, is that ok? If you gave money to the opera last year, is it ok if the ballet calls to ask for similar consideration?

      Yes, robocallers are obnoxious. But I don’t see any practical way to make them illegal and not have widespread repercussions. If you don’t want the public to ring your front doorbell, don’t let the public access it. If you don’t want the public to call, don’t have a publicly accessible phone.

      1. Good points.

        Still, it should be possible to stop the robocalls, if not human-dialled ones. The ones you describe don’t come constantly. (I once did have a car that required a lot of attention from my mechanic, but not three times a day. I waited too long to get rid of it.)

        Like most people I get several robocalls a day, as the technology seems to be improving, if you can call it that, and, whatever the practicalities of stopping it, I don’t accept that it’s the callers’ Constitutional right to keep it up.

        1. You could do what I do and not answer the phone if the number isn’t in my contacts list. If it is a person specifically trying to reach me for a valid reason they can leave a voice mail and I will call them back.

      2. robocalls are usually recorded messages.

        1. You mean Judy from Time/Life isn’t real, or that “Kyle” from Microsoft hasn’t really detected any malware in my computer?

      3. “Yes, robocallers are obnoxious. But I don’t see any practical way to make them illegal and not have widespread repercussions”
        They’e terrorists and cause more loss of productivity to American business than alqeda ever dreamed of.

    2. “I’ve never bought the “freedom of speech” argument wrt robocalls”

      When I run for President, the sole plank it my platform will be using Seal Team 6, supported by drones if necessary, to fight phone spam.

  3. Immigrants who are being detained indefinitely while they challenge their removal (because of a reasonable fear of persecution back home)

    Are these immigrants or are they asylum seekers? Is it the position of IJ that any non-US citizen on US soil is an immigrant? What about tourists? Or visiting Heads of State? Hopefully, they’d draw the line at the uniformed soldiers of an invading army.

    1. ” Is it the position of IJ that any non-US citizen on US soil is an immigrant?”

      Asylum seekers are de facto immigrants, including the ones who’ve already done the travelling. The quibble is over their legal status to be here.

  4. Republicans on the 7th Circuit:

    Janus is for thee, but not for me.

    1. An enlarged Supreme Court:

      We’ll see.

  5. The lynchpin of a Michigan murder conviction..

    Please. “Linchpin,” not “lynchpin.” A particularly egregious mistake when talking about murder.

    1. I concur.

  6. 9th Circuit court: Yeah, this decision might create “tension” with the SCOTUS, but they’re full of GOP appointees anyway, so we don’t care.

    1. The 9th circuit is full of GOP appointees.

      1. And yet, whenever I see one of these articles up about the 9th Circuit, I can unerringly determine which party appointed the judges who wrote the decision, and the party that appointed the judges that wrote the dissent.

        1. All three of the judges on that panel were Republican appointees. Milan Smith (GWB) wrote the opinion, joined by Miller (Trump); Fernandez (GHWB) dissented.

        2. By speculating and not checking, AL is always correct (in his own mind).

  7. The Sixth Circuit has a pretty bad rap, correctly, in habeas cases, but this one they got right. What were the Michigan Courts possibly thinking to say that testimony of possession of the stolen property was harmless when there was no other evidence of any real import?

    1. What if the cops had the foresight to get a video statement from him — not an actual deposition, but just a statement.

      Hmmmm….

      1. Are you suggesting that would have led to a different result?

      2. Nothing because he still wouldn’t have been cross examined.

      3. “What if the cops had the foresight to get a video statement from him — not an actual deposition, but just a statement.”

        What if the cops had the foresight to seize the business records that pawnbrokers are required to keep, listing what they took in and the identification of the pawner. The prosecutors are taught the rules of evidence, so they should have known to use the business records rather than witness testimony.

        1. Read the opinion. They did just that, but the receipt for the relevant transaction “indicates that a seller received $2 for ‘gold,’ without specifying the nature of the item or items sold. The February 23 receipt bears a signature but does not otherwise indicate the name of the seller and does not contain a thumb print.” The prosecutions. receipts from prior transactions that were more definitively identified as the defendant’s and argued that the signatures matched.

      4. What if the cops had the foresight to get a video statement from him — not an actual deposition, but just a statement.

        Then it would’ve been exactly as admissible, which is to say, not.

  8. Citizenship oath: It seems as though “longstanding “tradition” is invoked when a Federal Court is ruling on a longstanding practice whose unconstitutionality can’t be rebutted, but which they nevertheless want to preserve and believe they have political cover to do so. Preserve and protect, indeed.

  9. Which case is the “tasteless sarcasm” cases alluded to in the OP’s below-title blurb?

    1. Texas governor takes a dim view of atheist group’s display in Capitol building (submitted after a traditional Nativity scene was approved) that features Founding Fathers arrayed around a manger containing the Bill of Rights. Guv: It’s “tasteless sarcasm” that mocks Christianity. Fifth Circuit: Rejecting the display likely violates the First Amendment.

      1. Thanks…I had missed that.

      2. Rejecting the display doesn’t “likely” violate the 1A, it “obviously” does so. Plus it’s a little bit offputting that the governor of an American state finds the Bill of Rights to be “tasteless”.

        1. Is it possible for someone who consistently upholds the Constitution to be elected Governor of Texas?

          1. By Texans, you mean?

  10. “Sexagenarian inmate (convicted of Hoboken, N.J. vote-buying scheme)…”

    Fake news. Everyone knows there is no voter fraud.

    1. Don’t be an idiot.

      While running for local office in Hoboken, New Jersey,
      Raia directed campaign volunteers to bribe voters with
      $50 payments to vote for him by absentee ballot and
      support a measure he favored.

      In other words, he was bribing legal voters. How would all your ID laws stop that?

      1. “In other words, he was bribing legal voters. How would all your ID laws stop that?”

        They need valid ID to cash the check. If they don’t got it, they don’t get the money. If they don’t get the money, they didn’t get bribed.

  11. “The lynchpin of a Michigan murder conviction was a pawnbroker’s claim that, on the day of the murder, the defendant pawned a ring belonging to the victim. But the pawnbroker didn’t testify. He died before trial, so police testified about what he had said. Sixth Circuit. New trial. This evidence mattered to the jury, but the defendant had no opportunity to cross-examine the pawnbroker. That violates the Confrontation Clause.”

    Note to prosecutors. Next time, use the pawnbroker’s business records to establish the essential fact instead of hearsay.

    1. Note to you. It’s often helpful to understand what actually happened in the trial before opining about how it should have been done differently.

      1. Made the error of assuming accurate reporting.

  12. Seems to me the DoD would take a dim view of one of it’s lawyers suing other of it’s lawyers and take some disciplinary measures.

    Generally the Feds take the view that their authority succeeds state licensing laws, although some state take a different view.

    1. “Generally the Feds take the view that their authority succeeds state licensing laws, although some state take a different view.”

      In federal court, the federal rules should take precedence.

    2. Generally the Feds take the view that their authority succeeds state licensing laws, although some state take a different view.

      Some states may, but the Supremacy Clause says that state views, different or otherwise, don’t really matter.

    3. I wondered something similar. I was also disappointed (but not surprised) that the opinion did not explain why he is taking such an issue since he’s done this to multiple attorney’s evidently. And there are no news reports so if someone has an idea please explain what he takes such an issue with. Maybe these attorneys working side jobs as attorneys and taking money under the table?

  13. “…officer orders bystanders (a former EMT and a nurse) to stop giving CPR…”
    It is likely also inappropriate for bystander initiated cpr to be stopped for any reason, especially knowing that professionals with advanced equipment are on the way. This is communicated to rescuers during both advanced as well as basic life support training training provided by the Red Cross, or America heart association.
    The cop is likely on notice in a demonstrable way because he is personally responsible for knowing the CPR training as it was taught to him.
    His department would have his training record, and course material relevant to the date of training. And if no documented training in CPR, then his department is also liable.

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