Short Circuit: A Roundup of Recent Federal Court Decisions

Anti-Riots, bright youth, and a sick puppy.

|The Volokh Conspiracy |

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

Way back in 1983, in Bearden v. Georgia, the U.S. Supreme Court ruled that judges must inquire into defendants' ability to pay before jailing them for not paying court-ordered fines and fees. The practice is widespread today, however, spreading misery and hardship among the least fortunate. (One guy we know calls Bearden the "25-hour speed limit" of constitutional law because no one follows it.) Please do click here for a look at model legislation that would codify Bearden and curtail the abuse of fines and fees.

New on the Short Circuit podcast: Can a city hold on to your car for three years for no reason? Plus, the costs of campaign finance disclosure.

  • Gitmo detainee, a tribal sheikh and Yemeni citizen, has been held without trial going on 16 years. A violation of the Due Process Clause? D.C. Circuit: Whether it's "procedural" or "substantive" due process, the Clause does not apply to aliens detained outside the sovereign territory of the United States.
  • Connellsville, Penn. police accuse a woman of murder on the basis of bite-mark evidence and accusations from an ex-boyfriend and two inmates. But bite-mark evidence is not supported by science, the men's statements conflict, and the ex-boyfriend recants on the stand. A judge dismisses the charges. Undeterred, the DA recharges her a few months later. She's convicted and then exonerated after 11 years in prison. Third Circuit: The then-DA (now judge) is entitled to absolute immunity for approving the criminal complaint and to qualified immunity for directing police to investigate bite-mark evidence and sitting by while police engaged in a reckless investigation. Neither of the latter two had been clearly established as unconstitutional at the time of the investigation.
  • Following a sniper attack on a Pennsylvania State Troopers barracks, troopers learn of a man with a rifle walking down a highway 15 miles away. They identify him, arrest him on a Florida arrest warrant, and then charge him with another crime before dismissing the Florida charges. Man: A trooper fabricated evidence to support the Florida charge and my arrest, which violates the Fourth and Fourteenth Amendments. District court: It didn't violate the Fourth Amendment. Third Circuit: And the Fourteenth Amendment doesn't apply to an unlawful arrest claim before a court appearance. (Another man was later convicted of the sniper attack.)
  • Transgender high-school student challenges school policy that requires him to use the bathroom of his birth-assigned sex (female) or a private unisex bathroom. The student sues, alleging violations of Title IX and the Fourteenth Amendment. Fourth Circuit: "The proudest moments of the federal judiciary have been when we affirm the burgeoning values of our bright youth, rather than preserve the prejudices of the past." Dissent: "The majority opinion devotes over 20 pages to its discussion of [the student's] transgender status, both at a physical and psychological level. Yet, the mere fact that it felt necessary to do so reveals its effort to effect policy rather than simply apply law."
  • Congress enacted the Anti-Riot Act in 1968, an era, observes the Fourth Circuit, "not unlike our own." And while the law sweeps up substantial amounts of constitutionally protected speech, including advocacy intended to "promote" or "encourage" a riot, the unconstitutional provisions can be severed from the remainder—which, in turn, can permissibly be applied to two California residents who traveled through interstate commerce to attend the "Unite the Right" rally in Charlottesville.
  • Ronnie Wallace Long has spent the last 44 years in prison serving a life sentence for rape, a crime he insists he did not commit. But now it is undisputed that the state withheld evidence including: (1) evidence of lies by two police witnesses; (2) the disappearance of a rape kit; and (3) a "legion" of test results that did not implicate Long. Is Long entitled to habeas relief? Fourth Circuit (en banc): The trial court needs to hold a hearing on actual innocence ASAP. Concurrence: No need for that; no reasonable jury could have convicted if it'd known this evidence. Dissent: "[I]njustice may have occurred," but it's debatable, so habeas relief should be denied.
  • Allegation: After a chain of Texas liquor stores refuses to pay $8 mil to resolve violations allegedly uncovered during an investigation by the Texas Alcoholic Beverage Commission, the TABC sues, seeking cancelation of all 164 of the chain's permits and $713 mil in civil penalties. An administrative law judge rules for the chain on all charges but one, for which he recommends a warning. The chain sues the TABC, and the district court, relying on a variety of immunity doctrines, dismisses the case. Fifth Circuit: Most of which were correct. But the court was wrong to dismiss claims based on the TABC's alleged concealment of evidence, so back you go.
  • Because of the high cost of treatment for hepatitis C, Tennessee prison officials provide medication only for inmates with the most severe and advanced cases. Sixth Circuit: No doubt the best practice would be to treat every sick prisoner, but that is not always possible in the real world of limited resources. No violation here. Dissent: If prisons cannot afford to house inmates in conformity with the Constitution, those inmates should be released.
  • Protesters block Columbus, Ohio intersection for 45 minutes, begin to disperse after police pepper spray them. One protester lingers but then retreats, hunching over from the effects of the pepper spray. An officer allegedly puts a hand on her shoulder, stopping her briefly, and sprays her directly in the face. Excessive force? Sixth Circuit: There's no prior case that says so (nor is there one now), so qualified immunity. But her state law claims can proceed.
  • The City of Oakland sues Wells Fargo, alleging that the bank has a practice of issuing predatory loans to black and Latino residents, which violates the Fair Housing Act and has harmed the city by reducing property tax revenue and increasing city expenses (to deal with foreclosed properties). Ninth Circuit: The claim for damages based on reduced property tax revenue can go forward, but the city hasn't plausibly alleged that the bank caused municipal expenses to go up.
  • Allegation: Kennesaw, Ga. pet store sells woman a puppy infected with parvovirus, a sometimes-lethal disease that the store certified the dog was free of. When she takes the dog to a store-affiliated vet, he provides no care, doesn't inform her of its demise, and falsely claims not to have the body. Eleventh Circuit: Sorry, but the Racketeer Influenced and Corrupt Organizations Act doesn't provide a cause of action here.
  • Mentally ill soldier deserts his post in Afghanistan in a misguided bid to trigger a search that he believed would end with him getting face-to-face time with a commanding general he wanted to address. Instead, he's captured by the Taliban and spends several years in a small iron cage. Court of Appeals for the Armed Forces (over partial dissents): Public comments by President Trump and the late Senator McCain did not place an intolerable strain on the public's perception of the fairness of his court martial (which resulted in a dishonorable discharge and $10k forfeiture).

Friends, did you know that Pennsylvania law requires applicants for cosmetology licenses to prove that they're good people, yet barbers in the same salon don't have to? That meant dozens of applicants with unrelated criminal records couldn't get licensed, even though Pennsylvania teaches cosmetology in prisons. IJ thinks this distinction is absurd, and earlier this week, the Commonwealth Court of Pennsylvania agreed. This "good moral character" requirement violates Pennsylvania's promise of equal protection, and the state can no longer enforce it. And as a part of wider legislative reform, good moral character requirements will soon be removed for other professions as well. It's a two-part win for freedom in the Keystone State. Click here to read more.

NEXT: Antonin Scalia Law School's Commitment to Open Dialogue and Debate

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  1. “Transgender high-school student challenges school policy that requires him to use the bathroom of his birth-assigned sex”

    I think the thing that annoys me the most about transgender hysteria is the way people are being bullied into using language that validates it. She wasn’t “assigned” a sex, assignment implies a discretionary choice. Her sex, which existed apart from the doctors’ determination, was merely noted.

    Saying “assigned” makes it sound like the doctors get a baby of indeterminate sexuality, and say, “This one will be a boy, this one a girl, oh, we’re short of our quota of boys, they’re both boys.”

    1. Exactly. Sex isn’t “assigned” at birth. Instead it’s observed and recorded at birth.

      1. Some people are Intersex/have ambiguous genitalia. And they are, in fact, assigned a sex at birth.

    2. I think you are reading too much (too little?) into it. I read it as assigned, as in noted, as in recorded, at the point of birth, not by the birth.

      1. But it’s still a bogus description. People are traditionally expected to use the restroom corresponding to their biological sex. It’s not like a biological male would be expected to use the girl’s room because the doctor held him up and said, “It’s a girl!” or any similar event or recording that happened at birth. The notion of “birth-assigned sex” is a sham.

        1. ” People are traditionally expected to use the restroom corresponding to their biological sex.”

          But socially, they’re offered only two choices. Not all of the observed genetic possibilities are represented. So you either get the bathroom designed for people who pee standing up, or you go into the bathroom designed for people who pee sitting down. Objectively, bathroom facilities designed so that people use them solitarily are superior. Most private homes are designed that way.

      2. “I think you are reading too much (too little?) into it.”

        And looking at the opinion, it put scare quotes around “biological sex”:

        “Grimm’s birth-assigned sex, or so-called “biological sex,” is female…”

        We certainly should discuss how to treat people who are biologically one sex who prefer to live as another sex, but we should pretend that biological sex is simply an arbitrary assignment made at birth. That is ignoring reality.

        1. I hadn’t known about the scared quotes passage. That puts it in a different light.

          1. Things have gotten nuts. In a title ix suit over whether biologicly male students should allowed to play girls’ sports based on gender identity, a judge refused to allow the plaintiff’s lawyer to refer to the students as “biologically male.”

            1. “Things have gotten nuts. In a title ix suit over whether biologicly male students should allowed to play girls’ sports based on gender identity, a judge refused to allow the plaintiff’s lawyer to refer to the students as “biologically male.””

              Any chance this is because the students in question weren’t technically “biologically male” in the first place? (say, because at least one of them was XXY rather than XY, maybe?)

            2. Take note that if the lawyer thinks the argument is so weak that the only way to win it is to mislabel girls as boys, then the argument is hopeless.

              Honestly, judges should probably make lawyers use terminology their clients don’t like to use more often. You get better arguments when you aren’t trying to win a case with definitions.

              1. “Take note that if the lawyer thinks the argument is so weak that the only way to win it is to mislabel girls as boys, then the argument is hopeless.”

                1. I assume you mean that in one direction, and wouldn’t support a judge ordering lawyers to refer to mtf trans kids as “boys.”

                2. The term being banned is “biologically male,” which the children unquestionably are.

        2. “We certainly should discuss how to treat people who are biologically one sex who prefer to live as another sex, but we should pretend that biological sex is simply an arbitrary assignment made at birth. That is ignoring reality.”

          Speaking of ignoring reality, you can keep pretending that there are only two choices and every person is one or the other when they are born. I suspect that you will insist on this approach, and continue to blissfully ignore facts that don’t fit your distorted perception.

      3. Its a bad use of words. Another example of this is in quantum physics when they use the word “observed”. This confuses laypeople because it implies the researcher has merely sat back and looked at the thing. But in quantum physics this is not possible, every measurement requires interaction with the system. So using the word “observe” basically intentionally misleads laypeople, and instead you should use “interacted” or a similar word.

      4. I just checked several thesauruses, online and not. In none of them did “assigned” return any synonyms of “noted” or “recorded”. All the synonyms I did find were words that implied a degree of discretion – “designated”, “granted”, “tagged”, “decided upon”.

        While I also think that people often read too much into articles and comments here, I think in this case Brett has the better argument based on the words used.
        Note that “birth-assigned” is a quote from the court decision, not merely a paraphrase by the IJ folks. A slightly larger quote of what they actually said is
        birth-assigned sex, or so-called “biological sex,”
        (scare-quotes in the original).

        1. Biologically, there are at least three choices determined genetically. These are male, female, and intersex.

    3. Can I be black and get all the academic opportunities that go along with it whenever I want? How about be a juvenile in order to benefit from relaxed legal sanctions? Or indian? I really really really feel like one of the above categories sometimes….

      1. I think there’s still that pesky one drop rule. So you may need a blood infusion from an African American. Then you can.

      2. If I self identify as Marian, would the Trump administration deport me to Mars?

        1. Naw, you’d need to identify as Martian to be deported to Mars. Maybe Elon will give you a ride.

          Marian will get you deported to Quebec. (Maria, Quebec to be precise.)

        2. “If I self identify as Marian, would the Trump administration deport me to Mars?”

          No, they’ll talk a lot about how they want to deport you, then they’ll take your kids away from you and put them in cages, hoping you’ll self-deport, and then eventually they’ll declare that you’ll “just go away” when the weather gets warmer.

      3. “Can I be black and get all the academic opportunities that go along with it whenever I want?”

        Why would you want your schools to be consistently underfunded?

    4. “Saying “assigned” makes it sound like the doctors get a baby of indeterminate sexuality, and say, “This one will be a boy, this one a girl, oh, we’re short of our quota of boys, they’re both boys.””

      Which is, more or less, how doctors do handle intersex infants.

      1. They started out innocently claiming that gender was a social construct and biological sex was innate and immutable.

        Now biological sex is allegedly a mere mental construction and any person can identify as whatever sex and magically become an authentic version of that sex.

        It erases sex.

        1. Of course gender based bathrooms are a social construct. Uni-sex bathrooms for all!

          Problem solved! 🙂

          1. They aren’t gender based. They are sex based.

            1. They aren’t either. They’re divided between “people who like to pee standing up”and “people who like to pee sitting down”.

        2. ” biological sex was innate and immutable.”

          Anyone who claims or claimed this to be true deserves to be laughed at directly in their face.

      2. What does that have to do with this case?

        1. Dunno. Not the person who brought it up.

    5. Unfortunately, the legal issue is a side show which detracts from the vastly more important issue – How to address the mental issues that make people think they have gender dysphoria.

      This pseudo mental health diagnosis, a fad of the mental health profession, is doing lasting damage to those diagnosed this mental illness.

      1. “the mental issues that make people think they have gender dysphoria.”

        Isn’t gender dysphoria the mental health issue itself?

        What horrifies me isn’t the people who actually have it, of course. It’s all the children getting mutilated by their parents own cases of Munchhausen by proxy.

        1. Uhm, is that really what keeps you up at night? That has got to be a vanishingly small number _AND_ requires medical support. I don’t see that as a No. 1 concern in 1st world countries.

          1. I didn’t say that it keeps me up at night. Just that it horrifies me.

        2. ““the mental issues that make people think they have gender dysphoria.”

          Isn’t gender dysphoria the mental health issue itself?”

          Yes it is a mental illness, the problem is that those with mental illness are being falsely diagnosed with gender dysphoria because it is the fad pseudo diagnosis of the day

        3. Supported by the medical establishment is for real. Many major pediatric research hospitals have transgender health care programs, which include facilitating mutilating surgeries. These appear on the operating room schedule in such a way as to not always reveal the true extent of the goals. Many in my group refuse to participate in these surgeries. Some because we do not wish to be part of the madness. Others because we know that the legal statute of limitations is not just the adult 2 years, but can extend a decade or more, well into the child’s adulthood. If they come to their senses, no paper consent document can be relayed upon as a shield for lawsuit.

          1. “Supported by the medical establishment is for real. Many major pediatric research hospitals have transgender health care programs, which include facilitating mutilating surgeries”

            The mental health professional has centuries of promoting discredited mental health treatments that were considered the gold standard of the time.
            electric shock treatment
            Witches
            frontal lobotomies
            repressed memory syndrome

            Gender dysphoria is just the latest in a long string of bogus mental health illnesses and treatment

            1. Mr. Cruise, why does it take you so long to make new Mission: Impossible movies? Is it because you need longer to heal each time, or are you spending all your time researching the history of psychiatry?

      2. The solution would be to trust hard science and not quack sociology or social science fads. Sex is a matter of biology and can only be truly determined through a test looking for biological/genetic markers not an interview by an sjw fanatic psychologist . True biological intersexuals will be classed as they are and then the simply mentally distressed children can get the help they need.

        1. The real question that I have is why someone would think that “gender re-assignment” would solve anything. You think you look pretty wearing women’s clothes? Fine, wear women’s clothes. Cutting off or adding a sexual organ shouldn’t affect anything other than bedroom performance.

          1. I never understood why someone who wants to become another sex would want to undergo a dramatic expensive procedure that objectively does not do what they want. Its like wanting to fly so you cut your arms off and attach small paper wings to the stump.

              1. ” the left’s obsession with atypical sexuality.”

                Potty purity laws weren’t passed in leftist states.

                1. “Potty purity laws weren’t passed in leftist states.”

                  In those other states, they didnt want to encourage someones mental delusions.

                  1. OK, in the leftist states they didn’t want to encourage someone’s mental delusions. that’s why they didn’t pass potty purity laws.

                    Happy now?

        2. ” Sex is a matter of biology”

          Biologically, it’s not a binary question, with every person fitting neatly into their assigned box. Politically, some people see an advantage in pretending that it is.

  2. “Tennessee prison officials provide medication only for inmates with the most severe and advanced cases.”

    While prisons are required to pay for sex change operations. Not for Michelle Kosilek — that was a 3-2 en banc 1st Circuit decision, but Idaho does — https://www.cbsnews.com/news/idaho-must-pay-for-transgender-inmates-sex-reassignment-surgery/

  3. How the hell does someone spend 44 years in prison for one rape?

    1. It was a life sentence, and he was fairly young when convicted.

      1. He also is Black, and this was 1976 and in North Carolina.
        Things were different then, it’s important to remember that.

        1. Do you have evidence that the sentence was racially motivated, or is this just conjecture on your part? I ask because the country is being torn asunder by the backlash to supposed “systemic racism,” so it’s important people aren’t casually making baseless accusations of racial prejudice.

          1. Total conjecture, and my being willing to concede that bad things HAPPENED IN THE PAST.

          2. ” the country is being torn asunder by the backlash to supposed ‘systemic racism,'”

            Alternatively, the country was torn asunder by the systemic racism of the last century, and the chickens are just now coming home to roost.

    2. I’m kind of surprised at your bemusement since the general sentiment I seem to come across is that rape even of type in our new modern expanded definitions (ie drunk sex) should be a life sentence if not the death penalty. If you’re a man of course.

      1. The penalty for rape must be less than murder, because if they are the same, dead women tell no tales.

        1. Dead bodies tell lots of tales, if you know how to read them.

          1. CSI was cancelled. Are you over it yet?

            1. I never particularly liked that show.

              1. So you were a CSI:Miami guy?

      2. That Amos sees a general sentiment that includes more victimization of him and men generally is not surprising, not is it necessarily connected to reality.

        1. That you disagree with Amos, does not necessarily make Amos’s view not connected to reality.

          1. The observation that Amos’s belief is not connected to reality IS connected to reality. The fact that somebody disagrees with Amos does not alter this. This isn’t Schrodinger’s cat.

  4. Property taxes are a function of the property value. How can loans, however predatory, plausibly affect property taxes? Is Oakland seriously saying that they would have somehow collected more property taxes if the property had gone unsold?

    re: the puppy – Tragic but It’s not RICO, dammit!

    1. I’d think they would have a stronger case for the costs of dealing with abandoned bank-owned buildings, but that would be more of a nuisance suit.

      1. That would also be an expense for the banks, not for the government.

        1. Not if the banks didn’t pay it.

          Unsecured abandoned houses can take a LOT of police and fire time — homeless druggies can cause lots of problems — the Worcester (MA) FD lost 6 guys looking for the two druggies who weren’t even still in the abandoned building that they
          d lit on fire….

          1. 1. If the property is owned by a bank due to foreclosure, it is technically not abandoned.
            2. The bank has to pay the property taxes until they can re-sell it.
            3. The government can require the bank to secure the property.

            1. “1. If the property is owned by a bank due to foreclosure, it is technically not abandoned.”

              The bank doesn’t live there, and may or may not take care of the property.

              1. The bank’s goal is to recoup the lone by reselling the property. Taking care of the property is necessary to that goal, unless you have a market where a vacant lot would be worth more than an existing home.

                1. “The bank’s goal is to recoup the lone by reselling the property.”

                  True, but if the value of the property is significantly lower than the value of the loan, it may not be possible to sell the property and recoup the loss. At this point, you want to learn what the “sunk cost fallacy” is. If they did such a poor job of safeguarding the property that the wiring has been stolen by “recyclers”, for example, the value of a house is largely hypothetical. Does somebody want the lot enough to bulldoze the house? If not, the bank may choose to forego paying the maintenance and let the property escheat to the state.

              2. Also, see point 3.

        2. Not if the banks didn’t pay it.

          Unsecured abandoned houses can take a LOT of police and fire time — homeless druggies can cause lots of problems — the Worcester (MA) FD lost 6 guys looking for the two druggies who weren’t even still in the abandoned building that they
          d lit on fire….

    2. Well, they actually do have sort of a case. Real estate behaves oddly with varying interest rates: The prices tend to shift to keep the cost of a mortgage constant for a given grade of property, at least when you’re talking existing homes.

      Raise the interest rate, the amount people are willing to pay drops. I guess most products that are financed rather than bought outright behave this way to at least some extent.

      And, what are property taxes based off of? Selling prices.

      So, in a sense “predatory”, expensive loans, do lower property tax revenues!

      1. “And, what are property taxes based off of? Selling prices.”

        Hypothetical selling prices. If the neighbor sells his house for a million bucks, he takes his million bucks and goes away, an doesn’t owe any more property taxes, and they start taxing *ME* as if *I* suddenly have a million bucks. Maybe I could get a million bucks by selling my house, but until I sell, I don’t have any of those million bucks in my pocket.

    3. ” How can loans, however predatory, plausibly affect property taxes? ”

      Becuase predatory loans go to people who can’t pay them, which produces foreclosed properties, which sit and are not tended, lowering the value of the property and the other properties near it.

      1. And in the absence of those loans, the properties fail to sell – which means they sit and are not tended, lowering the value of the property and the other properties near it.

        1. But the old owners still own it, and probably still live there.

          1. Or they sell to the backup bidder, who moves in and takes care of the property as if it were the most valuable thing they own.

  5. “Mentally ill soldier deserts his post in Afghanistan in a misguided bid to trigger a search that he believed would end with him getting face-to-face time with a commanding general he wanted to address. Instead, he’s captured by the Taliban and spends several years in a small iron cage.”

    Multiple other service members were injured — some in life-altering ways — while searching for the appellant soldier. Can someone describe IJ’s editorial slant to me? Why are they highlighting facts that make the appellant seem benevolent while concealing others that show the real world consequences inflicted on the service members who had to try to find him? This was a really disappointing summary to read.

      1. And if he really wanted to be caught AWOL, he could have climbed under his bunk, or into a culvert, or any other number of places ON BASE where he wouldn’t have been found for a few days.

        “Kidnapped” my a**, he went over to the other side, and then learned that they weren’t Boy Scouts….

        1. Have you figured out that your buddies over on “the other side” aren’t Boy Scouts, yet?

    1. I had the same reaction…Bergdahl was dishonorably discharged for multiple reasons. He put many brothers-in-arms at risk for their lives, some were wounded quite badly in firefights. He should be in prison.

    2. I find Bergdahl to be a hard case. Yes he did a lot of damage but he was also acting out of mental illness. So the question is how to punish him for the harm he did while at the same time recognizing that his mental illness played a role. I have no idea what I would have done had I been the judge. I don’t think what this judge actually did was outside the boundaries of acceptable though.

      1. I’m not sure that stupid youthful decisions are the same as mental illness. Bad decisions are universal. And this was merely a colossaly poorly considered decision. No mental illness required to be dumb.

        1. Except he has a well documented history of mental illness. In fact, he had been discharged from the Coast Guard for mental illness and should not have been allowed to enlist in the Army.

          1. “should not have been allowed to enlist in the Army.”
            the army at that time was having trouble recruiting enough soldiers willing to enlist while their new recruits were being sent to Afghanistan.

    3. It is also worth noting that 1. The military judge imposed no real punishment beyond a dishonorable discharge and 2. Bergdahl (both personally and through his lawyer) told the judge that he deserved a dishonorable discharge.

      1. “It is also worth noting that 1. The military judge imposed no real punishment beyond a dishonorable discharge”

        Unless you think a five-figure fine is punishment. How long does it take to save up $10K on an E3’s pay?

    4. Multiple other service members were injured — some in life-altering ways — while searching for the appellant soldier. Can someone describe IJ’s editorial slant to me?

      I don’t even understand what your complaint is. What do the consequences to other soldiers have to do with the issue?

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