Short Circuit: A Roundup of Recent Federal Court Decisions

Cuban ballplayers, regulating Puerto Rico, and the male-only military draft.

|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: PACER charges and publicly charged universal injunctions.

  • "Once again, we are called upon to explain how a federal government in which Puerto Ricans have no vote may regulate them more extensively than it can most every other American citizen." So begins this First Circuit opinion.
  • If true crime is your thing, check out this story of a Philadelphia drug kingpin who arranged from jail for his underlings to firebomb the home of a confidant-turned-informant in 2004, killing all six in the house, four of whom were children and none of whom were the former confidant. The kingpin, appropriately named Savage, is convicted of a dozen murders—one shy of the state record—and receives the death penalty. The Third Circuit affirms in its first direct appeal in a capital case in nearly a century.
  • As honorably discharged Marine waits to catch a bus to visit his recently hospitalized sister, Columbia, S.C. police arrest him, charge him with congregating on the sidewalk, a city code violation that is prosecuted by the cop who issued the citation. He awaits trial for more than 3.5 years until, on the eve of trial, the arresting cop drops the charges. Fourth Circuit (over a dissent): Might be malicious prosecution—an unreasonable seizure claim with some tort elements.
  • The Texas Medical Board is apparently a big fan of searching medical clinics—including private patient records—with administrative subpoenas that do not allow for judicial review and demand immediate compliance. The Fifth Circuit denounced this approach in 2018 and 2019. Here, a doctor alleges that board investigators used this process to illegally obtain files from his clinic that they then used to fabricate evidence and get him indicted on trumped-up charges of running a pill mill (which were dismissed). Fifth Circuit (2020): Though there's no constitutional right to be free from abuse of process or malicious prosecution (at least in the Fifth Circuit), the doctor might have valid due process and Fourth Amendment claims.
  • In the Fifth Circuit, a Louisiana man convicted of murder by an 11–1 jury verdict will not get a new trial—even though the Supreme Court held last term that this sort of nonunanimous conviction is unconstitutional. You see, the prisoner already argued that his nonunanimous conviction was unconstitutional back in 2008, so he can't make the same argument again. No exceptions.
  • In 1981, the Supreme Court ruled the military's male-only draft is not unlawful sex discrimination, in part because at the time women were prohibited from serving in combat. Plaintiffs: Well, that key fact has changed. Is the male-only draft unconstitutional now? District court: Yes. Fifth Circuit: No.
  • Holdout juror in a murder case just can't be persuaded and is fed up with being badgered by other jury members, so she contacts a lawyer, who appears in court to inform the judge about the conflict. After the judge and the lawyers debate the proper course, the judge removes the juror. An alternate juror is seated, and the jury returns a guilty verdict within 90 minutes. A Sixth Amendment violation? Sixth Circuit: No. She was removed for violating the judge's order not to discuss the case with anyone, not because she was a holdout.
  • Ohio chiropractors challenge 2019 law that prohibits them from directly soliciting victims of accidents or crimes until 30 days after the injury, alleging that the law violates their First Amendment rights. Sixth Circuit: We upheld an identical prohibition from Tennessee back in 2004, and we don't see any reason to change our minds now.
  • Oakland County, Mich. investigator mistakes username "anonymousfl" for "anonymous" on social media app Kik, leading to arrest, extradition, and five weeks in jail for NYC man who did not blackmail a minor for naked photos. Sixth Circuit: The man's claims against the investigator should not have been dismissed. Judge Thapar, concurring, urges in-circuit litigators and judges to read the fine print before calling claims against unreasonable pretrial detention "malicious prosecution."
  • School bus arrives at stop seven minutes early, and 13-year-old misses it. He returns home, tells his father, rides his bike to school in the dark and in heavy traffic. He's struck by a truck and severely injured. Can his parents recover from the school bus company? The jury found the parents 56% at fault (so they can't win due to Tennessee's comparative negligence law), and there's no grounds for a new trial, so no, says the Sixth Circuit (over a dissent).
  • Illinois prison guards line up 200 female inmates, force them to stand naked in groups, remove sanitary products, and undergo body and cavity searches—all in full view of nearby inmates and male prison guards not involved in the searches. Seventh Circuit (2019): Longstanding circuit precedent says the Fourth Amendment doesn't apply to visual inspections. Seventh Circuit (en banc, 2020): Not anymore. Inmates have a constitutionally protected privacy interest in their bodies (eliminating a circuit split on the question).
  • "Shocking" allegations of football injuries and the medications given to manage them can justify a suit against the NFL, holds the Ninth Circuit. Although a putative class of former players did fumble some of their theories, the basic claim goes forward: that the NFL negligently allowed the improper distribution of drugs to keep injured players on the field.
  • After a witness in a civil case testifies that two of the other witnesses are not legal citizens, Billings, Mont. Justice of the Peace says, "call me a deputy. I have two illegals sitting outside. I want them picked up." One of the men is picked up and transferred to ICE custody, where he remains for three months until the deportation proceedings against him are dropped. He sues the JP and the deputy who arrested him for violating his Fourth Amendment rights. Ninth Circuit: No qualified immunity. Mere illegal presence in the U.S. isn't a crime, so there was no reasonable suspicion to justify detaining the witness.
  • In 2018, the FCC adopted a new set of rules intended to speed up the nationwide implementation of 5G wireless broadband. The rules restrict how local gov'ts can regulate 5G facilities, including how the facilities look, the fees localities can charge for installation, and how long the localities can take to consider an application for installation. They also require localities to allow the new facilities to share existing utility poles. Local gov'ts: Which is an unconstitutional taking. Ninth Circuit (over a dissent): Not so, but some of the rules governing "aesthetics" are prohibited by statute and are arbitrary and capricious.
  • After socially transitioning from female to male, Florida high school student seeks permission to use the boy's bathroom. The school says he can use the girls' bathroom or a single-stall gender-neutral bathroom. The student sues, alleging violations of the Equal Protection Clause and Title IX. Eleventh Circuit: And he's right. The bathroom policy discriminates on the basis of sex. Dissent: Even RBG (while a professor) has said that separating bathrooms on the basis of biological sex is an example of permissible sex-based regulation.
  • The Georgia Board of Dentistry, 9 of whose 11 members are dentists, adopts a rule that digital scans of teeth may only be taken if a licensed dentist is on the premises. Manufacturer of custom orthodontic trays sues, alleging that the policy is anticompetitive self-dealing, in violation of federal antitrust law. Eleventh Circuit: And the manufacturer's claims can proceed; the mere potential for the governor to veto the new rule is not enough to create state-action immunity. Dissent: We shouldn't even be hearing this appeal because the district court's denial of the dental board's motion to dismiss wasn't a final appealable order.
  • Some of baseball's great players have been Cuban-born. But, for years, players born in Cuba had to first move to a third country and establish residency before moving to the U.S. to play ball. A sports agent and a trainer decide to facilitate this process in exchange for one-third of the players' contracts (standard agents take 5%). This approach involved fraudulent documents and payments to Mexican smugglers to stave off violence. One player brought in this way, Chicago White Sox all-star José Abreu, ate the cover of his fake passport and washed it down with a beer on the plane on his way to the U.S. and a $68 mil contract. Eleventh Circuit: And this is human smuggling. Convictions affirmed.
  • A Georgia sheriff violated the rights of a pretrial detainee by allegedly leaving him in a hot van, where he passed out from the heat. But without in-circuit caselaw about a precisely unconstitutional duration at a precisely unconstitutional temperature, the sheriff gets qualified immunity. The Eleventh Circuit will, however, allow a trial on a claim that the sheriff was deliberately indifferent to the detainee's medical needs. No reasonable officer would just ignore an unconscious prisoner.
  • And in en banc news, the Ninth Circuit will not reconsider its decision that the district court must consider alternative grounds for federal jurisdiction, and, if there are none, remand a lawsuit filed by Oakland and San Francisco against fossil fuel producers (alleging that the production of greenhouse-gas-emitting fuels is a public nuisance under California law) back to state court.

Though there is a pressing need for home health services among Louisville, Kentucky's Nepali-speaking community, last year state health officials prevented a new home health agency with nurses and aides who understand the Nepali language and culture from opening up shop—solely to protect existing agencies from competition. Today, a federal district court said IJ's suit can proceed because Kentucky's law may not survive rational basis review. "But at least this much about that standard should be clear: When a plaintiff's evidence proves that a statute makes worse the very interest it purports to serve, as well as any other legitimate state interest, the statute is arbitrary, unreasonable, irrational, and unconstitutional." Click here to learn more.

NEXT: Fifth Circuit Upholds Constitutionality of Male-Only Draft Registration - But only Based on Precedent

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  1. “Ninth Circuit:……Mere illegal presence in the U.S. isn’t a crime, so there was no reasonable suspicion to justify detaining the witness.”

    Wow!

    1. Wow what? The crime is “entry“ not “remaining.” SCOTUS says the same thing, “As a general rule, it is not a crime for a removable alien to remain present in the United States.” Arizona v. United States, 132 S.Ct. 2492, 2505 2012).

      1. No, that still makes no sense. If the crime is ‘entry’, not ‘remaining’ (and that is the correct legal standard), then the “presence” wasn’t “illegal”. The wording used by the court (and quoted in the article above) was irresponsibly sloppy.

        Note that the decision correctly uses “unauthorized presence” in the very next sentence. So there’s no excuse for the sloppiness.

        1. But “illegal” is not synonymous with “crime.”

          1. What kind of nonsensical double-speak is this?

            “illegal: 1) Contrary to or forbidden by law, especially criminal law.”

            The phrase “illegal alien” refers exclusively to the *crime* of the entering the US in contravention of US law.

            1. The kind where I went to law school and know that things that are illegal are not always crimes? It’s obvious. Crimes are defined by statute. If i fire you because of your race I did an illegal act under Title VII but I didn’t commit a crime.

              The phrase “illegal alien” refers exclusively to the *crime* of the entering the US in contravention of US law. Why would that be the case? Isn’t someone who overstayed their visa also an illegal alien even though they entered legally? Or someone brought here at age 3? They’re too young to commit a crime since they can’t form the requisite mental state and the act can’t be considered voluntary. But they’re still an “illegal alien.”

              1. This sort of disconnect is why most people switched from referring to “illegal aliens” to “undocumented immigrants”. There isn’t room to argue about what “undocumented” means.

      2. No, this is completely insane. The physical act of arrest requires their presence, but they are not arrested or prosecuted for the crime of “being present”. The only question is whether the tipoff constituted reasonable suspicion to detain and question the suspect and that the resulting investigation provided probable cause for an arrest. That SCOTUS case is *completely* different as it concerns Arizona laws that further punish illegal aliens, not arrests for entering the US illegally.

        1. The case is about preemption, but the general proposition of law is still the same: as a general matter, illegal presence is not a crime. Congress has not made it a crime. Because illegal presence is not a crime and there are many ways to be illegally present without having committed a crime: overstay a visa, be brought here as a young child, etc. it doesn’t actually give anyone reasonable suspicion that a crime was committed. Whether they committed a crime is just speculation, so it doesn’t justify detaining anyone.

  2. “After socially transitioning from female to male,”

    “Socially transitioning”, I take it, means you start calling yourself the opposite sex, without any medical interventions of any sort?

    ” You see, the prisoner already argued that his nonunanimous conviction was unconstitutional back in 2008, so he can’t make the same argument again.”

    Why should the fact that the Supreme court agreed with him mean anything?

    1. If the SC changed the law of the land, that’s that. I don’t get it, either.

      If someone were being held due to some ancient overturned racist law, that they had appealed and lost on a few years earlier, would they proudly continue to hold him?

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  4. “Mere illegal presence in the U.S. isn’t a crime . . . ”
    Can a lawyer type explain to a mere college graduate how this can possible be? Either crime doesn’t mean what I think it means, or “illegal” doesn’t mean what I think it means.

    1. See the discussion above. It’s irresponsibly sloppy wording by the Ninth. The correct precedent is that “mere unauthorized presence” is not a crime.

      The idea is that US law makes the entry the crime that’s illegal. But having committed that crime, you are not committing a new crime every day you overstay.

      1. I think the more important distinction is that the entry might have been completely legal. Therefore merely being here isn’t even evidence that crime ever was committed.

      2. The idea is that US law makes the entry the crime that’s illegal. But having committed that crime, you are not committing a new crime every day you overstay.

        Not quite. That’s a meaningless distinction. The meaningful distinction is that even though unauthorized entry is a crime, many people enter with authorization but then fail to leave when required. Their presence here is illegal (or unlawful, if that word makes you feel better), but not a crime.

        1. The fundamental problem is the blending of meaning between “illegal” and “criminal”. “Crimes” are violations of criminal law, specifically, whereas “illegal” are violations of law, generally. So you can get things that are “illegal” but not “crimes”.

          A complicating factor is that “criminal” and “subject to arrest” are not perfectly contiguous. People who are not guilty of crimes can still be arrested.

    2. Crime is not synonymous with “illegal.” Lots of things are illegal that aren’t crimes. For instance, it’s illegal to fire someone because of their race, but it’s not a crime to do that, the employer is simply subject to a damages suit by the employee. No one can be arrested for that act. Another example might be having an overbroad non-compete clause in a contract. That’s illegal, but not a crime.

      To be a crime, the legislature has to draft a statute identifying the act, required mental state, and causation that constitute the crime. It must attach criminal penalties, that is to say a punishment, for meeting the elements of the crime.

      Congress has chosen not to do that for simply remaining in the United States unlawfully in most cases. It has made illegal entry a crime. 8 USC § 1325 (in fact it is only a misdemeanor). It has made failure to depart after a removal order a crime. 8 USC § 1253. But it has generally not made it a crime simply to be in the United States without legal authorization. See Arizona v. United States, 132 S.Ct. 2492, 2505 (2012). It is a civil offense that subjects the person to removal proceedings. And note that not every case of unlawful presence is related to unlawful entry, someone might overstay a visa for instance.

  5. “Illegal” and “criminal” are not the same thing. For example, parking at a street meter without paying the posted fee is illegal, but not criminal (at least that’s the case everywhere I’ve lived).

    Another example would be overstaying a student or tourist visa. The entry is legal, but the presence is not.

    Illegal entry is a crime. Illegal presence is not.

  6. “After a witness in a civil case testifies that two of the other witnesses are not legal citizens…”
    “Ninth Circuit: No qualified immunity. Mere illegal presence in the U.S. isn’t a crime…”

    Not to mention that saying people are “not legal citizens” doesn’t mean anything.

    1. That too. Green card holders are not legal citizens.

      1. What does an illegal citizen look like?

        1. Melania Trump.

          1. Really? All of them?

  7. “Even RBG (while a professor) has said that separating bathrooms on the basis of biological sex is an example of permissible sex-based regulation.”

    IIRC she said it was required, and not segregating bathrooms based on sex is discrimination.

    1. It is news to some, but law professors don’t make law.

  8. From the IJ website

    Dipendra Tiwari wants to provide home health care to refugees in Louisville in a language they understand. But Kentucky won’t let him because it says that service isn’t needed. How can that be? The answer is a government permission slip called a certificate of need.

    Nearly 100,000 Nepali speakers have been welcomed to the United States after ethnic tensions forced them out of their homes in the Himalayan country of Bhutan. Thousands of these refugees resettled in Louisville. And, just like anyone else, they need health care as they age. This situation gave Dipendra, a native Nepali speaker, an idea for a valuable service: a home health care agency catering to the refugee population, offering service in their own language.

    I agree Certificates of Need are a racket. But the even bigger racket is importing hundreds of thousands of refugees who need home health care (paid for by Medicaid and Medicare) and apparently can’t be bothered to learn English.

    1. For elders, especially, it’s often difficult to learn a new language. It’s common that the younger generations handle most of the day to day interactions with the outside, and so the grandparents only end up knowing a smattering of English. Enough for day to day, but not terribly much overall. Having a fluent caretaker will greatly help their care, as medical language isn’t commonly spoken and needs to be extremely specific and subtle, so rough understandings just aren’t sufficient.

    2. ” the even bigger racket is importing hundreds of thousands of refugees who need home health care (paid for by Medicaid and Medicare) and apparently can’t be bothered to learn English.”

      Or is the problem that you can’t be bothered to learn Nepali?

      1. Right. All US Citizens must be required to become literate and fluent in the language of any and all foreign persons who happen to gain entrance to the US (legally or illegally).

        Think of the jobs otherwise unemployable immigrants and refugees will have. And think of the growth in GDP as we pay them to teach us.

        1. You’re making excuses for your laziness.

  9. “Mere illegal presence in the U.S. isn’t a crime,”

    Ah, so educate me. Crossing the border is OK if not caught? Once you’re in – no harm, no foul? Like, I robbed that bank but yesterday.

    Who wrote these laws…

    1. No. Illegal entry is a crime. So are lots of things that make life living here easier. Being illegally present subjects you to removal proceedings, which are civil in nature.

      The people who wrote those laws understand that there are some obvious problems with making someone’s mere presence in an entire country a crime.

      For one thing, it’s a waste of resources. For a crime you need to prove all the elements behind a reasonable doubt, and the defendant has to be provided counsel. And if you get a conviction and there’s a prison sentence you’d have to keep there here instead of just deporting them. Seems like a waste of time and money when you can just do civil/administrative removal proceedings.

      There are also some troubling hypotheticals with making mere presence a crime:

      Let’s say it’s a crime to knowingly be illegally present in the United States. Well what does that mean for someone who is brought here as a kid? Do they commit a crime as soon as they “know” they’re illegally present? When and how do you prove what point that is? Let’s say they know they’re undocumented from an early age: are they voluntarily staying if they’re 8 and couldn’t realistically expect them to go somewhere else? Would you as a prosecutor charge an 8 year old with this crime? Would the legislature really intend to imprison an 8 year old because he remains with his or her parents?

      1. What if two parents rob a bank with their 8 year old kid?

        What a horrible world would it be if we dared prosecute those parents!!!

        IOW, who gives a crap about your emotional pleading.

        1. But you don’t prosecute the 8 year old right? That’s who I’m talking about.

          And I love it when people use the knee jerk “you’re being emotional“ defense. Sorry to tell you that humans are emotional…at least most humans are. We have feelings and can experience sympathy and empathy. If we have an emotional reaction to an act, because it harms someone, it should give us pause on the morality of that act.

          I truly am sorry that you can’t experience emotions like most other humans. Or if you can you reject them out of hand. You’re missing out on a fundamental human experience. That makes me sad for you. You may be fundamentally broken inside.

    2. It is possibly to enter the United States legally (on a tourist visa, for instance) only to have your presence later become illegal (for instance, by not leaving the country when the visa expires). That is generally not, in and of itself, a crime.

    3. I’ve read elsewhere that the majority of illegal aliens actually entered the US legally with a valid visa and just stayed here after their visa’s expired.

      Illegal boarder crossings are criminal. And illegal boarder crossings on our southern boarder are a problem. They aren’t however the big problem they often get made out to be.

      1. “I’ve read elsewhere that the majority of illegal aliens actually entered the US legally with a valid visa and just stayed here after their visa’s expired.”

        I don’t think it’s a majority but rather a substantial minority. Which is why a border wall won’t magically cut off the supply of illegals inside the country, even if you got one built by competent designers and builders, rather than by Trump fans.

    4. Unauthorized entry is a criminal act. Catch someone doing it, and they can be prosecuted for it.
      However, being inside the border is not proof that this crime has been committed, so you can’t prosecute someone for unauthorized entry based solely on finding them in a courthouse.

      Work it in reverse.
      Breaking out of prison is a crime.
      Can you arrest anyone you find outside the prison and charge them with prison break? No, because being outside of prison is not a crime.

  10. “Ohio chiropractors challenge 2019 law that prohibits them from directly soliciting victims of accidents or crimes until 30 days after the injury”

    Can we do this for lawyers too?

    1. Most states do.

  11. “Seventh Circuit (en banc, 2020): Not anymore. Inmates have a constitutionally protected privacy interest in their bodies”

    “The student sues, alleging violations of the Equal Protection Clause and Title IX. Eleventh Circuit: And he’s right. The bathroom policy discriminates on the basis of sex. ”

    How can these two simultaneously exist?

    Do people lose their bodily autonomy and privacy interests in the presence of transes?

    1. You probably don’t want to get into the abortion vs. prostitution argument.

    2. “How can these two simultaneously exist?”

      Did you miss the part about being forcibly required to disrobe?

      If you’re in a bathroom with a “transes” as you put it, and you don’t want to be, you can choose to walk out and wait for them to leave.
      And how do you know they’re a transes unless you’re peeking, you perv?

  12. Not a lawyer here. In reading the Texas Medical Board case, which has a pattern of repeated abuse, apparently it has been decided that malicious prosecution alone does not imply any constitutional violations and thus is not covered by 42 USC 1983. I find that surprising, I would think that it would covered by the due process protections of the 5th amendment. But regardless, would it not be wise to amend 42 USC 1983 to explicitly include *malicious* prosecution, suitably narrowly defined, as covered?

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  14. In the 3rd Circuit capital case, the opinion went on for over 200 pages addressing the full gamut of modern capital challenges without a single challenge to the sufficiency of the evidence. The defense challenged the preemptory challenges for a jury whose black participants almost exactly mirrored the general population (2 of 12 jurors and 1 of 6 alternates in a district that was about 17% black), challenged the prosecutor arguments, the jury instructions, the verdict forms, almost every conceivable detail except for anything related to guilt or innocence. They argued that the photographs of the mangled bodies were unfairly prejudicial.

    Of curious note: Before the trial, there was a mysterious musical attornies in which the defendant complained about his lead attorney, who was replaced shortly before trial. And in the trial, the defense initially raised but mysteriously failed to properly preserve most of the issues raised on appeal, so most were reviewed for plain error. I suspect that this behavior was a well-thought strategy to create a record supporting an ineffective assistance of counsel claim to be brought up after all other avenues were exhausted.

    For a defendant who committed 12 murders, 7 ordered from prison, 6 by burning alive, 4 of children, ineffective assistance of counsel might be the most effective legal strategy the defense has to give the defendant as many years of life as possible. It might be so against the client’s interest as to be unethical for counsel to give such a defendant effective assistance, as this would inhibit his best defense and destroy his opportunity to avail himself of his most potent available strategy.

    With ineffective assistance, a capital defendant with no other realistic defense has a chance of getting his trial or penalty thrown out years or even decades after his conviction, and it’s always possible that evidence critical to the prosecution might dissappear by then which might prevent a new trial or at least give him a better shot at a defense.

    Savage’s attorneys appear to understand this very well and to have carefully laid out the groundwork for a skillful, intelligent, indeed masterful ineffective assistance of counsel strategy. I suspect their highly effective assistance in this regard will give their client years, more likely decades, of additional life tied up in appeals and habeas corpus petitions, far more than any other strategy could have done.

    I want to give a particular shout-out to the skill counsel showed in conducting their musical lawyers game just before trial, and especially the way the new lawyer assured the trial judge that yes he could handle the case without a continuance. The 3rd Circuit, which is new at this, took the bait like complete suckers. They treated the lawyer’s word as decisive on the issue given his credentials and experience, not even aware that a decade or more from now when the ineffective assistance of counsel case reaches them and new lawyers undermine everything he said and did, it won’t be.

    1. I wonder if the “ineffective assistance of counsel” would see less use (or at least less acceptance by the courts) if it resulted in automatic sanctions against the lawyers who were deemed “ineffective”.

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