Short Circuit: A Roundup of Recent Federal Court Decisions

Botanical accuracy, puppycide, and accusations of impropriety.

|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: Is the Supreme Court finally going to do something about qualified immunity? Click here for Apple Podcasts.

  • You know how sometimes you just can't get that last bit of whatever out of the bottle? Well, plaintiffs' attorneys hear you, and they are suing L'Oréal about it, because an ounce of eye cream should mean an ounce of eye cream you can actually use, goddammit. But the case has a wrinkle that won't go away—strict federal law that dictates exactly what cosmetics containers must say. So, holds the Second Circuit, there's no arguing that L'Oréal must better label the amount of its products.
  • Facing massive budget shortfalls, the Nassau County Interim Finance Authority puts a freeze on all raises for employees of Nassau County, New York. Union members—whose collective-bargaining agreement requires raises—sue, alleging that NIFA's actions violate the Contracts Clause. The county, they claim, faces only a "paper crisis" caused by NIFA's insistence that the county start using Generally Accepted Accounting Principles. Second Circuit: Whether judged against the GAAP-calculated $176 mil budget deficit or the non-GAAP $49 mil deficit, the wage freeze was reasonable and necessary. Concurrence: I totally agree, which is why I don't join the majority's disquisition on other aspects of Contracts Clause jurisprudence.
  • Accusations of impropriety fly back and forth between the majority and the dissents in a pair of (en banc) Fourth Circuit decisions addressing whether an Emoluments Clause suit may proceed against Donald Trump in either his official or individual capacity.
  • Student seeking to join LSU fraternity dies after a night of hazing that saw his blood alcohol level reach .496. Can his parents sue the school? LSU: We realize Fifth Circuit precedent says we waived sovereign immunity by virtue of accepting federal funds—a precedent set 20 years ago in a case about our lack of women's soccer and softball programs. But a Supreme Court decision about Obamacare has changed things. Fifth Circuit: Not so. The suit shall proceed.
  • Woman returns home from trip to amusement park with her granddaughter to find Detroit police have raided her home (based on tip from confidential informant). No drugs are found, and the woman is charged with no crime. But during the raid police killed her dog, a Labrador Retriever named Mandy, whose body they disposed of in a landfill. Sixth Circuit: Might could be the officer who shot the dog—who, by the way, has shot 80 to 90 dogs during the 3,000 drug raids he's participated in—used excessive force.
  • Looking to arrest Detroit-area fugitive who goes by the alias Marvin Seals, police instead arrest Marvin Seales. Despite Seales's repeated protestations of innocence, it takes police 15 days to realize their goof. A jury later awards him $3.5 mil in a lawsuit against the arresting officer. Sixth Circuit: Jail officials may be on the hook, but the arresting officer isn't. He had probable cause and handled the case for less than three hours.
  • ATF agent fires into vehicle in St. Louis parking lot, kills a passenger. Was the car heading toward agents? Was the car already disabled when the agent fired? Passenger's mother: The fact that the ATF destroyed video that might have shed some light should mean some inferences are drawn against the feds. Eighth Circuit: Nope. There's no evidence the video was destroyed in bad faith.
  • In 2014, California sent letters to seven health insurers, instructing them that they must immediately include coverage for legal abortions. Ninth Circuit: And the Skyline Wesleyan Church—which must now buy insurance that covers abortion services—has standing to challenge that policy as a violation of its Free Exercise rights.
  • Woman serving a prison term in Colorado is transferred to a community corrections program. One of the conditions of being in the program is that participants stay employed. But the woman suffers from spinal stenosis, which is aggravated after she falls in the shower. Community corrections program: Given your disability, we don't think you'll be able to hold down a job, so back to prison you must go. Tenth Circuit: The woman's claims under the Americans with Disabilities Act and the Rehabilitation Act can proceed.
  • In 1893, the Supreme Court famously elevated common speech over botanical accuracy when it held that tomatoes are vegetables. Now the Eleventh Circuit holds that spiders are insects. Your editors, with their strong feelings about usage, weep quietly. As does, we imagine, the plaintiff, who, thanks to an "insect" exclusion, was not insured after he moved into his new house in Alabama, only to discover that it was infested with deadly spiders. [Clarification: The homeowner knew about the spiders before buying the policy. Our apologies.]
  • Police officer fires into vehicle on Brighton, Ala. street, kills a passenger. Was the passenger unarmed and nonthreatening or reaching for a gun? District court: Qualified immunity. Eleventh Circuit: No, the case can proceed.
  • Utah's drug dogs may be very good pups, but the state's training program is so flawed that they can't be trusted to reliably alert to the presence of drugs. So holds the U.S. District Court for the District of Utah. (And in this particular case, K9 "Tank" didn't alert at all, making the resulting search of a suspect's car all the more eyebrow raising.)
  • After Wisconsin's top health official orders residents to stay home on pain of fines or imprisonment, the legislature says, not so fast: follow procedures applicable to an emergency if you want to pass such a sweeping rule. The Wisconsin Supreme Court agrees—and strikes down the order.

Jay Singleton is an eye surgeon in North Carolina who wants to save his patients money. For years, Dr. Singleton has wanted to offer procedures at his office for thousands less than the nearby hospital. And he has all the equipment he needs to start operating—if he were legally allowed to. Unfortunately, North Carolina has a certificate-of-need (CON) law for healthcare services, which means Dr. Singleton can't operate in his office unless the state projects a "need" for a new operating room in his area. Because the state has projected no "need" through at least 2022, Dr. Singleton's patients lose, while the hospital down the street (the only nearby provider with a CON) wins. Now Dr. Singleton is challenging the CON law in state court, arguing that the law grants existing providers an unconstitutional monopoly and does nothing to protect patient health. Click here to learn more.

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  1. “Sixth Circuit: Might could be the officer who shot the dog”… That grammatical construction, called a “double modal”, is common in colloquial speech in the South. But in Dee Troit City? Probably not.

    1. Forcing you to look it up to see if it was a mistake was clearly educational. I didn’t need to, and I am in Dee Troit City.

  2. Why was there any need for a discussion of dog training in the Utah case? The dog didn’t alert. You can throw the case out on that alone. You don’t need to discuss whether he was properly trained to alert when he DIDN’T.

    1. As is often the case with these, the summary is wrong. The dog exhibited behavior which the handler characterized as alerts, but which the defense expert (and the judge) did not.

      1. At what point might we charge the handler with fabricating evidence?

      2. From when I read it, the handler said they weren’t alerts but the dog seemed interested anyway. Not really the same thing. But regardless, if the court classified it as “not an alert” (which they did), then there was no need to get into any further training questions.

    2. There was a horse called Clever Hans, which could do simple math. Researchers looking at films could do the math with the sound off, not hearing the question, just watching for minute movements by the trainer which signaled the horse to stop tapping his foot when he got to the right number.

      If an officer, thinking himself objectively disinterested, doesn’t show a higher interest in people he wants to get because he “knows” they’ve got it, doesn’t subconsciously signal the dog, I’d be shocked.

  3. Might be that every government (city, county, state, and federal) destruction of evidence should be considered bad faith, because you can’t ever prove one way or the other 90% of the time? I think that would make much more sense than the alternative.

    1. Agreed. The moral should be: Take care of evidence. Because if it’s in your control and it gets destroyed, we’re gonna assume either bad faith, or, that it contained information harmful to your legal/factual arguments.
      I just don’t get the policy arguments for holding as this court did…a huge incentive to destroy or “lose” evidence in the future.

  4. “As does, we imagine, the plaintiff, who, thanks to an “insect” exclusion, was not insured after he moved into his new house in Alabama, only to discover that it was infested with deadly spiders. [Clarification: The homeowner knew about the spiders before buying the policy. Our apologies.]”

    Bad facts make for bad law.

    1. In 1893, the Supreme Court famously elevated common speech over botanical accuracy when it held that tomatoes are vegetables.

      Vegetables are not sweet. Fruits are. Melons besides water are an abomination.

      Modern scientific classification is an afterthought bolted onto common usage. My fellow atheists sometimes argue one of the proofs the Bible is wrong is that it classifies bats as birds. Yet that’s a modern(ish) redefinition, and therefore not evidence of inaccuracy.

    2. “Your honor, spiders can’t exist without insects to eat. Are they getting Door Dash?”

      1. Based on her reaction, my wife thinks that even the smallest, most innocent spider is plotting her demise. So, if it’s a “deadly spider,” I’m assuming they occasionally eat humans. And a spider can live a long time on even a single human.

  5. “Nope. There’s no evidence the video was destroyed in bad faith.”

    It was the ATF. That’s all the evidence you need. There should be an irrebuttable presumption of bad faith when it comes to the ATF.

    1. It was the government. That’s all the evidence you need. There should be an irrebuttable presumption of bad faith when it comes to the government*.

      FTFY

      *No, it’s not just the feds either.

      1. There should be an irrebuttable presumption of bad faith when it comes to the government

        Oh come on! You’re basing that on nothing other than all of human history and experience, such that it was the guiding principle behind constitutional design.

  6. ” Eighth Circuit: Nope. There’s no evidence the video was destroyed in bad faith.”

    Spoliation doesn’t apply to the government? The destruction of the video should create a presumption it was done in bad faith.

  7. There’s no evidence the video was destroyed in bad faith.

    You mean there’s no recording of one guy saying to another,

    “Hey, we better get rid of this tape before it’s disclosed, because it blows hell out of our case?”

    Well. That settles it, I guess.

  8. “In 1893, the Supreme Court famously elevated common speech over botanical accuracy when it held that tomatoes are vegetables.”

    Botanical accuracy is for botanists.

    1. “Vegetable” isn’t really a botanical term, anyway – it’s a culinary term.

  9. “Accusations of impropriety fly back and forth between the majority and the dissents in a pair of (en banc) Fourth Circuit decisions addressing whether an Emoluments Clause suit may proceed against Donald Trump in either his official or individual capacity.”

    The dissents make interesting reading, showing how the district court failed repeatedly to rule on the President’s claims of immunity, while requiring him to provide the information requested.

  10. Tomatoes are both a culinary vegetable and a botanical fruit.

    1. Animal/mineral/vegetable

      A tomato isn’t an animal or a mineral, therefore it must be a vegetable. 🙂

  11. Regarding the Detroit dog case …

    Really? So some unknown person can come on the front porch of my house while Im not there, sell drugs to a police CI, and that gives probable cause for a search of my house? And the killing of my dog?

    WTF?

    1. Forget the dog. They think it would justify killing you, your wife and your kids if you twitch wrong when your front door explodes in the middle of the night.

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