Short Circuit: A Roundup of Recent Federal Court Decisions

One day too late, one good eye, and dead men tell no tales.

|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: arresting a reporter, arresting the interstate flow of alcohol, and arresting political consultants' speech. Click here for Apple Podcasts.

  • Once the SEC found a compliance officer responsible for not investigating a multibillion dollar Ponzi scheme, he had 60 days to appeal to the United States Court of Appeals for the District of Columbia Circuit (the federal appeals court in Washington that reviews many agency actions). But instead, representing himself, he filed his appeal with the District of Columbia Court of Appeals (the "state supreme court" of D.C.). He learned of the goof one day too late and filed in the right court on day 61. D.C. Circuit (the real one): Too bad.
  • Allegation: Homeless man doesn't resist when Austin, Tex. officer grabs his arm. But rather than comply with the officer's orders, the man asks the officer to stop. Without warning, the officer hits him in the head, takes him to ground, beats him further, tases him. Officer: At which point he disarmed me, tased me, and broke my hand. District court: Video shows you had him pinned down the whole time and you told other officers you broke your finger "punching the shit out of him." Fifth Circuit: No qualified immunity.
  • Allegation: Man has bad acid trip at concert, paces around mumbling incoherently next to road. Though he is not violent, Southaven, Miss. police hog-tie him using their own personal shackles. They know he has asthma, but officers insist that he stay hogtied at hospital. His face turns from bright red to purple as he struggles to breathe. He dies. Fifth Circuit: No qualified immunity.
  • In 2017, Texas passes a law prohibiting state governmental entities from contracting with companies that boycott Israel. After a bevy of sole proprietors file a First Amendment lawsuit, district court preliminarily enjoins the law. Twelve days later, Texas amends the law—to exclude sole proprietors while retaining the law for larger companies. Which makes the sole proprietors' case moot, says Fifth Circuit.
  • Corrections officers at Richwood, La. private prison take inmates to a part of the jail without cameras, force them to kneel while handcuffed, and pepper spray them in the face one by one when they deny being gang members. To explain the inmates' injuries, the officers file false reports. Fifth Circuit: No reason to reconsider the lead officer's 60-month sentence.
  • The Sixth Circuit enjoins Tennessee's executive order prohibiting nonemergency surgical abortions, such that the procedures may be allowed for women whose pregnancies will be past the legal limit for abortion when the governor's order ends and for women who, due to the stage of pregnancy, will need to undergo lengthier surgical abortion procedures if they wait until the executive order expires (which it did on April 30). Dissent: Courts should not rubber-stamp emergency measures, but "judges should act with care during such times, recognizing the limits of our knowledge, institutional capacity, and lawful authority."
  • Illinois prisoner develops cataract in his left eye, but under the prison's "one good eye" policy, the prison refuses to authorize surgery. Five years later, the prisoner is completely blind in his left eye and has a cataract in his right eye. But he's not completely blind, so still no surgery for him. He files an emergency grievance, which is denied. Can he sue in federal court? Prison: No, he should have refiled a standard grievance. Seventh Circuit: That wasn't a required procedure when he filed his grievance, so he exhausted everything he was required to exhaust.
  • A divided Seventh Circuit panel says that a universal injunction—that prevents the feds from conditioning receipt of certain grant money on cities' and states' compliance with federal immigration enforcement efforts—is necessary to ensure that Chicago (a sanctuary city) receives the same amount of funds it would have received if the conditions had never been imposed. The full panel held (for the second time) that the conditions are unconstitutional, as the attorney general imposed them without Congress' explicit authorization. (Learn more about the universal injunction issue here.)
  • A Mississippi county contracts with an inmate transportation company to transport a pretrial detainee from Colorado back to Mississippi. Ordinarily, the drive would take around 16 hours. But the transportation company travels west from Colorado through at least a dozen other states (some more than once) to pick up and drop off other prisoners. Throughout, the prisoners remain chained in upright, seated positions, often marinating in their own waste. The trip takes eight days. And a detainee's ensuing lawsuit against the company must proceed to trial, holds the Eighth Circuit.
  • Man pleads guilty, implicates three friends in brutal 1988 murder of a 78-year-old woman in Fordyce, Ark. All are convicted and sentenced to life in prison. After two decades pass, it comes to light that law enforcement used a prison informant to extract a confession, which they recorded. But the tape was either lost or destroyed, and defense counsel were never informed of the informant or his incentives for informing. On top of that, one of the friends claims sole responsibility for the attack. Eighth Circuit: The two friends did indeed establish that law enforcement destroyed evidence in bad faith, and they're entitled to habeas relief. (More from the Midwest Innocence Project and local reporting.)
  • Sitting by designation, trivia whiz Judge Boggs reminds us that in the Cadaver Synod of 897, Pope Stephen VII exhumed and tried the deceased Pope Formosus. Now, however, the Ninth Circuit holds that you cannot sue the dead.
  • In 2001, a Navajo man murders a Navajo woman and her granddaughter within the territory of the sovereign Navajo Nation. As the case continues to wind through the courts, two Ninth Circuit judges write separately to comment on the unusual fact that the United States sought the death penalty "against the express wishes of the Navajo Nation, several members of the victims' family, and the United States Attorney for the District of Arizona."
  • Kansas law requires residents to provide documentary proof of citizenship before they may register to vote. An unconstitutional burden on the right to vote? A violation of the National Voter Registration Act? Tenth Circuit: Both. As far as the record shows, in the past 19 years only 67 noncitizens have attempted to register to vote, while tens of thousands of people have had their registration delayed or denied under the law.
  • Under Florida law, the order of candidates on the ballot is determined by the results of the last gubernatorial election, with the winning candidate's party listed first. For the past 20 years, this has been the Republican Party. Does this unconstitutionally dilute the voting rights of Democrats? Eleventh Circuit: No need to answer that question; none of the plaintiffs alleged an injury, and they sued the wrong person. Concurrence: And this is a nonjusticiable political question. Concurrence/dissent: It's enough to hold that no one is injured.
  • And in en banc news, the Ninth Circuit will not reconsider its decision that a California labor regulation mandating that agricultural businesses allow nonemployee union organizers onto their property is not a taking under the Fifth Amendment.

Cities and towns nationwide use their code enforcement powers to treat citizens like ATMs. Such taxation by citation continues amid the COVID-19 crisis, and it's likely the problem will worsen in the coming months as municipalities find themselves facing budget shortfalls. And, a new IJ report finds, a wide range of state laws enable or even encourage the abuse. Titled Municipal Fines and Fees: A 50-State Survey of State Laws, the report is the first comprehensive accounting of state laws relating to municipal fines and fees. It uses 52 legal factors to rank the 50 states based on the extent to which their laws may contribute to municipal taxation by citation. The rankings offer a systematic way to diagnose possible relationships between state laws and municipal behavior—and to identify potential policy solutions. Read the report.

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  1. OK, what exactly is going on in the 10th Circuit court case, regarding the entirely logical need to show proof of citizenship before being allowed to register to vote?

    The court admits that the regulations stopped dozens of people who were not citizens from registering to vote. This is evidence that the law, as designed, is working. It is preventing people from illegally voting.

    Have other people had their voter registrations delayed because they didn’t have their proof of citizenship on hand? Yes. But once they obtain their proof of citizenship, they can easily vote.

    These types of regulations, requiring ID (in the form of a birth certificate), are quite common. For example, to get a US passport, you generally need proof of citizenship (or if not a citizen, other similar paperwork). You’ll also need it to get married in many states. You need it in many states to get a drivers license. To obtain a social security card. To obtain a firearm, there are all types of pieces of information you need. And people are prevented every day from marrying, from obtaining firearms, from obtaining a passport because they didn’t have their birth certificate on hand. So…they went and got it.

    Is the court going to throw out all these laws too? Because they present “delays”??

    1. As far as the record shows, in the past 19 years only 67 noncitizens have attempted to register to vote, while tens of thousands of people have had their registration delayed or denied under the law.

      Less than four people a year have voted falsely, and roughly one thousand times as many people have had their voting rights denied or delayed as falsely voted. I bet voting comes under strict scrutiny and requires a law to be narrowly tailored, a thousand to one ratio is not narrowly tailored, and the horror of four false votes a year is actually not very horrible.

      1. So how do you feel about requiring a carry permit to vote?

        1. About as giraffey as your answer to mine to yours.

      2. How many non-citizens have been stopped from registering to vote because of the law though, and the knowledge they couldn’t produce the documentation?

        Like I said, you can make the same argument about anything that needs ID. Passports, buying a gun, marriage, etc. Are you willing to get rid of the laws that prevent people from buying guns, because they delay more legitimate people from acquiring guns than people directly rejected?

      3. Ohh, good argument.

        Now do cashing checks, alcohol purchases, and gun sales.

      4. Less than four people a year have voted falsely,

        It doesn’t even say that. It says less than 4 people a year have (tried to) register to vote falsely. Not that that many actually cast ballots.

    2. The basic idea is we all want accurate elections, right?

      Now if a law is preventing hundreds of eligible people from voting, while if it is suspended a couple of ineligible people will vote, which way produces a more accurate election result?

      1. while if it is suspended a couple of ineligible people will vote,

        They didn’t all actually vote. They registered. Maybe some voted, but we are not told how many.

        Look, I’m sure you know this, but it’s worth repeating. The whole voter ID business is a Republican scam to stop eligible voters who are likely to vote Democratic from voting. That’s it. End of story.

        1. Yes, if someone can’t show a photo ID, they aren’t acting as adults. People who can’t follow adult responsibilities should not be allowed to vote.

        2. There have been over a thousand cases of voter fraud of various types since 2000. Elections have been overturned due to voter fraud. It’s a real issue, one that can have simple and rational fixes.

          https://www.heritage.org/voterfraud

          1. Irrelevant to this decision. This concerns a 1000 to 1 ration of wrong denials vs wrong vote registrations.

      2. How many non-citizens aren’t bothering to try to register to vote because they don’t have the needed documentation?

        1. That would be interesting, as would the corollary of how many citizens aren’t bothering to try to register to vote because they don’t have the needed documentation.

      3. How many of them were “prevented” from voting, vs delayed for being required to follow the instructions?

        By the way, last election cycle, there was an election decided by one vote, and that one legislator resulted in 1-vote margin votes in office multiple time. The result of allowing just a “couple of ineligible people” to vote would have overturned the actual will of the voters, with explicit consequences.

        1. Actually, two illegal voters only overturn the will of two legitimate voters.

          Or, if you prefer, they overturned the will of 50,000 voters, but enabled the will of 49,999 others, but then the net overturn is only one.

          In a close election you could also claim that a long traffic light at 6:58pm, a five minute delay in a subway train, some grandmother’s poor eyesight or shaky voting finger, “overturned the actual will of the voters”.

          Along with the fact that before electronic voting machines that enforce the appearance of a correct ballot, about 2% of ballots showed evidence that the voter really didn’t have much intent at all. Someone got those people to the polls due to notions about dignity and participation, not because they would help make some kind of decision.

          During the Florida Bush-Gore controversy a commentator pointed out that an election is an approximate measurement with an error of maybe +/-3% due to all kinds of factors.

          There’s also the last vote fallacy at play here – singling out one vote out of the 50,001 that won the election. One sometimes here a silly claim by abstention advocates that one’s vote only counts if the election was won by one vote. Any election is won by all the votes for that candidate, not by the last one.

          1. I’d be willing to pay $1 extra per year on the print subscription in return for an edit feature.

            1. I will give you this much. Florida 2000 was essentially a statistical tie.

        2. ” The result of allowing just a “couple of ineligible people” to vote would have overturned the actual will of the voters, with explicit consequences.”

          You’re assuming. if “the will of the voters” is a deadlock tie the usual remedy is to use chance to resolve the deadlock. Sometimes it’s by drawing lots, and sometimes by coin flip, and sometimes by rock-paper-scissors. So “let this ineligible voter decide it” isn’t that far off from “the will of the voters”. The whole “we decided you’re ineligible because we’re afraid you’ll vote for the wrong person” line of argument, where demonstrably true, is just evil, full stop. It’s also a current GOP thing.

    3. The question is, as is often the case, how much restriction of a right is appropriate in order to prevent unlawful behavior. We require would-be drivers to demonstrate ability to drive before they are licensed to do so, and require them to obtain and maintain insurance. These are reasonable requirements, even though they do present some limitations on drivers. Now, if the legislature became convinced that there is too much traffic on the streets, and it’s causing too many accidents on the streets, and they responded by passing a law that limited driver-license applicants to take the behind-the-wheel test only in new automobiles, vehicles that have been manufactured the same year as the would-be driver wants to take their behind-the-wheel driving test. That’s going to cut down the number of drivers, because not everybody has access to a new car. Poor people can’t buy new cars even if they want one, and young drivers can’t rent them, either. So there’s a law that does what it was supposed to do, but isn’t really reasonable to impose because it limits people in ways that aren’t related to the purpose of the regulation.
      Every person born in the United States is a citizen, and citizens are entitled to vote for federal offices with a few exceptions. The thing is, it’s very difficult to prove you were born in the United States without help from other people. If you were born in a hospital and the hospital keeps a registry of births, all you have to do is ask the hospital to certify that it has records of your birth. Easy (but bureaucratic). Unless the hospital has been shut down, or has suffered some kind of disaster that has damaged its records. And being born sometimes happens outside of hospitals.

      1. I was born in DC, in a hospital long-since torn down. The DC bureau of vital records washed its hands of providing birth certificates, farming all that out to private contractors. Those somehow have access to the records DC withholds* from people born there. The contractors are privileged to charge for the access. I think a growing list of states now handle the process the same way, in many cases using the same few contractors.

        Seems like that situation makes demanding proof of citizenship from would-be registrants at least equivalent to a poll tax.

        *Technically, you can still apply for a birth certificate directly from the bureau which handles DC vital records. But to get approval your application still has to be sent first to the contractor—which can happen conveniently using an electronic kiosk located at the office of the DC bureau.

        1. I was born in rural coastal Washington. I haven’t been in the area for several decades. I also went through ordering replacement documents on my daughter’s behalf, because my ex-wife stole the original documents in the course of an extended custody dispute that started when my daughter was five. Both her original birth certificate from the hospital and her original SS card disappeared mysteriously from my house. I had to order replacements so my daughter could apply for a driver’s license a decade later She registered herself to vote as soon as she turned 18, days after the election in 2012.

  2. It is nice to see some rulings that deny qualified immunity. Steps in the right direction.

    1. Yeah, but the reason is that the cops are running out of novel ways to abuse the citizenry.

      1. In large part, people are becoming aware that police brutality is really a thing, and that in large part due to Steve Jobs.

        1. I don’t get what Steve Jobs has to do with it

          1. Well, also Samsung.

            It’s the ubiquity of smartphone cameras.

            1. That’s the big reason.

              The other, smaller reason is the crime rate is down. When the crime rate was high, a lot of people supported the police. The 1994 Crime Bill was bipartisan, with black and white support.

              But now, people of different ideologies, not as worried about a soaring crime rate, are able to be a bit more rational on the issue of policing and punishment. So there’s clearly more sympathy for folks who get beat up or abused by the police, alongside things like the First Step Act (again, bipartisan) that try to do something to amerliorate over-harsh prison sentences.

              It’s at least moving in the right direction.

              1. The trend in the crime rate has been headed down since long before 1994. Particularly if you choose to treat prosecutions for drug possession as not really “crimes” in the sense that it’s hard to identify “victims” of these “crimes”

            2. Actually, there were phones with cameras available in the US as early as 2002, five years before the release of the first iphone.

              1. I take it you’re one of those people that had a Blackberry. Most of us skipped straight over that stage of the technology.

                1. Nope. Never had a Blackberry. I was late to moving to a smartphone, prior to that, my preference was for flip phones.

                  1. P.S. I’ve known people who had Blackberries, they were two way pagers, NOT cell phones and I’ve never seen one with a camera.

          2. Jobs -> iPhones -> ubiquitous networked videocams?

  3. Judge Boggs didn’t have to go back to the 9th century to find judicial procedures applied to the dead. From Wikipedia’s “Oliver Cromwell” entry, “Cromwell’s body was exhumed from Westminster Abbey on 30 January 1661, the 12th anniversary of the execution of Charles I, and was subjected to a posthumous execution, as were the remains of Robert Blake, John Bradshaw, and Henry Ireton. … His body was hanged in chains at Tyburn, London and then thrown into a pit. His head was cut off and displayed on a pole outside Westminster Hall until 1685. “

    1. If I am ever going to be executed, I am hoping it will be a posthumous execution.

    2. Were they also tried, or just executed?

      1. Why have a trail, there’s no one to object to the execution left alive.

      2. What would they have been tried for? Suspicion of vampirism?

    3. That’s in the opinion also.

    4. The zombie apocalypse is real, and it happened 500 years ago. 🙂

  4. How is police Sgt. Gregory White not fired and charged with battery and filing a false report for lying about it?

  5. 1. Unions
    2. Police and Prosecutors are on the same team.

  6. This part of Scott v. White was surprising to me:
    “…clearly established Texas law justifies the use of force to resist arrest if, before the
    person resists, the peace officer uses ‘greater force than necessary’ to make the arrest and the person believes their use of force is ‘immediately necessary to protect himself’ against the officer’s use of force…”

    1. It is a nice sentiment but it seems there should be an “in the unlikely event that the person survives” proviso somewhere.

  7. Kansas law requires residents to provide documentary proof of citizenship before they may register to vote. An unconstitutional burden on the right to vote? A violation of the National Voter Registration Act? Tenth Circuit: Both.”

    Gotta wonder what courts will rule on the proposed “immunity passports”….

  8. “a Navajo man murders a Navajo woman and her granddaughter within the territory of the sovereign Navajo Nation.”

    Canada is a sovereign nation, the Navajo “Nation” is not.

    The larger issue is the same as with Dzhokhar Tsarnaev (Boston Marathon bomber), execution for a Federal offense in a state or Indian territory without a death penalty. Should DoJ defer to local preferences? (I’d argue that is a question for Congress to answer…)

    1. No, they should not defer to local preferences, any more than they should defer to the wishes of the victim’s family. To the extent that federal law is uniform throughout the United States, its application should not be dependent on region.

    2. “Canada is a sovereign nation, the Navajo ‘Nation’ is not.”

      I guess that’s why it’s OK that our government abrogates its treaties with them.

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