Short Circuit: A Roundup of Recent Federal Court Decisions

Noxious odors, trained scientists, and aberrantly salacious products.

|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: Disloyal sheriff's deputies get the ax and Euclidean policing.

  • Porn company sues anonymous porn pirate, asks district court to let it subpoena the pirate's internet service provider to determine the pirate's identity. District court: Your product is "aberrantly salacious," and on top of that, who even knows if the IP address subscriber is actually the pirate? D.C. Circuit: The videos' content shouldn't affect the company's ability to defend its copyright. And at this stage, it's at least plausible that the IP address subscriber is the person using that IP address to pirate the porn. The case may proceed.
  • Allegation: Television host Joy Reid shares a photo on Instagram of a white woman with her mouth open in front of 14-year-old Hispanic boy at a city council meeting on California's sanctuary city law. What words were coming out of that mouth? According to Reid, they were: "You are going to be the first deported" . . . "dirty Mexican!" According to the boy, they were actually having a civil conversation. The woman sues for defamation. Second Circuit: And the case will proceed. California's anti-SLAPP law is preempted by the Federal Rules of Civil Procedure, the woman is not a public figure, and Reid's posts attributed specific racist conduct to her.
  • Allegation: The noxious odors produced by a Bethlehem, Penn. landfill renders residents within a 2.5-mile radius unable to enjoy their porches, swimming pools, yards, etc. Third Circuit: The law of nuisances may be a "'legal garbage can,' full of vagueness and uncertainty," but this is a thing you can sue a landfill over.
  • Do prisoners have a protected liberty interest in not being kept in solitary confinement? Fourth Circuit: If they've already been there for four years, they sure as hell do. But they still might lose on qualified immunity grounds.
  • Following gunfire at an apartment complex, Richmond, Va. police arrive to investigate. Looking for the gunman, they begin interrogating people in the area and requesting that they show their waistbands. One man—who was not acting suspiciously before being approached—demurs and in a subsequent search is found to be a felon in possession. Was the search justified by exigent circumstances? Fourth Circuit (en banc): Nope. Concurrence: Nope. Concurrence: Nope. Concurrence: Nope, and the dissent is "bereft of any jurisprudential reasoning." Dissent: I appreciate the views of the majority and all of the concurrences except that last one.
  • U.S. Park Police officer stops an on-duty Secret Service agent who is waiting in his gov't-assigned vehicle to escort a motorcade. The stop lasts nearly an hour, far longer than it took for Park Police to confirm that the Secret Service agent was indeed an agent. Soon after (and well after the motorcade has come and gone), another park police officer pulls the agent over a second time for using his cell phone while driving (which, given his job, is not illegal). Fourth Circuit: Based on the Secret Service agent's account, seems like those stops were pretty unreasonable. His Fourth Amendment claim can proceed.
  • Under Supreme Court precedent, a school district is not liable under Title IX for teacher-on-student harassment unless the district had actual notice of the misconduct and was deliberately indifferent to it. Fifth Circuit: It really sucks that we have to apply that rule to these horrific facts.
  • Divers at downtown Houston aquarium are all trained scientists, and when they dive into the tanks to clean them and feed the animals they are conducting "scientific dives," says the Fifth Circuit, which means they are exempt from OSHA rule requiring extra safety equipment. (In fact, the equipment may make the dives less safe in these circumstances).
  • In which two-thirds of a Sixth Circuit panel "encourage[s] the interested reader to watch the video for herself" to see if Detroit officers used excessive force putting a wheelchair-bound protester into a police van. Video here. (Check your volume first. It plays automatically.)
  • Contrary to what one might believe from reading Agatha Christie, poisoning one's spouse with thallium (a tasteless white powder that looks like salt and makes one's hair fall out) will apparently not yield a mystery insoluble to all save a plucky gentleman-sleuth. The Seventh Circuit has the shocking story, which ought to come as good news to those for whom the stay-at-home lifestyle is wearing thin.
  • Detainee at Polk County, Wisc. jail is taken to hospital for (fruitless) cavity search after two other detainees report that she's hiding meth in her cavities. Seventh Circuit: The district court was right to dismiss her Fourth Amendment claims. The jail officials had reasonable suspicion, and the search—while obviously intrusive—was carried out in a reasonable, hygienic manner.
  • Following their guilty pleas on drug charges, but before sentencing, two California men catch a break when Congress passes an appropriations rider that prohibits the Department of Justice from spending money to prevent states from implementing their medical marijuana laws. Ninth Circuit: And because the two men were in strict compliance with state law, they're off the hook unless Congress makes a new appropriation. Dissent: The only problem with that holding is that the two men were decidedly not in strict compliance.
  • The feds give out grants to state and local law enforcement under a program called the Edward Byrne Memorial Justice Assistance Grant Program. May the attorney general withhold grants from so-called sanctuary cities that refuse to share information with the feds about, or allow access to, arrested undocumented immigrants? Seventh Circuit (2018), Third Circuit (2019), Ninth Circuit (2019), First Circuit (2020): No. Ninth Circuit (this week): Still no. But the AG gets a small win as the court, holding that the district court was wrong to issue a nationwide injunction, limits relief to only California. Over at the Second Circuit meanwhile, the court will not rehear its 2019 decision holding that the AG can indeed withhold the funds. Dissent: This refusal is "astonishing," and "I am, frankly, astounded."
  • Birmingham, Ala. officer shoots suspect who pointed a gun at the police. After a two-month hospital stay, the suspect is charged with attempted murder and spends 16 months in pretrial detention. The cop who pulled the trigger receives an award for the incident. But wait! A local news organization obtains dashcam video showing that the suspect was on his hands and knees when he was shot and that he did not point his gun at the officers. Charges are dropped. Eleventh Circuit: And the man can sue for malicious prosecution; no qualified immunity.
  • In 1995, a lawful permanent resident pleads guilty to resisting a police officer with violence. Under the immigration laws then in force, he remained eligible to seek a waiver of deportation. But in 1997, Congress passes a new law, under which people convicted of certain crimes are no longer eligible for those waivers (now called "cancellations of removal"). And in 2013, the feds commence removal proceedings against the man. Gov't: The 1997 law is retroactive, so the man isn't eligible to seek cancellation of removal. Board of Immigration Appeals: Sounds right to us. Eleventh Circuit: No.
  • And in en banc news, the Sixth Circuit will reconsider its decision barring Ohio officials from executing an inmate convicted of murder in 1986 who is (the original panel held) intellectually disabled. (Earlier, the inmate unsuccessfully petitioned for a new trial on the ground that bite mark evidence is applesauce.) The Fifth Circuit (over a dissent), however, will not reconsider its decision that a Houston community college board member who was censured after he accused other members of mismanagement has a First Amendment claim.

Last week, Nashville officials voted to repeal the city's ban on home businesses that welcome clients on site, an especially strange rule for the "Music City" that barred commercial home studios. Imposed in 1998 without debate or explanation, the ban prevented IJ clients Lij Shaw, a musician, and Pat Raynor, a hair stylist, from operating their businesses even though they were conscientious neighbors. They plan to apply for the city's newly minted home occupation permits as soon as they are available. Click here to learn more.

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  1. For once, video shows cops acting nicely, or at least as nicely as they can while still enforcing arbitrary laws. Be justice if whoever brought those excessive force claims was held accountable for perjury or something.

    1. Have to agree with this one. In this, case the video very clearly vindicates the police.

  2. “on-duty Secret Service agent who is waiting in his gov’t-assigned vehicle to escort a motorcade”

    He should have arrested them for interference with a federal agent on official duty.

    1. Spider-Man pointing at Spider-Man meme.

      1. Okay, that was legit funny.

  3. “Following gunfire at an apartment complex, Richmond, Va. police arrive to investigate. Looking for the gunman, they begin interrogating people in the area and requesting that they show their waistbands……”

    If the cops had done a limited pat down “Terry stop” of the people at the apartment complex after responding to a report of gunfire, my understanding is that this would be acceptable. However, having people pull up their shirts to show a waistband (never mind ankle holsters, etc) is defined as a “search”? Interesting.

    1. If the cops had done a limited pat down “Terry stop” of the people at the apartment complex after responding to a report of gunfire, my understanding is that this would be acceptable.

      The Fourth Circuit majority understands differently.

    2. If the cops had done a limited pat down “Terry stop” of the people at the apartment complex after responding to a report of gunfire, my understanding is that this would be acceptable. However, having people pull up their shirts to show a waistband (never mind ankle holsters, etc) is defined as a “search”? Interesting.

      I don’t understand your claim. Of course it’s a search, and of course it doesn’t comply with Terry, which requires individualized suspicion.

      1. +1

        I think the publicity around Mayor Bloomberg and similar things has obscured that. A Terry stop doesn’t require probable cause or a warrant. But it does require reasonable suspicion. Stopping and frisking a random person on the street is actually still unconstitutional.

    3. Terry still requires individual reasonable suspicion of the person. They are free to go ask questions but no detainment or pat down would be allowed and the person would be free to decline to stay and answer the questions.

      1. I’m not sure I grok all the back and forth in this thread. You don’t even have to consult the opinion, just look at the synopsis itself, although it does require a modest amount of dot connecting. It says the search was suspicionless – so it would be improper under Terry absent an exception. And sure enough, the question in the case was if an exception was present – here, one based on exigent circumstances.

        1. We are responding to the comment that was made saying if it was a normal pat down under Terry it would be ok but asking them to lift their shirt made it a search which he implied he didn’t think was a rational distinction. We were pointing out that even a pat down wouldn’t satisfy Terry because there was no individual suspicion.

          The comment string is therefore not about whether a Terry exception applied, but why this isn’t a Terry distinction without a difference.

  4. “Scientific” cleaning dives…

    Uh huh….

    1. As a diver, I had dig into the details : Two-way communication, safety harness and reserve air supply to dive into fourteen feet of perfectly clear water in a glass tank. Now that’s hilarious…..

      I’ve not needed all that stuff to dive 135 feet of New Jersey murk inside a shipwreck – tho I did have double tanks, two sets of posts, back-up regulator, two dive computers, back-up mask, two lights and a reel in case the viz gets really bad….

      1. That’s OSHA going crazy on over-regulation. Which is an entirely different matter and should be addressed. The scientific exception though, is silly.

        1. If the purpose of over-regulation is to hinder business to extract wink donations by politicians, and letting the regulators go nuts with it, only occasionally being reigned in (pure coincidence, I assure you), then of course science needs an exemption. They don’t really wanna hamper things, especially the core of their government-tit-attached think tank: professors.

          Nah, just because this is how most of the world works, and all of human history, doesn’t mean a modern western country with a free press hasn’t licked it!

        2. AL, that hasn’t been true since the 1990s.

    2. You don’t see a lot of behind the scenes at aquariums. They do have scientific research as part of their mission. And feeding habits and such are part of that. As for cleaning that is just as much required for the research. Obviously it is needed for the health of the animals and for the education aspect in people being able to see, but it is just as much a requirement for the research so the animals can be properly observed and evaluations made without the unforeseen variables that an unclean environment can/will cause.

      1. 1. ” They do have scientific research as part of their mission”
        -Sure.

        2 ” And feeding habits and such are part of that. ”
        -If recorded properly…

        3. “As for cleaning that is just as much required for the research.”
        -Yes…and no. And here’s where you get into problems.

        There is a difference between something required for research and something that is scientific. To put this into perspective, in running any laboratory, taking out the trash is essential to the research. But it is not a “research activity.” And reclassifying staff and how they take out the trash as “researchers” and “research activities” for taking out the trash is incorrect. Likewise, getting supplies delivered to the lab is critical to research. But reclassifying the driving of said supplies as a “research activity” is misleading an incorrect.

        1. I have to disagree. Taking out the trash won’t affect how laser light of a particular frequency refracts off the surface of various materials within the lab’s vacuum chamber. Taking out the tank slime could very well reduce unwanted variability for things being studied within the tank. If the aquarium had claimed that the scientists didn’t need protective gear while emptying trashcans (I can’t imagine what that could possibly be, but I wouldn’t be surprised if OSHA has already imagined it), I suspect the court would have ruled differently.

          1. But how supplies are delivered to the lab “can” affect the experiments. Often, if supplies are delivered outside of a given temperature range, they can be ruined.

            According to this logic, lab delivery drivers should be classified as “scientists” and exempt from OSHA requirements on truck drivers.

            1. If OSHA’s safety requirements on truck drivers had a provable effect on their ability to deliver the needed supplies, then the aquarium might have a valid case. It’s hard to imagine a realistic scenario where that could be the case.

              However, we can imagine an unrealistic, extreme scenario solely for the purposes of discussion: What if OSHA added safety requirements which (somehow) made it infeasible for truck drivers to deliver perishable foodstuffs unspoiled? Would farmers, wholesalers, and supermarkets have a valid case against such regulations, even though the new regulations were to have zero effect on delivery of the much larger category of non-perishable goods (food and much more)? I think they would. By your reasoning, they would have no case, and we’d all just have to give up commercially produced strawberries (and more).

        2. I agree with VenerableLurker

          I would also point out that aquarium did concede that the show dives aren’t scientific so it isn’t like they are trying to get everything covered so they don’t have to follow the regulations.

  5. Glad to see another Circuit has rejected the SLAPP statute in federal court. I had to litigate a case in the C.D.Cal., and the SLAPP statute made things much harder. In fact, some California federal courts apply the statute in a way that is worse than the state courts. The SLAPP statute only applies if the motion is brought within 60 days. But a Ninth Circuit decision held that the 60 day limit does not apply in federal courts. So in some cases (like mine), one party litigates a whole year, then files a SLAPP Motion, and seeks fees.
    Good riddance.

  6. Leftists say that racism is as bad as murder. In that case, make false accusations or portrayals of racism carry the same penalty as murder. Send a few of these filthy leftists to the electric chair, and watch false accusations, or really all accusations, of racism end.

  7. “U.S. Park Police officer stops an on-duty Secret Service agent who is waiting in his gov’t-assigned vehicle to escort a motorcade.”

    The only thing worse than governments spending taxpayers’ money defending police in such cases is when booths sides are spending taxpayers’ money. Only one side wins Nd the taxpayers lose twice!

    1. I’m not sure why you think either side was spending taxpayer money.

      1. You’re right — asset forfeiture victims don’t have to be taxpayers.

      2. Government agents vs Government agents. Not sure where you think there would be any party in this case not spending taxpayer money.

        1. The secret service agent is retired and is suing in his personal capacity. He’s suing the Park Police officers personally, and they’re represented by private attorneys, so I don’t see any indication that the government funding their defense. So again, I’m not sure what your basis is for saying that the litigants are spending taxpayer money.

          1. The incident in question is something that happened while the Secret Service agent was supposedly working.

            As to the Park Police, most police union contracts require the department to cover their defense when they are sued, even in their personal capacity. And they are indemnified against damage awards, the’ll never pay a dime out of pocket.

            1. The incident in question is something that happened while the Secret Service agent was supposedly working.

              And you think that means the government is financing his lawsuit?

              As to the Park Police, most police union contracts require the department to cover their defense when they are sued, even in their personal capacity. And they are indemnified against damage awards, the’ll never pay a dime out of pocket.

              Here is the Park Police CBA. Does it contain such a provision?

              https://usppfop.org/wp-content/uploads/2017/04/050822_uspp_labor_agreement.pdf

  8. That Secret Service – Park Police case is totally bizarre. There must be some backstory of which we’re unaware that explains why the Park Police would be harassing a Secret Service agent like that. (I assume the Secret Service agent was black, but even then, whoever heard of professional anti-courtesy?)

  9. “. . . Over at the Second Circuit meanwhile, the court will not rehear its 2019 decision holding that the AG can indeed withhold the funds. Dissent: This refusal is “astonishing,” and “I am, frankly, astounded.”

    This opinion used “baedeker,” which made me very happy. I’ve tossed it into some of my appellate writs, but never got an appellate court to use it in the subsequent opinion. Huzzah!

  10. Contrary to what one might believe from reading Agatha Christie, poisoning one’s spouse with thallium (a tasteless white powder that looks like salt and makes one’s hair fall out) will apparently not yield a mystery insoluble to all save a plucky gentleman-sleuth.

    You shouldn’t pick on Agatha Christie.

    From the decision:

    Medical tests superior to those available in 1961 revealed the cause: her blood and urine contained
    vastly more thallium than the natural concentration.

    Agatha Christie died in 1976. Thallium poisoning likely WAS undetectable when she wrote her books.

    1. “You shouldn’t pick on Agatha Christie.”

      They’re not, but what makes you think they are?

      “Agatha Christie died in 1976. Thallium poisoning likely WAS undetectable when she wrote her books.”

      First, why is the 1976 date relevant here? I don’t get it. Second, how is what you say any different from what you excerpted from the decision? I just don’t get it.

      Unrelatedly, although CA7 panel assignments are purportedly random (see Practitioner’s Handbook for Appeals § IV), I’m hard pressed to believe it’s a pure coincidence that Judge Easterbrook got assigned to the panel and then wrote an opinion mentioning the Mark Easterbrook character in the novel. Had it been me, I would have referenced this instead, but then I’m less well-versed in literature than movies, and it’s probably to everyone’s benefit that I’m not a federal circuit judge anyway.

      https://www.imdb.com/title/tt0115033/?ref_=fn_al_tt_1

      1. “First, why is the 1976 date relevant here? I don’t get it.”

        Try reading what I quoted from the decision.

    2. He’s not picking on Agatha Christie. He’s picking on Agatha Christie readers.

      1. I read it as implying that Christie was straight out wrong and she fooled her readers.

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