Short Circuit: A Roundup of Recent Federal Court Decisions

Apple permits, laser beams, and Nazis in Skokie.

|The Volokh Conspiracy |

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

Slaughterhouses are the weak link in the nation's meat supply chain: Just over 50 facilities account for 98% of all cattle slaughtering in the United States. So when the coronavirus began to ravage meatpacking plants, beef and pork went scarce. To prevent future shortages, Congress is considering the PRIME Act, which would ease restrictions on local, small-scale slaughterhouses. Over at Forbes.com, IJ's Nick Sibilla has more.

New on the Short Circuit podcast: Special guest Christina Martin of the Pacific Legal Foundation—a recent victor at the Michigan Supreme Court—joins the panel to talk tax forfeitures and excessive fines.

  • Barge drops anchor in the Long Island Sound while being towed by a tugboat. The anchor damages an undersea cable, causing oil spillage that costs New York's Power Authority $10 mil to clean up. Can the Authority recover from the owner of the barge and tugboat? The case should not have been dismissed, says the Second Circuit; the cable does indeed count as a "facility," as defined by the relevant federal statute.
  • To incentivize companies to relocate to New Jersey, the Garden State's "Business Employment Incentive Program" would sometimes grant them millions of dollars in unencumbered cash. IRS to program beneficiary: That $56 mil New Jersey gave you between 2010 and 2013? That's taxable income. Tax court: No, the grants were merely capital contributions. Third Circuit: It's taxable income.
  • In 2015, at the request of the mayor, a local business group that organizes Natchitoches, La.'s annual Christmas parade (a 100-year-old tradition) bars the display of the Confederate battle flag, which an organization of male descendants of Confederate soldiers had paraded with many times over the years. Fifth Circuit: Can't sue the city over that. Concurrence: If you can't censor the Nazis in Skokie, you can't censor this. But plaintiffs didn't sue the right people in time or develop the right arguments.
  • After two trials and a 2016 trip to the Fifth Circuit, ExxonMobil is slapped with a $20 mil penalty for thousands of Clean Air Act violations at its massive Baytown, Tex. complex. But wait! Did the citizens who filed suit have standing? Fifth Circuit: The case must go back to the district court to determine whether each individual violation is fairly traceable to plaintiffs' injuries. Partial dissent: We should take this thing en banc to sort out the mess that is our precedent, which is just one ipse dixit after the next.
  • After doctor finds 33 fractures in 3-month-old's ribs, legs, and shoulder blade, the baby is taken from his parents for several years. His brother is born the following year, and he is taken as well. Yikes! The older brother has a bone disease, and a Tennessee court orders both boys returned. Can the parents sue the doctor for failing to test for or tell anyone about the possibility of such a disease? The Sixth Circuit says no; we've never held that doctors can be liable for making false or reckless statements in support of a child removal (and don't so hold here), so qualified immunity. (The social workers and the hospital are off the hook, too.)
  • Persons who reenter the U.S. after previously having been deported can seek "withholding of removal." But are they entitled to a bond hearing while that withholding-of-removal proceeding winds its way through the courts? Sixth Circuit: We join with the Third and Ninth Circuits—and break with the Second and Fourth—in saying no. Partial dissent: Statutorily, that's correct, but the length of this detainee's detention (28 months and counting) violates due process.
  • Allegation: A series of medical staffers at Michigan correctional facilities decline to order diagnostics or provide treatment for inmate with multiple sclerosis despite his repeated requests, relapses. His cognitive function declines to the point where he consumes his own feces and sucks his thumbs. (He dies in a nursing home.) Sixth Circuit: Most of his estate's claims were filed too late, but (over a dissent) a pair of physician's assistants might have been deliberately indifferent to his medical needs.
  • Nonprofit devoted to defending campus speech sues administrators at the University of Illinois at Urbana-Champaign, alleging that various campus policies violate the First Amendment. Seventh Circuit: No standing to challenge two of the policies, and the challenge to the third—a requirement that speakers receive prior approval before distributing campaign literature—is moot because the University repealed that policy. Dissent: I agree on the first two policies, but the third wasn't repealed until after this litigation began and could be reinstated at any time; that claim should move forward.
  • Oklahoma and the Creek Nation are not the only ones at odds over 19th-century treaties establishing reservations and the creeping boundaries of the United States. A dispute between Hobart, Wisc. officials and the Oneida Nation came to a head after village officials fined the Nation for holding its annual Big Apple Fest without a village permit. The Seventh Circuit concludes that it is indeed Oneida Nation land.
  • Allegation: After actress Ashley Judd rebuffed advances by disgraced Hollywood producer Harvey Weinstein, Weinstein told director Peter Jackson that she was "a nightmare to work with," leading to her losing a major role in the Lord of the Rings trilogy. Judd only learns of this years later after Weinstein's harassment, when Jackson gives an interview recounting Weinstein's statements. Ninth Circuit: And under California law, that is actionable sexual harassment. Case un-dismissed.
  • Allegation: Prescription pet food­, which is substantially more expensive than regular pet food and unavailable for purchase without a veterinarian's say-so, is a big con. There's nothing medicinal in the food, and, since the 1980s, pet food companies have supplied vets with prescription pads as a marketing effort. Ninth Circuit (over a dissent): Which might violate California consumer protection law. The case should not have been dismissed.
  • Are Arizona State University's disciplinary procedures for sexual misconduct cases biased against men, in violation of Title IX? Ninth Circuit: This Ph.D. student, accused of sexual misconduct by an on-again, off-again romantic partner will get to find out.
  • Ninth Circuit: Criminal stalking is categorically a crime involving moral turpitude (CIMT), for which a green-card holder can be deported. Concurrence: This is the right outcome under our CIMT case law. Also, our case law is "dumb, dumb, dumb."
  • Life protip: Don't shine laser beams at police aircraft; they have equipment that can determine the source of the laser beam. Ninth Circuit law protip: Don't violate the Fourth Amendment when you investigate the source of the laser beam, or we will have to throw out your case.
  • Okemah, Okla. stabbing victim tells police his assailant fled in a big, black Chevy truck with a trailer. Officers pull over a dark-colored Chevy truck sans trailer. When the driver doesn't show his hands, one cop points a gun, and the driver drives away. The cop fires half a dozen times on the fleeing truck, and the truck runs into a ditch. Police do not render aid. The man, who had nothing to do with the stabbing, dies. District court: The cop was in no danger when he fired the shots; his actions were objectively unreasonable. Tenth Circuit (over a dissent): Just so. No qualified immunity.
  • As Denver, Colo. SWAT team arrives at controlled buy (or, more technically, a "reverse buy-bust"), the suspect draws a pistol. One second later, an officer shoots the suspect, killing him. Allegation: The suspect was trying to place his firearm on the ground and raise his hands in surrender. Tenth Circuit: Even if that were true, the officer couldn't reasonably have known it in the one second between seeing the firearm and firing.
  • And in en banc news, the D.C. Circuit will reconsider its decision that the prosecution of former National Security Adviser Michael Flynn, who pled guilty to making false statements, must be dismissed because the feds now wish to dismiss it. (We talked about the now-vacated panel opinion on the podcast with the Cato Institute's Clark Neily.) The Sixth Circuit, however, will not reconsider its decision permitting Tennessee to suspend indigent driver's licenses over failure to pay traffic debt. Chief Judge Cole dissents. (We also dissent.)

Agencies within the Dep't of Homeland Security seized over $2 bil in currency from travelers at airports nationwide between 2000 and 2016, $500 mil of which was taken because of missing paperwork. So finds an Institute for Justice report on DHS' use of civil forfeiture at airports. The study is the first to use data from the Treasury Dep't's forfeiture database, the Seized Assets and Case Tracking System or SEACATS, which IJ fought for over four years to obtain. The report concludes that DHS airport currency seizures put innocent people's property at risk without appearing to advance serious crime-fighting objectives. To ensure innocent Americans cease losing property unjustly, Congress must reform civil forfeiture. Read more about it in The Washington Post.

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  1. “The Sixth Circuit says no; we’ve never held that doctors can be liable for making false or reckless statements in support of a child removal”

    But, how about suing for medical malpractice?

    1. I’m thinking libel might be the appropriate.

      1. That, too, but it certainly looks like malpractice. A baby has THAT many fractures, and apparently without bruising, and the doctor doesn’t check for a bone disease? That’s the first thing that should have come to mind. It’s certainly something he should have checked for, if not before accusing the parents, at least in addition to accusing them.

        1. Assuming the doctor did the accusing.

      2. Why not both? :insert that commercial memepic:

      3. There’s almost certainly a qualified privilege that prevents such a claim.

    2. I’m not sure but I think you can only bring a malpractice claim against your doctor. This doctor apparently worked for the state, not for the patient.

      1. I’m pretty sure you can bring a malpractice claim against any doctor who practices on you.

        1. Actually, no. Voodoo scientists who commit you are exempt from both criminal and civil liability.

    3. “Mrs. Turner met with Deborah Lowen, a pediatrician at VUMC who specializes in diagnosing cases of child abuse…”

      These specialists are becoming a big problem. They get paid to distinguish child abuse from other injuries, but of course often you can’t reliably distinguish child abuse from other injuries, so they have to kind of fake it. They’re basically astrologers.

      1. Astrologers are more honest. And more accurate.

        1. Hereis a case where the same “doctor” falsely accused a different mom of child abuse. And not only is she still walking the streets as a free woman, but she’s still employed, at taxpayer expense.

  2. “leading to her losing a major role in the Lord of the Rings trilogy”

    Even an evil guy like Weinstein can still do good.

    1. She was still hot when LotR was filming, so I’ll agree it was criminal.

      1. There were terrible stories of Sean Young being difficult to work with. Now I start to wonder.

  3. The media loves to cover discrimination cases when it is of a favored class. None of these Title IX cases though where a man is obviously and clearly discriminated against ever see the light of day in the media. Wonder why….?

  4. “Can the Authority recover from the owner of the barge and tugboat?”

    I kind of doubt the owners of the barge and the tugboat have $10M, so no, they probably can’t, even if they are legally entitled to do so.

    1. Insurance company might — most of them are insured.

    2. The owner, Bouchard Transportation Co., claims to be “the nation’s largest independently-owned ocean-going petroleum barge company” with a “fleet of 25 double-hulled barges and 26 tugs”. Even if this wouldn’t be covered by an insurer, why do you think they wouldn’t be able to satisfy this judgment over time?

    3. It sounds clear to me. If the barge was unmanned during the tow (which is normal), then it is under control of the tugboat, and the tugboat company owns the liability.

      If the anchor was not properly secured, it is again the responsibility is on the tugboat to inspect the tow before embarking.

      The real problem is that the tugboat may not have the deep pockets.

      1. Could the distinction be between maritime law and the strict liability(?) of HazMat law? But then why wouldn’t that apply to the power company?

        Could it be that the barge company has spill insurance?

        1. That wouldn’t make sense. If a FedEx truck crashes, are the owners of the packages being shipped liable? And if the FedEx truck crashed into a power line, is the power company liable?

          The barge is just cargo, akin to those packages.

          The USA has some crazy laws, but in this case I presume that common sense applies.

      2. The decision does not address how in god’s name the barge company was supposed to know there was a cable there. If there are maps from 1-800 Miss Drop Anchor, perhaps.

        1. It wouldn’t have been the dropping of the anchor that was the problem (and I agree with you it’s absurd to require knowledge of the exact location of undersea cables, especially since they move), but it’s that the tug continued under power with the anchor of the barge down, effectively furrowing a path along the ocean floor – that’s what caught the cable.

          As an analogy, the anchor is the hook on an aircraft trying to land on an aircraft carrier, and the cable is the aircraft carriers arresting cable – they only make contact because the hook is down as the plane flies over it, they’d never meet if the pilot had to drop it and hit it directly.

        2. They are marked in harbor charts.
          Here’s one for example, the resolution isn’t great but near the compass rose at the bottom you can make out the “Submarine pipelines and cables” legend.

  5. I always figured that prescription pet food was a racket.

    1. Under most state laws you don’t need a prescription to get a lot of vet related dugs or supplies. Some vendors won’t sell them to you without one, but there is nothing illegal about it if they do sell it to you without a vet prescription. This is also a big racket.

      1. Our vet gave us prescription antibiotic with an eye dropper for our cat. It was, ummm, bubblegum flavor.

  6. ” Among the required containment steps was the continued pumping of dielectric fluid into Cable No. 3, to maintain pressure and prevent water from entering the cable and potentially destroying it.”

    So you continue to pump the toxic fluid into the bay — knowing that it is (a) leaking and (b) the *only* place it can be going is into the water — and then turn around and ask for clean up costs on your own INTENTIONAL pollution?

    Bill them for the cost of repairing the cable — assuming it was properly marked on the charts, but billing them for this is bullbleep.

    It’s like someone runs into me near a trout stream, and I pull 5 gallons of oil out of the back of my truck and dump it into the stream — the idiot who ran into me isn’t responsible for that oil being in the stream….

    1. It is strange. The decision https://ij.org/wp-content/uploads/2020/07/19-1140_opn.pdf says, “Among the required
      containment steps was the continued pumping of dielectric fluid into
      Cable No. 3, to maintain pressure and prevent water from entering
      the cable and potentially destroying it. ”

      Note the word required. Who required it? The decision doesn’t say. If it is true that it was required (it may not be true), then the requiring party should be the one liable.

      New York State in particular has a history of passing nonsensical laws restricting what power companies must and must not do, so a presumption of rationality may not apply.

      1. During Katrina, the army corps of engineers busted the levee to flood the cheap poor neighborhoods to preserve the ancient house (and rich) neighborhoods.

        Well, ok, for historical preservation, I guess, but the rich neighborhoods should pay for it.

        1. Alternatively (this is my actual view) we should view this as a taking requiring compensation, and be happy for it.

          Option 1) government does nothing, valuable district is destroyed for net loss of $10B (and priceless….), property owners (via insurance) lose
          Option 2) government directs flooding to less valuable land which is destroyed for net loss of $1B

          The question is for Option 2, should the property owners lose (ex: insurance), or should this be viewed as governmental savings of net assets and the losses paid out of the general fund? This is my preferred outcome – I want the Engineers to act, and will happily (read: grumpily) pay the bill.

  7. Maybe a tangent, but a LOT of people are going to be surprised to learn that (a) Unemployment is taxable income and (b) taxes aren’t being withheld. Including state & city taxes…

    Regardless of who wins this fall, this will get real ugly next March…

    1. Especially because for a lot of people that extra $2400/month is going to push them into a higher income bracket.

  8. Re the ASU case (alleged sexual misconduct by a male Ph.D student): It’s pretty extraordinary, isn’t it, for an appellate court to be so appalled by the quality of legal representation that the court (somehow? I’m not sure how) manages to get the accused’s lawyer to resign and then appoints a pro bono attorney on the accused’s behalf? In a non-criminal matter, no less!!!

    I’ll be charitable and just assume that the first lawyer was well-intentioned, but just in over his/her head. Bravo to the appellate court, for at least giving the guy adequate legal representation.

    1. I find it far more interesting than even this. First, don’t you have to go through OCR and get a “permission to sue” letter before bringing a Title IX suit against a university? I know such letters exist, and I presume for a reason, although with the Title IX claim stapled onto the larger Section 1983 claim, well????

      Second, a professor loudly discussing FERPA-protected information is a big-time issue although the problem is that FERPA really has no teeth.

      Third, there are national organizations (FIRE being one) that try to arrange for pro bono advocacy once a case gets to this level and that may have been the motivation for the first lawyer to withdraw — although I won’t be as charitable as you as there are a lot of lawyers who are in it merely for the money and may have had no intention of adequately representing him.

      1. First, don’t you have to go through OCR and get a “permission to sue” letter before bringing a Title IX suit against a university?

        No.

    2. The court didn’t get the lawyer to resign: he filed a motion to withdraw (and to have pro bono counsel appointed) because his license to practice was suspended. Which is actually impressively professional of him, although my respect is tempered by his decision to try to murder a different former client.

      https://arizonadailyindependent.com/2019/03/22/tempe-attorney-palmisano-sentenced-for-shooting-former-client/amp/

      1. Which is actually impressively professional of him, although my respect is tempered by his decision to try to murder a different former client.

        lol. Well played.

      2. Thanks for doing the extra legwork (I was too lazy to read beyond the linked appellate decision.).

        I remain surprised that the appellate court took the step of finding and appointing a new attorney. Of course, FIRE (or ACLA, or the Sierra Club, or the NRA, et al) might get involved and offer one of their own counsel, or might pay for outside counsel, in a case that is in their perceived wheelhouse. But the court itself doing it??? I’m hoping that some of the OPs here who have tons of appellate experience will chime in. I’ve done a lot of appellate work in the Los Angeles area, in state court, and–outside of criminal and child abuse Dependency matters, which are handled by and handed to the Cal. Appellate Project–it’s something I’ve never personally seen or heard about an appellate court doing.

  9. “Life protip: Don’t shine laser beams at police aircraft; they have equipment that can determine the source of the laser beam.”

    If you know exactly where the helo was (and GPS will tell you that) and exactly what angle the beam hit the helo at (call me skeptical on that), then it’s simple trajectory, easier than with a bullet as a laser beam will truly go straight.

    Here’s a case where the cops did it right — although I somehow suspect they already kinda knew whom they were looking for:
    https://globalnews.ca/news/7205748/calgary-police-helicopter-laser-meth/

    A common trick along the coast is to get ahold of someone’s junk mail (with name & address on it), mix it in with your own trash, and then pitch it overboard in a sturdy plastic garbage bag. USCG finds it floating by, finds their name & address in it, and goes after them.

    So sometime around midnight, I take my trusty green laser into the backyard of my obnoxious neighbors, point it at the passing police helo, and then quietly sneak home to watch the fun begin…

    1. You assume there isn’t a little module attached to police cams to record with IR or night vision and zoom in if certain wavengths are detected. If such exists, it’s probably on helicopters that are known targets.

      All the pieces exist.

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