Short Circuit: A Roundup of Recent Federal Court Decisions

Excessive radon, Armageddon, and a hopeless romantic.

|The Volokh Conspiracy |

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

This week, IJ and its clients won a huge victory at the Supreme Court, where SCOTUS ruled that it's unconstitutional for school choice programs to exclude religious schools. Click here to read Anthony Sanders, the director of IJ's Center for Judicial Engagement, explain how we obtained the ruling only by the skin of our teeth, overcoming some truly metaphysical arguments about time and space. And click here for an in-depth podcast episode about the case.

  • Allegation: In 1992, Connecticut officials open new prison built on former waste site that they know is likely leaking radon, the leading cause of lung cancer among nonsmokers. Subsequent testing confirms excessive radon levels, but the mitigating system they install in 2014 doesn't remedy radon in the cell blocks. Officials: There may be precedent saying we can't subject inmates to other carcinogens, but there is no precedent regarding radon specifically. Second Circuit: No qualified immunity.
  • In which the Second Circuit allows the release pending trial of two defendants—attorneys in their early 30s who, in response to the death of George Floyd, allegedly threw a Molotov cocktail at an unoccupied NYPD cruiser.
  • Distraught at losing a place on the varsity cheer team to a freshman—a freshman!—Pennsylvania high school sophomore shares some choice words on social media. Fellow students alert the cheerleading coaches, who promptly cut the complaining student from the JV team. Student sues, alleging a First Amendment violation. Third Circuit: And she wins. Her off-campus speech was fully protected by the First Amendment. Concurrence: We don't have to go quite that far to hold that she wins.
  • Huntington, W.Va. officers respond to report of a closing-time brawl outside the ironically named Rehab bar. Upon arriving, one officer is told by a bystander that a black man with red pants and a gun had just left. Other officers locate a black man with red pants a block away, frisk him, and find a gun. Which in no way violated the man's Fourth Amendment rights, holds two-thirds of a Fourth Circuit panel.
  • In 2018, Maryland banned "rapid fire trigger activators"—devices that permit guns to be fired faster. Unlike other states, however, Maryland didn't grandfather in existing owners; everyone has to get rid of their devices. Gun rights group sues, alleging a taking in violation of the Fifth Amendment. Fourth Circuit: The law doesn't require owners to turn the devices over to the government or a third party; they could also just throw them out. So no taking. Dissent: Forcing someone to get rid of their stuff is a taking.
  • Oberlin College's hearing panels for sexual assault allegations may be a kangaroo court, but is it a kangaroo court that treats the Bruces worse than the Sheilas, in violation of Title IX? Sixth Circuit: Taking the allegations as fair dinkum, the aggrieved bloke has a case. Dissent: Pig's arse!
  • In the Sixth Circuit, a Michigan man convicted of murdering a woman will get a new trial. Without overwhelming evidence of guilt, the court cannot ignore that the man was shackled in front of the jury. "Visible shackling undermines the presumption of innocence."
  • Inmate at Muskegan, Mich. prison files pro se lawsuit against guard, alleging that guard repeatedly brandished a knife and threatened to kill him. District court dismisses the case without requiring the guard to answer (a shortcut blessed by the Prison Litigation Reform Act). Sixth Circuit: That was premature; the inmate's Eighth Amendment claim is at least colorable. Dissent: The claim is decidedly not colorable. And even if it were, the district court could have sua sponte asserted qualified immunity on the guard's behalf and dismissed on that ground.
  • The Seventh Circuit brings us its latest installment addressing the propriety of certain Wisconsin election laws under the Constitution and the Voting Rights Act. The upshot: The state can limit the hours and days for early voting; the state can require people live there for 28 or more days before becoming eligible to vote for offices other than the president; the state can require documentary proof of residence to register; the state can limit sending absentee ballots via email or fax to just a few narrow categories of voters; the state cannot require educational institutions to indicate whether students are citizens for them to be able to use college IDs; the state can refuse to accept expired student IDs; the state cannot demand students provide proof of current enrollment in addition to ID; and the district court must reassess whether the state has made it too hard to get a voting credential for people who cannot readily obtain one.  
  • Racine, Wisc. man impersonates a DEA agent so that he can get reacquainted with a high school crush. Not amused, the object of the faux-agent's affection calls the cops. Defendant: I'm not a criminal, just "a hopeless romantic." Seventh Circuit: "Those roles need not be mutually exclusive."
  • After Christian County, Mo. sheriff pleads guilty to embezzling $50k from the county (and after he stockpiled three tons of food in the county jail's basement in preparation for Armageddon), a new sheriff is elected. He promptly fires two deputy sheriffs who supported his opponent in the election. Were they fired for their political activity in violation of the First Amendment? Eighth Circuit: A deputy sheriff is the sheriff's alter ego (in Missouri, anyway), so the sheriff can demand political loyalty upon pain of firing.
  • Suspected drug dealer flees from St. Louis police, striking a patrol car and an officer. The officers see a gun in the suspect's vehicle, and one of them says he's "going to kill this motherfucker, don't you know it." That cop does, indeed, shoot and kill the suspect. Prosecutors decline to charge the cop, but, after activists protest, they reverse course and charge him with first-degree murder. He's acquitted. Eighth Circuit: And he cannot sue the prosecutor for bringing charges against him.
  • When Congress failed to appropriate money to build a wall on the border with Mexico, was the Trump administration authorized to divert $2.5 bil in DoD funds to build it anyways? Ninth Circuit (over a dissent): No and no
  • "I SAID, THE ELEVENTH CIRCUIT UPHELD TWO FLORIDA STATUTES REGULATING HEARING AIDS WHILE REMANDING FOR THE DISTRICT COURT TO CONSIDER A THIRD SUCH LAW ON THE MERITS."
  • In 1937, the Missouri Supreme Court upheld state-mandated racial segregation, ruling that barring a black student from the University of Missouri School of Law did not violate equal protection because the state was willing to pay his tuition at an out-of-state school. (The Supreme Court reversed, but the student went missing and his fate is unknown.) Missouri Supreme Court (2020, see footnote 7): Parties really need to stop citing our 1937 decision, even for otherwise unassailable points of law.
  • And in en banc news, the Ninth Circuit will not reconsider its decision allowing the "Fairbanks Four" to sue the city and police officers over their now-vacated murder convictions and subsequent 18-year incarcerations. Dissent: Their convictions were vacated by agreement with prosecutors, not after judicial review; so the convictions haven't been invalidated. We're the only circuit to allow damages claims to go forward in such circumstances. 

Calling themselves end-of-life doulas, some kindly senior citizens in rural California have drawn the ire of state regulators for teaching the terminally ill and their families how to hold home funerals. Though home funerals are legal in California, officials are cracking down on the volunteer doulas for acting as "funeral directors" without a state license and demanding that their tiny nonprofit build a milliondollar funeral home. Do the people of California really need to be "protected" from the likes of retiree Donna Peizer, an 80-year-old doula with three university degrees who helps families as a labor of love? IJ doesn't think so. That's why we've teamed up with Donna, her fellow doulas, and Californians who want their wisdom and assistance to vindicate the First Amendment right to give advice and hold home funerals on private property without pointless government interference. Click here to learn more.

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  1. Well done. 🙂

  2. Radon comes from granite and is a serious issue if your house is on ledge. Also can be in well water from a drilled well.

    I know of a house where the last FIVE housewives living there died of cancer. It’s real.

    1. Yes, but the question I have is if the guards or the prisoners were exposed to high levels and have a higher incidence of cancer than the general population.

      1. IF you trust the government — and that’s an issue — the EPA has developed charts that compare various radon levels to various smoking levels in terms of cancer risk.
        I have no idea how the EPA did this, but they have lots of scientists and claim they can defend it. Can they? — well, do you trust the government?

        All I can say is they have a “this is bad” level, and the prison was in excess of it. Remember that it can take 40-50 years for cancer to develop….

        1. It was a similar issue with Bush 43 and arsenic — and lowering the level from 50 parts per billion to 10 parts per billion. A lot of private wells come in at 300 – 500 parts per billion, often more, and if you shut down the municipal supply that is 50 PPB, people will be drinking water that is a lot worse. (Arsenic at these low levels causes cancer, it occurs naturally in the rocks.)

          This is not simple stuff….

          1. The well water at my last workplace was to be used only for washing and similar uses, they had water coolers for drinking, for that exact reason.

            But there is actually quite a bit of evidence that arsenic exhibits “hormesis”; Is a toxin at high levels, and beneficial at low levels. This is pretty common in environmental toxins that we’ve been exposed to our entire evolutionary history.

            See, for instance, Inorganics and Hormesis

            The EPA systematically refuses to take hormesis into account.

            1. Well we never had problems with mold until we took lead and mercury out of paint — both are highly toxic to mold.

    2. I know of a house where the last FIVE housewives living there died of cancer. It’s real.

      No, you don’t.

  3. This ruling denying qualified immunity doesn’t surprise me, because you don’t need to point to another case with exactly the same facts to defeat qualified immunity — as the Supreme Court and other courts have explained many times:

    “Officials: There may be precedent saying we can’t subject inmates to other carcinogens, but there is no precedent regarding radon specifically. Second Circuit: No qualified immunity.”

    As the Supreme Court explained in United States v. Lanier (1997), “The easiest cases don’t even arise. There has never been…a section 1983 case accusing welfare officials of selling foster children into slavery; it does not follow that if such a case arose, the officials would be immune from damages [or criminal] liability.”

    If the standard media narrative about what Derek Chauvin did to George Floyd were true (which remains to be seen), he would be denied qualified immunity. As the civil-rights lawyer Chris Wiest said, “I do civil rights cases. And I sue police. I assure you, there is no qualified immunity in [the Floyd] case for the officers involved on these facts with the video evidence.” Qualified immunity does not apply when a government official commits a violation of “clearly established” constitutional rights. That includes violations that are so outrageous or unique that no prior court ruling could ever have dealt with “nearly identical” facts.

    The fact that a cop has chosen to abuse you in a novel way doesn’t mean courts will grant him qualified immunity, and it doesn’t mean it doesn’t count as “excessive use of force.” For example, the fact that cops previously violated the Constitution by beating or shooting the people they arrested didn’t keep the Ninth Circuit from denying qualified immunity to cops who put pepper spray in people’s eyes. The fact that police chose a novel way to use excessive force didn’t prevent the judges from finding it was still a violation of “clearly established” constitutional rights. (See Headwaters Forest Defense v. Cty. of Humboldt, 276 F.3d 1125 (9th Cir. 2002)). Similarly, a court ruled that prison officials violated clearly established constitutional rights if they failed to remove items from an inmate’s cell that he could use to hang himself. It allowed the officials to be sued, even though the appeals court had never before confronted nearly identical circumstances, and it ruled the prison officials could be sued even if they did not intend specifically to cause the inmate’s death. (See Converse v. City of Kemah (2020)).

    1. Blind, I think.

      Qualified immunity does not apply when a government official commits a violation of “clearly established” constitutional rights. That includes violations that are so outrageous or unique that no prior court ruling could ever have dealt with “nearly identical” facts.

      How does this explain QI for stealing $225,000 during a search?

      There are many many cases where QI shouldn’t even be a consideration, since the actions were just plain illegal by ordinary law, regardless of what the Constitution says. Yet somehow cops got QI.

      1. Section 1983 only provides a remedy for actions that violate the constitution, not those that are “just plain illegal by ordinary law”.

        1. Noscitur, not quite. See Blessing v. Freestone (citation omitted):

          Section 1983 imposes liability on anyone who, under color of state law, deprives a person “of any rights, privileges, or immunities secured by the Constitution and laws.” We have held that this provision safeguards certain rights conferred by federal statutes. In order to seek redress through § 1983, however, a plaintiff must assert the violation of a federal right, not merely a violation of federal law.

      2. IIRC, while they granted QI in that case, they actually dismissed because the officers didn’t steal from the couple. Because they had a lawful warrant and they lawfully seized the items per the warrant, that means they stole the items from the police department not the couple.

        1. Yes, I know, but to non-lawyers, the distinction is vanishingly small. One might ask why the police / city didn’t arrest them for theft. One imagines it is exactly the same license to be a jerk.

        2. that means they stole the items from the police department not the couple.

          There was one guy here who kept claiming that, but that person did not understand the difference between possession and ownership.

    2. Exactly. And EPA action levels come to mind — it wouldn’t be allowed in a school.

    3. It is true that qualified immunity doesn’t require an exact fit between previous precedent and the present case. But it often does require a much too close of a fit.

      And the closeness of fit required does tend to vary across cases. There have been plenty of outrageous situations where qualified immunity has allowed wrong-doers to walk.

  4. While the Second Circuit’s ruling is correct, it’s a closer case than the court suggests. A legion of substances are carcinogenic in large enough doses, to the point where California’s Proposition 65 mandating carcinogen labeling has become a joke, because of how many commonly-used items contain a small quantity of some carcinogen. But radon is not simply any old carcinogen, but a substantial carcinogen, in the same sense as tobacco smoke, which prior precedent already addressed, rendering it clearly established that such a risk is deemed to be in violation of the 8th amendment.

    1. Isn’t there a difference because it is in excess of a Federal “action level”?

  5. As the Supreme Court explained in United States v. Lanier (1997), “The easiest cases don’t even arise…”

    But the easiest case did arise. It was Jessop v. Fresno, where the cops were accused of stealing hundreds of thousands of cash and rare coins. And the ninth fucked it up.

    1. The Ninth Circuit probably did f*ck it up in Jessop v. Fresno.
      But it didn’t say the people robbed by the cops had NO remedy. It said they had no claim under the FOURTH AMENDMENT. The Fourth Amendment is designed more to protect privacy interests than property interests, which might be protected instead by the 5th and 14th Amendments. Other courts have said that such robbery also violates the Fourth Amendment — there is no reason the same conduct can’t violate multiple constitutional provisions. The Ninth Circuit disagreed. And one Fourth Amendment scholar on Twitter expressed uncertainty about whether the Fourth Amendment is the source of protections against theft by the police, as opposed to other constitutional provisions.

      1. “The Fourth Amendment is designed more to protect privacy interests than property interests”

        Hmm, my copy of the 4th says “The right of the people to be secure…against unreasonable searches and *seizures*…”

      2. Well, the fourth amendment applies to seizure as well as theft, and and an illegal seizure is necessarily unreasonable.

        And the court found separately that there was no established 14th Amendment SDP right against theft. Now it could be that Jessop lost because he said SDP instead of PDP. If so, that strikes me as weak.

        But here, the cops managed to violate rights expressly protected by two clauses of the Constitution, without even the need for case law, and the court still found that the right was not clearly established.

        1. Yeah, you’re right. The Ninth Circuit was outright wrong. And really, Jessop shouldn’t have lost just because he said substantive due process instead of procedural due process. And since there was likely no state post-deprivation remedy in state court, the PDP claim was probably right (if there were such a remedy, some courts would require that the state court remedy be pursued first, before suing in federal court, see, e.g., McKinney v. Pate).

          1. And since there was likely no state post-deprivation remedy in state court, the PDP claim was probably right

            What’s your basis for that claim?

        2. Well, the fourth amendment applies to seizure as well as theft, and and an illegal seizure is necessarily unreasonable.

          So what? The seizure was made pursuant to an unquestionably valid warrant, so it wasn’t illegal?

          1. Just stop.

      3. What kind of bizarro world do you have to inhabit for theft to be a reasonable seizure?

        The 4th Amendment is designed to protect against unreasonable searches and seizures. One thing that could make a search unreasonable is that it unduly violates privacy. But quite obviously, a seizure can be rendered unreasonable for reasons other than privacy. To say the 4th Amendment protects privacy does not imply it does not protect other interests as well.

  6. IANAL so was surprised by this

    […] both had friends and family explain that they were willing to post $250,000 bonds as bail, for which they would be jointly and severally liable if defendants left their homes in a nonapproved manner (a likely predicate to engaging in the type of conduct that may harm the community).

    in the Molotov cocktail case.

    I didn’t realize that a possibly minor violation of bail conditions could cause those putting up the bail to lose it as I had always thought that the bail was sacrificed only for for the defendant’s failure to appear and even then that, upon appearance, the bail was refunded (else why would there be “bounty hunters” — why would a bail bondsperson pay a cut to a bounty hunter if delivering the defendant didn’t result in the bail bondsperson liability being eliminated).

    I guess I’ll be very careful if ever asked to post bail for someone.

    1. Fed. R. Crim. P. 46(f) authorizes forfeiture of the bond if a condition is breached. The same rule also authorizes setting aside the forfeiture if the poster effects the return of the defendant to custody.

      State practice in this area will, of course, vary between jurisdictions.

  7. I was not aware a court could cancel an opinion like the Missouri court just did…

  8. “IJ and its clients won a huge victory at the Supreme Court, where SCOTUS ruled that it’s unconstitutional for school choice programs to exclude religious schools.”

    From the IJ website: “”IJ litigates to limit the size and scope of government power…”

    How does a requirement that government spending be *wider* than it was fulfill that mission?

    1. Nice quibble; you must be both a lawyer and a statist.

      1. A statist who wants to limit government spending?

        1. How does a school choice program increase government spending? It diverts existing tax dollars from public schools.

          1. Public schools which will need fewer dollars because they are educating fewer children.

        2. Do you think consistent treatment is important? If the State is going to steal, they need to at least steal fairly. It is not anti-individualist to want fair play. One need not only demand less government; one may want fair government on the way to less government.

  9. “Suspected drug dealer flees from St. Louis police, striking a patrol car and an officer. The officers see a gun in the suspect’s vehicle, and one of them says he’s “going to kill this motherfucker, don’t you know it.” That cop does, indeed, shoot and kill the suspect. Prosecutors decline to charge the cop, but, after activists protest, they reverse course and charge him with first-degree murder. He’s acquitted. Eighth Circuit: And he cannot sue the prosecutor for bringing charges against him. ”

    So basically, leftist prosecutors will use “process is the punishment” against anyone who black activists scream about.

    1. A WITCH HUNT against this cop you say?

      1. Pretty much.

        1. I think you missed my point. Let’s say the prosecutor is accused of abuse of her office for this investigation, she might tweet it’s a WITCH HUNT on her. She’s just asking for suspicious activity to be investigated…

    2. How about him suing the activists?

      1. The activists should be rounded up and given a hydrogen cyanide shower.

        1. NO! And because what it says about us and not them.

          They don’t deserve due process, but we are a people who will insist on them getting it. Because of who WE are…

          1. Yep, unfortunately. And that’s why we’ve lost the past 60 years.

            1. No — we’ve lost because we abandoned K-12….

  10. “Fellow students alert the cheerleading coaches, who promptly cut the complaining student from the JV team. Student sues, alleging a First Amendment violation.”

    So students in extracurricular activities can be kicked off if not submitting to a urine test but can’t be cut for criticizing the coaches and teammates?

  11. “latest installment addressing the propriety of certain Wisconsin election laws”

    When extreme gerrymander is not enough (presidential election edition)…It’d probably be less work for the WI GOP to just…expand its appeal rather than limiting turnout…

    1. Please explain, how the GOP limited turn-out. Did they close Precincts in predominantly Democrat areas? Arrest them for trying to vote? Demand a Paternity Test? What?

  12. Why in the world would funeral directors need a state license? Do wedding planners?

    1. I don’t know, you’re the big government supporting liberal Democrat, why don’t you find out and let us know.

      On a serious note, bodies are not allowed to be buried just anywhere on your private property. They are bad for the ground water and if they turn up again when somebody generations later buys your home, it’s not likely there will be records showing that the bones are just Aunt Edna who died in her sleep and not a murder victim.

      1. Actually, in Maine….

      2. On a serious note, bodies are not allowed to be buried just anywhere on your private property.

        They generally are, but not sure what that has to do with the topic; funerals and burials are different things.

    2. Improper handling and burial of decomposing bodies — which may also be contagious depending on what the person died of –is a public health risk. Big time….

      In mid evil times, they would catapult a dead body over the ramparts….

  13. End of life Doulas…we could have used them in Jersey a couple of months ago.

  14. As a ‘stralian, that really needs to be ‘blokes’ rather than ‘Bruces’

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