Short Circuit: A Roundup of Recent Federal Court Decisions

FIFA, vaping, and surprise tasing.

|The Volokh Conspiracy |

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

California taught Dario Gurrola how to fight fires while he was in custody, paying him $2–$6 per day. Now that he's paid his debt to society, however, state licensing restrictions bar him from becoming a full-time firefighter. This month, Dario and IJ filed suit to challenge those restrictions. Vice News has the story.

New on the Short Circuit podcast: Clark Neily of the Cato Institute (who is also a founding member of the podcast) rejoins the panel to talk gym closures in Michigan and a high-profile prosecution in D.C.

  • High-ranking former Trump Administration official pleads guilty to making false statements. But wait! The feds seek to dismiss the prosecution, a move that requires "leave of court." D.C. Circuit (over a dissent): Which means the court must dismiss the case (unless the defendant objects).
  • Federal law gives the Secretary of Homeland Security the "sole and unreviewable discretion" to subject certain aliens to expedited removal. Last year, the secretary expanded the reach of the removal process to cover all undocumented immigrants who had been in the U.S. for less than two years. Three organizations whose members are covered by this expansion file suit. D.C. Circuit: Sorry, but "sole and unreviewable discretion" means that you lose on the merits. Dissent: Ridiculous! "Sole and unreviewable discretion" means that they lose on jurisdiction!
  • In 2015, the DOJ indicted several officials of the global soccer organization FIFA, who were ultimately convicted of, among other things, conspiracy to commit honest services wire fraud. FIFA officials: That's impermissible extraterritorial application of the law; our conspiracy occurred entirely on foreign soil. Second Circuit: Ah, but you were charged with conspiracy to commit honest services wire fraud, and some of the bribes you received came from accounts at U.S. banks, which is enough of a domestic hook to support the convictions.
  • The Third Circuit ably distills the differences between standing and mootness in an opinion that does little good for the plaintiffs, whose case is moot.
  • Must statutory challenges to federal redistricting be heard by a three-judge district court? Or is the ordinary one judge fine? Fifth Circuit (en banc): All of us agree the case is moot because the election is over, but we are, nevertheless, in stark disagreement about the answer to that question of statutory interpretation.
  • Only twice has the Supreme Court ever struck down a law for violating the nondelegation doctrine, which holds that Congress may not delegate its legislative authority to another branch of government or a private party. "Ever. And none in more than eighty years." And, says the Fifth Circuit, a vaping industry challenge to Congress' delegation of authority to the Secretary of Health and Human Services (to determine if vaping products should be regulated like tobacco products) is not likely going to snap the nondelegation losing streak. [Ed.: Though we humbly suggest that at IJ we have a case that totally will.]
  • In 2009, the state of Ohio tried and failed to execute a prisoner, giving up after attempting for two hours to maintain an IV line through which to administer lethal-injection drugs. Sixth Circuit: Now on habeas review, we can't say that trying again would amount to cruel and unusual punishment or double jeopardy.
  • Inmate at Ill. state prison sues guards. District court (March 2016): If the guards wish to argue that the inmate failed to exhaust his administrative remedies, they must file a motion to that effect by April 27, 2016. Guards don't file a motion by April 27. Or by the end of discovery eight months later. Nor do they raise exhaustion in their summary-judgment motion three months after that. Then, two months before trial, they ask to file a new summary-judgment motion, raising exhaustion. Yikes! The basis for their delay? "[U]nknown reasons." District court: Good enough for gov't work. Seventh Circuit: Decidedly not good enough for gov't work. To trial the case must go.
  • Page six of this Seventh Circuit opinion features the sort of footnote that gives litigators the willies.
  • In 1972, East Chicago, Ind. officials build public housing on former lead smelting and processing site. In 2016, the city orders 1,000 residents to leave; there are wildly unsafe levels of arsenic and lead in the soil. Seventh Circuit: The residents' suit against the companies that operated on and near the site from 1906 to 1970 must go in federal, rather than state, court.
  • Arkansas police stop speeding motorcyclist (confusing him with a different motorcyclist with a very similar bike and clothing who'd evaded police stops), tase him without warning while he's fidgeting with his bike. Excessive force? Eighth Circuit: Qualified immunity. You can't tase people suspected of a nonviolent crime without warning, but he was suspected of seriously reckless driving and could have been about to flee.
  • Can the government make it a crime to truthfully report actors' ages on websites like IMDB.com? The answer—per the Ninth Circuit—will absolutely not surprise you.
  • Investigating an abandoned trailer, Beckham County, Okla. deputy sheriff determines that former police chief stole it from an Anderson, S.C. church, arrests him. The former chief is subjected to a body-cavity strip search at booking, and the sheriff puts out a press release full of incriminating allegations from the warrant affidavit. Yikes! Turns out the church had two trailers and mixed up the VINs—the former chief's trailer was not stolen but validly purchased. Double yikes! The former chief had campaigned for the sheriff's opponent in the election—might this all be retaliation? Tenth Circuit: The arrest was proper, the press release fine. But "[b]ody-cavity strip searches are not so trivial" as to be universally conducted on all detainees.
  • Schizophrenic pretrial detainee at Rio Grande County, Colo. jail exhibits a variety of distressing behaviors culminating with him removing his eyeball from its socket. Staff restrain him as he attempts to remove the other eyeball. Officers: We checked on him every 15 minutes, as medical professionals advised. Tenth Circuit: That's disputed, and since you failed to challenge whether the law was clearly established, the detainee's suit can proceed.
  • Lakeland, Fla. officials move 26-foot-tall marble cenotaph honoring Confederate dead from one city park (where it's been since 1910) to another. Eleventh Circuit: Plaintiffs who oppose the move (including one who wishes to "'vindicate the cause' for which the Confederate Veteran fought") lack standing to press First Amendment and due process claims.
  • The Eleventh Circuit goes en banc to unanimously reverse precedent holding that people lack standing to bring Fourth Amendment claims if they have abandoned their privacy interests in the objects being searched. Judge Rosenbaum, concurring: I wrote that earlier precedent, and it's totally wrong.
  • Woman sees dark-clothed men rush toward her back door in East Dublin, Ga. late one night, and she wakes her husband. Having been robbed the day before, the couple feared they were being robbed again; the husband grabs a shotgun and goes to investigate. He's shot 23 times. Turns out it's a SWAT team executing a drug raid sparked by the man who'd robbed them the day before—he told police he thought the husband was a meth dealer. The husband, a grandfather and the owner of a construction company, dies. Police find no drugs on the property. Eleventh Circuit: No qualified immunity for a cop who lied and omitted key info in his warrant affidavit. And the widow can pursue punitive damages against him.
  • Pretrial detainee at Clayton County, Ga. jail shares candy with his cellmate, another pretrial detainee who was also arrested for a nonviolent crime. (Neither has a history of violent felonies.) The cellmate demands all the candy and beats the first detainee to death when he declines to turn it over. Allegation: The jail's intake procedures don't adequately screen for violent misdemeanors, leading to nonviolent detainees sharing a cell with violent detainees. Eleventh Circuit: Plaintiffs haven't shown a constitutional violation.

Allowing ex-offenders to earn an honest living is one of the best ways to prevent re-offending. But strict occupational licensing requirements make it harder for ex-offenders to find work. A new IJ report details the numerous methods state licensing boards use to deny credentials to otherwise qualified applicants. In multiple states, an applicant can be denied a license without any consideration of their rehabilitation or on the basis of any felony, even if the crime is completely irrelevant to the license sought. Licensing boards can even disqualify applicants over their perceived "good moral character" or "moral turpitude," vague terms that let boards act capriciously. For more information and to see how your state treats ex-offenders, read Barred from Working.

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  1. Here is the footnote, referenced in the post: “The lawyer who represented McNair was Marcia Linsky, who as a
    Magistrate Judge in Allen County had denied McNair’s motion in 2007.
    Whether Indiana’s rules of legal ethics permit a lawyer to represent
    someone seeking to contest a decision that the lawyer made while on the
    bench is a question we need not consider.”

    1. “In 1972, East Chicago, Ind. officials build public housing on former lead smelting and processing site. ”

      Shades of Love Canal! Where the local government knew of the contamination, and had been warned not to build there. I wonder if similar warnings were ignored in this case, too?

      1. And why should the operators of the former lead smelting and processing operation be liable to the residents when they had no control over morons running the government building a public housing project there?

        1. I would say, the real question is whether they were complying with the applicable standards at the time. What’s the point of having rules setting out the proper standard of care, if complying with them doesn’t offer you any protection? Piles of lead dust blowing in the wind really makes that sound like a stretch.

          But investigating, I find that this was similar to Love Canal in that the local government was well aware of the contamination, and pushed forward regardless. Even if Love Canal’s contamination was much better contained prior to the building. In both cases the local government was responsible for putting people in harm’s way, even if they didn’t create the potential for harm in the first place.

          1. “Piles of lead dust blowing in the wind really makes that sound like a stretch.”

            But were there piles of lead dust blowing in the wind before the local government disturbed the soil to build a housing project?

            To me, that’s the thing that’s the stretch, Soil contamination with lead does automatically mean lead dust blowing in the wind.

            1. And if there was lead dust blowing in the wind before the housing project was built, why are only the residents of the housing project built on the site suing, not residents of down wind neighborhoods?

  2. “California taught Dario Gurrola how to fight fires while he was in custody, paying him $2–$6 per day. Now that he’s paid his debt to society, however, state licensing restrictions bar him from becoming a full-time firefighter.”

    Good grief, why in the world waste everybody’s time (and hopes) by offering him training in a field the very same state should know it would prohibit him from practicing?

    1. The prison industrial complex?

    2. Cheap labor?

      Presumably part of the training was fighting actual fires.

      I knew a Cuban refugee once who had been a dentist in Cuba. He was a graduate of an American dental school. He could never get a license to practice in the US – I’m not sure why – but the state had no compunction about hiring him to work as a dentist at the state prison.

    3. “Good grief, why in the world waste everybody’s time (and hopes) by offering him training in a field the very same state should know it would prohibit him from practicing?”

      I believe that there is a difference between fighting forest fires (which I believe he was doing) and being a city firefighter.

      1. Your beliefs are irrelevant. Evidence required.

        1. Because there is lots of Jewelry to steal in the wilderness.

          1. That’s not evidence of either the differences between forest fire fighting and urban fire fighting or what kind of fire fighting the prisoners were being trained for.

  3. “In 1972, East Chicago, Ind. officials build public housing on former lead smelting and processing site. In 2016, the city orders 1,000 residents to leave; there are wildly unsafe levels of arsenic and lead in the soil. Seventh Circuit: The residents’ suit against the companies that operated on and near the site from 1906 to 1970 must go in federal, rather than state, court.”

    But not a single official of East Chicago, Ind will ever face any kind of indictment, of pay a single dime.

  4. I’m confused by the East Chicago case. Why do the residents have claims against the former companies rather than against the bureaucrats that decided to build public housing on such ground?

    I could see claims by the city against the companies if they covered up the contamination. But if the city did their due diligence and decided to build houses there anyway, the city should be on the hook.

    1. Whoever caused the tort is always on the hook. You can’t avoid liability by passing the property on to someone else. And the residents may have claims against the city too, if it was negligent.

      1. In Love Canal, Hooker Chemical managed to get out of most liability, on the basis that they had warned the local government that the property was unsafe to build on, and had sold it for $1 with an extensive liability waiver only after being threatened with eminent domain if they refused to sell.

        Of course, that was a properly constructed waste facility, and leaked only because the local government cut through the cap after being warned not to. Somewhat different from piles of lead dust blowing in the wind.

      2. But what is the right tort here?

        I think a case can be made that the proper tort for this case was building the public housing project there.

  5. At a Jiify Lube a while back, I commented that all the staff had great tats. The guy I was talking to said – yeah, we’re all ex-cons with prison tats. The owner is too, he says, and hires ex-cons. I just said – cool. They changed my oil without a single crime committed (against me, at least).

  6. I have zero sympathy for the FIFA officials but “Ah, but you were charged with conspiracy to commit honest services wire fraud, and some of the bribes you received came from accounts at U.S. banks, which is enough of a domestic hook to support the convictions.” that’s stupid. Jurisdiction this broad can make almost any crime committed anywhere a US felony.

  7. Although not listed, very interesting Qualified Immunity decision today in 2nd Circuit – Jones v. Treubig

  8. Federal law gives the Secretary of Homeland Security the “sole and unreviewable discretion” to subject certain aliens to expedited removal. Last year, the secretary expanded the reach of the removal process to cover all undocumented immigrants who had been in the U.S. for less than two years. Three organizations whose members are covered by this expansion file suit. D.C. Circuit: Sorry, but “sole and unreviewable discretion” means that you lose on the merits. Dissent: Ridiculous! “Sole and unreviewable discretion” means that they lose on jurisdiction!

    So the plaintiffs lose either way. But that makes me curious.

    A question for the actual lawyers here: Does it really make any difference whether the plaintiffs lose on the merits or on jurisdiction?

    1. Yes, for two reasons.

      First, a decision on jurisdiction is not a decision on the merits, so if in the future they figure out a way to get around the jurisdictional issue, they can refile. If the court rules on the merits, then the case is over for good.

      Second, and this is more of a technical point, if the court lacks jurisdiction then it can’t decide the merits. So a decision on the merits would be null and void if it were later determined the court lacked jurisdiction.

  9. I absolutely loved the Seventh Circuit decision about the guards losing their failure to exhaust issue because they didn’t timely raise it, largely because I’ve spent the past 30 years seeing judges give government litigants all kinds of breaks they would never consider giving private litigants. If I had the power to change just one thing about the judicial system, it would be the penchant of some judges to treat the government differently than it does the rest of us.

    I once had a case in which a judge ordered the state to return custody of a child to its parents. The state simply ignored the order. A week later the child died in state custody, meaning that child would literally still be alive if the state hadn’t ignored the order.

    Had I disregarded a court order and a child died as a result, I rather imagine there would be significant consequences. I’d probably be looking at criminal charges. But there weren’t; instead of holding the Department in contempt and jailing the responsible social workers, the court held that because the child was dead it no longer had jurisdiction and dismissed the case.

    1. Thats terrible

  10. “The cellmate demands all the candy and beats the first detainee to death when he declines to turn it over.”

    Candy Crush Saga has taken a dark turn.

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