Short Circuit: A Roundup of Recent Federal Court Decisions

The Kentucky Derby, phone tapping, and asylum.

|The Volokh Conspiracy |

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

In 2018, the town of Gibraltar, Wisc., banned food trucks after a family started vending on their own property outside their store. After IJ challenged that ban, the town replaced it with a new ordinance prohibiting food trucks from areas where brick-and-mortar restaurants operate. Unconstitutional economic protectionism? This week we got our answer: "I can reach no other conclusion than these ordinances look, swim, and quack like efforts to unfairly discriminate against mobile food establishments in favor of brick-and-mortar restaurants in downtown Fish Creek in the Town of Gibraltar." Click here to learn more.

  • Congress has the inherent power to issue subpoenas, but, says two-thirds of this D.C. Circuit panel, it has failed to pass a law giving it the power to have courts enforce those subpoenas, meaning the House of Representatives cannot sue to enforce its subpoena of former White House Counsel Don McGahn.
  • The District Attorney of Middlesex County, Mass., may have lost her challenge to the federal government's practice of arresting noncitizens in state courthouses. But she has joined the surprisingly lengthy roster of litigants whom First Circuit Judge Selya has compared to or contrasted with Rumpelstiltskin. So there's that. 
  • Members of New York's 10th Street Gang, seeking revenge on rival 7th Street Gang, gather guns and go looking for trouble. Shooting breaks out and two innocent bystanders are killed. A member of the gang—convicted of aiding and abetting the murders by lending a .44 caliber handgun to another member—challenges the sufficiency of the evidence against him. Second Circuit: And he wins. It's undisputed that the .44 malfunctioned and didn't fire. No actus reus, no crime.
  • Syrian man is involuntarily conscripted into the militia, where he undergoes basic training, performs guard duty, and does errands for superior officers. He flees to the United States, where he seeks asylum on the ground that he will be tortured if returned to Syria. Feds: We consider the government militia you were forced to join to be a terrorist organization, and we don't grant asylum to terrorists. Third Circuit: That's right. (Fortunately, he received a more restrictive "deferral of removal" under the Convention Against Torture.) 
  • Does New Jersey's ban on large capacity magazines violate the Second Amendment? Third Circuit: We already decided that it does not when we denied the plaintiffs' motion for a preliminary injunction, so we're bound by the law of the case and cannot reconsider. Dissent: Prudential doctrines shouldn't trump constitutional rights.
  • Third Circuit: Pennsylvania man, who is African American, provides a ride home to a woman who states she is afraid of her drunk, abusive boyfriend. And with good reason. Upon arrival, the boyfriend hurls racial epithets, brandishes a knife, threatens to "chop up" the girlfriend, and jumps on the hood of the moving car. The terrified driver calls 911, who instruct him to convey his interior/exterior passengers to a police checkpoint. Naturally, the driver is arrested on suspicion of drunk driving, despite passing a breathalyzer test, and is charged with multiple…y'know what, just grab a stiff drink and read the case.
  • Does keeping a death-row inmate in solitary confinement for 33 years violate the Eighth Amendment prohibition on cruel and unusual punishment? Third Circuit: Going forward? Yes. But qualified immunity in this case.
  • Third Circuit: Porno Producers Partially Prevail in Push to Prevent Paperwork Penalties 
  • Here's one for the procedure nerds: Partnership sues several pharmaceutical companies as a qui tam relator under the False Claims Act. When one of the partners leaves, that change amounts to the creation of a new partnership. Is the lawsuit now barred by the Act's first-to-file bar, which prevents a new person from intervening or bringing a related action? Third Circuit: Clever, but no.
  • Salvadoran man seeks asylum, alleging that if he is sent back to El Salvador, he will be killed by MS-13 because his sister refused to date a local gang leader. Fourth Circuit: "Like offensive linemen on a football team, standards of review are not glamorous or exciting. But that does not mean they are unimportant." And under the "substantial evidence" standard, this guy is hosed. Dissent: With their "nonsensical" and "cursory" analysis below, "the agencies left their blind side wide open."
  • The City of Austin allows digitized billboards for "on-premises signs," i.e., signs that advertise stuff at the locale of the sign, but prohibits digitization of "off-premises signs." Is this a content-based distinction that violates the First Amendment? Fifth Circuit: It is, notwithstanding Justice Alito's suggestion in Reed v. Town of Gilbert that such distinctions are content neutral. 
  • Fifth Circuit: "The United States prosecuted and convicted Thaddeus Beaulieu for felony criminal contempt. The Government concedes that it committed prosecutorial misconduct but asks us to affirm Beaulieu's conviction anyway. We refuse and instead vacate the judgment."
  • Maximum Security finished first at the 145th running of the Kentucky Derby, but his owners came home without the $1.5 million prize. Racing stewards disqualified the horse for interference. Sixth Circuit: Although the racing stewards are appointed by a government agency, we need not decide whether the procedures they applied comported with due process. The owners had no protected property interest in a prize they had not yet won.
  • When an interaction between Black Hebrew Israelites, a Native American activist, and a group of high school students became the story of the hour, Representative Debra Haaland and Senator Elizabeth Warren Fired off some tweets. Almost two years later, the Sixth Circuit affirmed the dismissal of the students' defamation claims. Because the Congresswomen tweeted their tweets in the course of their government employment, they are protected by sovereign immunity.
  • There is no dispute that the defendant—a Catholic school—would be protected from suit by the First Amendment if it had simply fired the plaintiff because of his sexual orientation. But does the First Amendment bar the plaintiff's claim that the school subjected him to a hostile working environment? No, holds the Seventh Circuit, reasoning that religious employers can control their employees through hiring and firing decisions and need not subject them to abuse. 
  • Tennessee man, unhappy to discover the Red Cloud Indian School is Catholic, posts a video to YouTube (and sends it to a school administrator) showing him taking a large, machete-like knife to the throat of a stuffed frog and saying he was coming to clean house. He then packs his truck with a machete, handgun, and a 5-foot-long samurai sword and drives the 1,000 miles to the South Dakota school. He's arrested in the parking lot, convicted of a weapons offense. Sentencing guidelines say 18–24 months; he's sentenced to 60 months. Eighth Circuit: Which is fine. 
  • Pro tip from the Eighth Circuit: If you wish to appeal a two-year injunction enforcing a non-compete clause, be sure to try to stay the order so your case doesn't become moot while your appeal is pending.
  • Allegation: TSA screener at Minneapolis–St. Paul airport manhandles man on crutches, causing him to fall and get injured. Can the man sue for battery and negligence? Eighth Circuit (over a dissent): Yes. TSA screening personnel qualify as "investigative or law enforcement officers" under the Federal Tort Claims Act, which means no sovereign immunity and the man's suit can go forward. (Circuit split watch: The en banc Third Circuit agrees, the Eleventh Circuit disagrees.)
  • Four men are convicted of sending $10k to a Somali terrorist group. The feds had tapped one of the men's phones pursuant to a warrant that relied on info from an NSA program collecting phone metadata in bulk (a program Edward Snowden made public and the NSA no longer has authority to use). Ninth Circuit: There are significant Fourth Amendment concerns here, and the bulk metadata collection violated the Foreign Intelligence Surveillance Act. But we won't suppress the evidence, and we will affirm the convictions.
  • Apple retail-store employees must undergo exit searches at the end of their shifts, which usually take 5–20 minutes to wait for and undergo. Which is time they must be paid for, according to the Ninth Circuit. 
  • Parents of Hindu children in the California public schools claim that the 6th and 7th grade curricula discriminate against Hinduism. For example, they refer to a sacred text as an important piece of literature in Ancient India and describe Hinduism as a "culture that emerged as a belief system." Ninth Circuit: The materials "reflect careful crafting … to achieve a balanced portrayal of different world religions." No constitutional violations here.
  • Do speakers have a right to speak from traffic medians? Tenth Circuit: Yes! Concurrence: But maybe not if the median is really narrow.
  • University officials: Sure, the plaintiff alleges that we falsely ginned up charges that got him indicted for racketeering, but those charges were dismissed as time barred. He can only sue for malicious prosecution if he beat the charges on the merits! Eleventh Circuit: No, we're pretty sure he can sue for malicious prosecution anyway.
  • Two-thirds of this Eleventh Circuit panel agrees that the Eighth Amendment allows prison officials to take into account the fact that a new Hepatitis C treatment is "really expensive" when deciding whether all prisoners with Hep C will get it immediately. 
  • Can the son of the former Prime Minister of Albania show a book's author and publisher had actual malice in depicting him as connected to the "Albanian mafia" as part of a wild story of gun-running later made into a Jonah Hill movie? No way (or, as the Albanians say, jo aspak), says the Eleventh Circuit, in part because of "the many prior published reports" making similar allegations. 
  • An Alabama man's attempt to bring a stray dog to a shelter without showing anyone his ID turns into a melee with police officers, multiple tasings, and a final, surprise gunshot. A "gothic story," says the Eleventh Circuit, in which qualified immunity is unwarranted.
  • And in cutting-edge mandamus news, the D.C. Circuit finds that former Secretary of State Hillary Clinton (though not her aide Cheryl Mills) is entitled to a writ of mandamus to prevent her deposition in connection with a FOIA case and (sitting en banc) that former National Security Advisor is not entitled to a writ preventing the district court from holding a hearing about the government's motion to dismiss his prosecution.
  • And in en banc news, the Tenth Circuit has voted to rehear its earlier ruling upholding a federal rule defining bump stocks as illegal "machine guns." The Ninth Circuit, however, will not reconsider its decision requiring a warrant for most forensic searches of a phone at the border. Six judges dissent, warning that this "makes our borders far more porous and far less safe."

Friends, earlier this summer, the U.S. Supreme Court granted IJ a victory in Espinoza v. Montana Department of Revenue, holding that states cannot disqualify private schools from a state subsidy program solely because they are religious. This week, IJ filed a new case on behalf of Dennis and Cathy Griffin against the state of New Hampshire, which prohibits so-called "tuitioning towns"—towns that are too small to operate their own schools and instead pay student tuition at nearby private or public schools—from providing assistance to families that wish to send their kids to religious schools. Learn more here.

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  1. Does keeping a death-row inmate in solitary confinement for 33 years violate the Eighth Amendment prohibition on cruel and unusual punishment? Third Circuit: Going forward? Yes. But qualified immunity in this case.

    I can hardly wait for the case where someone was held in solitary for thirty-two years, and the court grants qualified immunity because no one has yet said that thirty-two years is too long.

    1. I love the part where the ruling clearly lays out that the courts have known the long term solitary is permanently harmful, both mentally and physically, AND that the officials were aware of the medical problems and the previous court cases – but then proceeds to let them off because the closest previous case in the same circuit didn’t have a death-row prisoner.

      1. One might also ask how, in any country that claims to have a sane and functioning judicial system, a person could be on death row for 33 years.

  2. What I don’t understand about the PA perp-on-hood incident is why the police would tell him to go onto a HIGHWAY to where there were cops at an OUI roadblock. That’s all kinds of liability all around — for the police — if anything goes wrong.

    Why not send those police officers to him? Seems like a much safer approach.

    And not mentioned here is that a Ford Explorer has a spy chip, an Event Data Recorder that would have recorded each time he slowed down, each time he hit his brakes, and his exact speeds all the way — it eventually overwrites itself but they can download that and Ford’s had them for some time — that’s how we know that former MA Lt Gov Tim (Crash) Murray was going 107 MPH when he went into a ledge.

    Were these the Keystone Kops?

    1. The facts of this case were about as infuriating as any case I’ve read recently. How does a racist like this become a cop? (Yes, I know; some questions answer themselves.)

      Ed, if someone were on your car hood, with a knife, possibly also a gun, and a cinder block nearby, I suspect that the last thing you’d want to do is just sit there, waiting for cops to arrive. If I had been this poor guy (inside the car), I’d assume that if I just sat there, I’d be dead by the time the cops did arrive. I’d definitely be driving *somewhere*. Probably starting and stopping suddenly, to get the guy (who was screaming and threatening the entire time, rather than quietly trying to safely get off the car, or shouting for the driver to slow down, so that he could safely get off the car) jostled off. I, like you, Ed, don’t know why the 911 operator apparently told the driver to get on the highway (or, to stay on the highway) in order to meet up with the cops.

      One wonders if this pathetic excuse for a cop (ie, Officer Cesnalis) still has his job. Hopefully, after the case goes back to the trial court and the actual victim gets millions of taxpayer dollars in a judgment/settlement, Cesnalis will indeed be looking for a new line of work.

      Pro tip to all of us: If you ever are assaulted, or have your life threatened over an extended period, or you are kidnapped, or raped, etc, just make sure that–when the cops do arrive–you do not act nervous, or sweat, or speak rapidly. Cuz apparently there are cops that will see these normal human response as evidence of YOUR guilt. The mind boggles.

      1. Harvard should sue Officer Cesnalis and the officer should not benefit from qualified immunity. Sadly, Harvard will have to settle for suing the State Highway Patrol. A judgement of a few million dollars in Mr. Harvard’s favor should convince the service to instruct its officers to be a bit more respectful.

        1. I am reading the opinion now. Harvard has sued Cesnalis. Good.

      2. ” I, like you, Ed, don’t know why the 911 operator apparently told the driver to get on the highway (or, to stay on the highway) in order to meet up with the cops.”

        Chose the shortest/fastest path?

      3. I’d have gone full throttle and then full brake and if that didn’t work, I’d have intentionally hit things. The perp would not remain on my hood, trust me… And the EDR chip would have recorded all of this.

        0f course, I would never give a woman a ride home under these circumstances, no matter how cute she may be. It simply isn’t worth it….

        1. “0f course, I would never give a woman a ride home under these circumstances, no matter how cute she may be. It simply isn’t worth it….”

          “One particular incident retold in the article is a visit by Trump to the Arlington Cemetery grave of General Kelly’s son, Robert Kelly, who was killed in Afghanistan in 2010. During that visit, Trump allegedly said to his then Secretary of the Department of Homeland Security, “I don’t get it. What was in it for them?”

          1. Kirkland, you truly are an arsehole.

            I hereby petition for you to be censored.

          2. Imaginary incidents don’t become real just because they’re published, Kirkland.

            1. “Imaginary.”

              Wow. You really have swallowed the Kool-Aid.

              No one with a functioning brain can doubt that Trump made the statements alleged in the Atlantic article, but Our Brett, and presumably other cultists, continue their devotion to the Trumpenprincip.

      4. Santimoinica, I’ve long ago trying to figure out why cops are so stupid, although they do have IQ limits (seriously…).

        I think half the problem is the morons we are hiring and the other half is what we are teaching them. As late as the 1970s they had to hire vets, and a lot of bright kids got drafted….

      5. “Ed, if someone were on your car hood, with a knife, possibly also a gun, and a cinder block nearby, I suspect that the last thing you’d want to do is just sit there, waiting for cops to arrive.”

        Yes, but I wouldn’t take the vehicle out on the Interstate….

        This started in a residential neighborhood — in the perp’s driveway.

        1. In my experience, once the dude gets a good grip on the edge of the hood that your wipers go under, you’re not dislodging them. (Yes, an idiot did this to me back in the 70’s.) Unless you’re driving an extreme sports car, you just don’t have enough acceleration available.

          I suppose you could get going and deliberately collide with something, but trading the possibility of them getting into the car for the certainty of being in a car wreck isn’t smart.

          Once you drive away from the hypothetical cinder block, and get up to faster than they can run, you’re likely good unless they do pull out a gun… at which point you probably can dislodge them, because they’re down to one hand. But as long as they’ve got two hands in play, you’re just not getting rid of them.

    2. We need to save some outrage for the district court judge who tried to sign off on the corrupt cop’s action.

      Joy Flowers Conti. Google her, she’s the spitting image of Captain Bligh.

      1. Judge Conti is a Republican whose route to the bench relied on the Catholic Church. A “forgiving” approach to abuse of authority seems consistent with that background.

    3. One thing about “spy chips”. Cars with airbags typically have a way to record the last few seconds before air-bags are deployed. Manufacturers put that in there for their own liability protection. “Air bag didn’t protected the victim” “Uhm, victim was traveling at 98mph before he hit a tree…” Spy chip typically records speeds, throttle position and if the brakes were activated. I believe on modern cars it also records the weight of the driver/passangers because modern air bags can inflate at different power levels depending on who they are trying to hold back. Ditto for side impact deployment (and even roll over).

      I was trying to find out if Cesnalis is still a cop. The good thing is any defense lawyer who googles his name would be led to this case. No cop of the year for Cesnalis!

      1. It’s more than a few seconds with Ford — the MSP were able to download everything from when he started the vehicle to when he crashed an hour later.

      2. “Spy chips”? It’s just the ‘flight recorder’ function of the car electronics. It’s there for the same reason planes have flight recorders: To help reconstruct accidents.

        1. Pilots are told about the recorders — and the post-911 crash sensor that goes to the USAF in I believe Nebraska.

          Motorists weren’t told about the EDRs.
          QED “spying….”

    4. I don’t think the 911 dispatcher told them to go onto the highway–Harvard did that on his own volition (it’s not clear why from the opinion). It just took until they were already on the highway before the dispatcher and the cops figured out a plan for what to do.

    5. And people wonder why black people don’t trust the justice system.

      This happened in 2015. Harvard filed suit in 2017. All his claims were summarily dismissed, and he’s only just got that reversed. So far its been 5 years, and the case can now go to trial.

      What was the trial judge thinking? Reading the appeal judgement I can see no grounds at all for dismissing all the claims. Was the judge racist? Or just in the pocket of the police dept? You really do have to wonder.

      Meanwhile this story from when the suit was filed says that “Cesnalis now is assigned to the Kiski Valley station; he could not be reached for comment there.”

      So the bad apple was just moved to another barrel.

  3. I appreciate the tension between brevity, quality, quantity, and clever summing up, but I think these three were a bit too cute and short. The summary should not leave the reader with so little to go on whether to download and read a heft legal PDF.

    whom First Circuit Judge Selya has compared to or contrasted with Rumpelstiltskin

    y’know what, just grab a stiff drink and read the case.

    Porno Producers Partially Prevail in Push to Prevent Paperwork Penalties

    1. Eh, I think the Pennsylvania DUI one lays it out pretty well. And I was familiar with the Massachusetts case, but I can see why it would be a little frustrating if you weren’t.

      1. The Pennsylvania case tells more than the other two, but not much, and provides no result. It’s not intriguing enough to wade through a legal PDF.

        1. These posts do a decent job of flagging interesting cases, but if you’re relying on the summaries wholesale instead of using them to decide whether or not to read the whole thing, you’re in for a bad time.

          1. Ideally, they’d be written so as to work either way (as a guide to further reading, or as a complete summary of the case (thus far)).

      2. Judge Shelly Joseph’s trial should be interesting…

  4. “Cells in the CCU are no larger than 7 feet by 12 feet”

    How large is the grave of his victim?

    1. This isn’t the Old Testament, Bob.

      Murders are human.

    2. “How large is the grave of his victim?”

      How little do you care about the record with respect to exonerations?

      Why do clingers promptly switch from their standard ‘government is inept, misguided, and suspect’ to ‘government is infallible, wise, and righteous’ when government wants to kill or punish someone (especially a nonwhite citizen)?

      1. Well, if they’d executed him 32 years ago, it wouldn’t be a case of “33 years.”

  5. Every time I see the IJ wasting their time on food truck lawsuits, I’m wondering if they ever think that food truck operators parking near brick-and-mortar stores are free riding on the property taxes paid for by said stores? Food trucks should be for construction sites and festivals and concerts, etc., a town should have the right to regulate them as such.

    1. Free-riding my ass. Do you always take the system’s side in a dispute? Even the Supreme Court once ruled that no one has a duty to pay maximal income tax. Why should this guy be forced to do business that maximizes government revenue?

      1. ” Why should this guy be forced to do business that maximizes government revenue?”
        He isn’t, but the key point of a food truck (mobility) is wasted if all they’re doing is parking in the lot of a competing restaurant. If he isn’t moving, why shouldn’t he pay taxes just like the guys with the bricks and he mortar?

        1. Wait. You’re saying if I don’t drive my car enough, I should pay property tax on it (on top of vehicle registration) because I’m wasting mobility? Is that your theory here?

          1. ” You’re saying if I don’t drive my car enough, I should pay property tax on it (on top of vehicle registration) because I’m wasting mobility? Is that your theory here?”

            Point to where I said that.

            1. Do you see the question marks in his quoted words? Do you understand what they mean?

        2. Same response: Why do you side with the government in thinking the food truck is immoral because the owner finds a way to pay less tax? What is so noble about the government punishing people who find a way to pay less tax?

          1. “Why do you side with the government in thinking the food truck is immoral because the owner finds a way to pay less tax?”

            Didn’t say anything about morality of any kind, so I’m a bit confused by your comment. You seem to be providing arguments and positions that aren’t in there.

        3. It’s not just that they are paying less tax, is that they are free-riding on the services that the brick and mortar stores property taxes pay for; street repair, police, lighting, parking enforcement, etc….all the things that make eateries possible. It’s not that food truck pay NO taxes, they get all the benefits of property taxes without contributions. Like getting social security checks without paying into the system.

          1. Vehicles pay into the system to support their driving already. This is just profiteering on top of it. They have no need for a fire department beyond what a burning vehicle might need, or police, which is already built into the system.

      2. Think the issue is that if the food truck parks on a public street it is operating a business on public property, whereas the restaurant has to pay for its space.

        The ability to do that is what makes the food truck mobile.

        1. Food trucks freeload in many ways . . . location and rest rooms are prominent ones.

          1. Food trucks largely service workers near to their employment, where toitys exist for them to use. Also the truck has no more need for such than does a supermarket.

            And how does taxes help with that any more than with a registered and a-ok hot dog cart? Unless it’s really just about governmemt gettin’ it’s cut.

    2. Man you are usually better than this.

      Regulate food trucks, as in subjecting them to the same parking rules as any other truck of the same size, sure. Regulate them so as to protect particular businesses? Nope.

      Also, if you think property taxes are specifically for the piece of street right in front of your property, you’re wrong. Lots of us pay taxes for that street and lots of us want to eat from food trucks. I also boycott restaurants that try to use ward-boss tactics against their better tasting, better priced competitors.

      1. And you are usually better than this yourself.

        First, zoning regulations are constitutional. A municipality can say we don’t want buildings over three stories tall, or that we don’t want a liquor store next to a church, or even that we don’t want two liquor stores across the street from each other. Yes, citizens have the right through their elected representatives to meddle with the free market.

        And if a city says that they don’t want to deal with the vacant buildings from out of business eateries (which operate on a thin margin) because food trucks park in front of brick and mortar stores that pay more taxes, then they should have every right to do so.

        Note, I am aware that bar owners are the first to show up and try to prevent the new liquor store being built. There are no solutions though, only trade-offs, and food trucks are free-riders if they park nearby and take business from a brick and mortar eatery.

        1. Yes, citizens have the right through their elected representatives to meddle with the free market.

          Yes, we know. This site regularly fights against it. They even once quoted a sarcastic judge who pointed out politicians giving economic advantage to favored factions was American politicians’ national pastime”.

          In fact, it is worldwide and history’s national pastime. People go into government to get in the way, so they can get paid to get back out of the way. In the US, with a free press, they just have to be more clever about it, hiding it behind memes that supportive useful idiots latch onto. The idiots get a little rush of feeling they are doing The Right Thing, and the politicians get their interference with subsequent donations, and “donations”, per human history.

    3. Looking at the business side of this, could it possibly be that an individual can afford to buy a food truck to operate by himself, but not be able to rent space or buy property that will require larger staffs, bringing in a whole ton of additional paperwork and liability?
      Maybe?
      I know from research that you can start by paying cash for a tow behind hot dog vending trailer for less than the application fees of a brick and mortar storefront.

      How would you feel about paying to park on public streets only in areas near bus stops, because you used up gas when you could have taken the bus?

      1. The entire analysis of the pros orients around kneeling to government, and government giving protection against competition.

        Mere freedom in a free country doesn’t exist in their minds. You only exist to serve the government. Your actions to keep food in your mouth and a roof over your kids’ heads only has validity insofar as you send government money. Then you are permitted.

    4. It’s almost like different modes of doing business have different advantages and disadvantages!

    5. In this case, the food truck and the property it was operating on were owned by the same people (who presumably pay property taxes), so it seems like your complaint about trucks is pretty irrelevant, no?

      If the big concern about food trucks was that they free ride on taxes, that seems like it would be a pretty easy problem to fix by taxing the trucks versus banning them.

      1. Note the real reason is shutting them down to protect interests, and not taxes, or it could be quickly fixed.

        But taxes are in the open, while lined pockets for shutting down competition are not.

  6. Why are illegals and BLM felons immune to our laws?

    1. Because you are highly gullible and believe stupid things people tell you.

      1. Because you are highly gullible and believe stupid things people tell you.

        Says the fine fellow who just assured us that Obama’s infamous “I have a pen and a phone” routine was just about calling Congress to persuade them to pass stuff.

        Or did you not really believe that?

        1. “Says the fine fellow who just assured us that Obama’s infamous “I have a pen and a phone” routine was just about calling Congress to persuade them to pass stuff.

          Or did you not really believe that?”

          Just because Obama was unpopular with your and your buddies, doesn’t mean everybody shared your disdain. Obama had the ability to call his party’s Congressmen and apply leverage.

      2. Do you know of any DA’s that have not charged BLM rioters with felonies but instead released them?

        1. Rachael Rollins refused to prosecute Boston rioters, going so far as to sue a judge. https://www.boston.com/news/local-news/2019/09/04/rachael-rollins-straight-pride-parade-protesters

    2. Well, Mr. Gompers, plenty of commenters here keep insisting that undocumented immigrants aren’t “subject to the jurisdiction” of the US. Maybe that’s your answer?

      Or what Pollock said.

      1. Hey remember that one time in St. Louis where that DA wouldn’t charge the BLM rioters but did threw the book at that white couple who was defending their home in that gated community?

        Remember that?

        1. Yeah, you’re just being a mark for right-wing media:

          “To date, officers have provided evidence in just seven of the 36 cases, I have only been able to charge those individuals.”

          1. Haha I know right. There aren’t countless videos out there or dozens of businesses burned down. She can’t find evidence! Her hands are tied. Just like that DA in Portland. No evidence of anyone committing any felonies! Haha yeah.

            Hey remember how that convicted felon had his illegal gun drawn on Kyle and there are videos of it everywhere? Haha yeah that DA in Kenosha can’t find evidence either! Haha.

            Haha yeah.

            1. ” There aren’t countless videos out there or dozens of businesses burned down. She can’t find evidence!”

              Evidence that a building burned down doesn’t help you convict unless the defense strategy is to claim that there’s no arson because nothing was ever on fire. You need videos showing identifiable individuals starting the fires.

          2. P.S. the police also didn’t bring her any evidence of that couple in the gated community, but somehow she still managed to press charges. Weird, huh?

            1. If the job is so easy as to point her to dispositive videos, then the police maybe should have done that.

              1. Did the police point her to those videos or did she somehow find enough initiative on her own?

                1. Don’t know, don’t care.

                  The issue here is that you can’t claim there’s a double standard if the police aren’t being even minimally diligent in their evidentiary duties.

                2. there’s video of the gun couple threatening to shoot people. There isn’t video of them starting any fires. That’s why they’re charged with threatening to shoot people and not burning down buildings. Duh.

                  1. Pity they didn’t shoot them….

                    1. They were protesters, Ed. You want to shoot protesters.

                      You’ve got issues.

        2. Hey remember that one time in St. Louis where that DA wouldn’t charge the BLM rioters but did threw the book at that white couple who was defending their home in that gated community?

          Remember that?

          No. I do remember when the DA wouldn’t charge protesters, but did charge the white couple who (apparently) illegally brandished firearms at people walking past their home. They were not “defending” anything.

  7. And I thought that I couldn’t hate government more — looking at a couple of these cases (Pennsylvania, solitary) proved me wrong.

    GRRRRRRRRR

    1. Agreed. This week’s group of cases was particularly rage-inducing, no?

  8. Second Circuit: And he wins. It’s undisputed that the .44 malfunctioned and didn’t fire. No actus reus, no crime.

    I was getting ready to rant about this one, but it turns out it isn’t a new idiocy – the court was just following it’s own precedent from 1995 that merely attempting to commit a violent crime – like say, kill someone – doesn’t constitute a crime if the gun malfunctions, bomb doesn’t detonate, or weapon is otherwise misplaced/misused (even if the other conspirators do successfully commit the crime).

    What’s terrible, though, is that the guy probably deserved to beat those charges, because he didn’t actually supply the weapon: he just handed it from one guy to another.

    1. “What’s terrible, though, is that the guy probably deserved to beat those charges, because he didn’t actually supply the weapon: he just handed it from one guy to another.”

      Ah, the old, he didn’t supply the weapon, he just supplied he weapon” defense!

      1. No, someone else supplied the weapon and put it on the table. This guy literally picked it up and handed it to someone else.
        The driver for the hit didn’t supply the weapons, either, even though it was his driving that transported them.

        The guy has rightfully been convicted on other charges for the murders, but that one particular charge – supplying a weapon – is absurd.

    2. I was getting ready to rant about this one, but it turns out it isn’t a new idiocy – the court was just following it’s own precedent from 1995 that merely attempting to commit a violent crime – like say, kill someone – doesn’t constitute a crime if the gun malfunctions, bomb doesn’t detonate, or weapon is otherwise misplaced/misused (even if the other conspirators do successfully commit the crime).

      You misread the case. It’s not that it doesn’t constitute a crime; it’s that it doesn’t constitute the crime for which he was prosecuted. They didn’t charge him with an attempt crime. They charged him with aiding and abetting the shooting, even though his provision of a non-working gun could not, and did not, cause the shooting.

      1. Right, it’s like stupidly charging somebody with battery instead of assault, when they swung at the victim but didn’t connect.

      2. Yes, I got that. I’m sorry that I failed to specify exactly which of the many charges I was referring to; I assumed it was clear. In hindsight, I can see how my phrasing was bad.

        But I’m still going to say it is absurd that the reason he beat the stupid charge was because the gun misfired. If the gun had fired, then according to their logic, he would have been guilty of supplying the weapon… for literally handing something to someone.

  9. “Do speakers have a right to speak from traffic medians? Tenth Circuit: Yes! Concurrence: But maybe not if the median is really narrow.”

    Wait – you have to stay on the median? When was this new, racist rule adopted?

    1. Eddy,

      Federal law, regulations, state law, all bar use of roadway right of way without a permit for use. Advertising in the right of way is prohibited by federal and state laws.

      No, you cannot stand in the middle of the roadway and scream that the 10th Circuit is a bunch of fools. Try the same form of expression on an airport runway….Homeland security will shoot you dead.

      1. Unlikely, though they may break your arm removing you from the premises.

  10. “Because the Congresswomen tweeted their tweets in the course of their government employment, they are protected by sovereign immunity.”

    And Trump says, “And they thought my tweets were outrageous before…”

  11. 10th Circuit ruling against Oklahoma City is a joke. Roads are regulated, advertising is prohibited in the right of way by state and federal law. Advertising is a driver distraction and a threat to public safety, has been that way since 1966. Everything in the roadway right of way is regulated, special use requires a permit. This is not new. 10th Circuit judges are idiots. Not a First Amendment case. Like the runway at an airport is open for political campaigning? A railroad bridge over a public river? How about First Amendment right to stand on the third rail of the subway?

    Looks like the courts have become the public forum where idiots gather to argue over that which they no nothing.

  12. Because the Congresswomen tweeted their [potentially libelous] tweets in the course of their government employment, they are protected by sovereign immunity.

    Still, they should pay a token amount voluntarily as they are honorboun…oh, I see the problem.

  13. Perhaps someone can explain to me the Constitutionality of why “active and retired law enforcement officers” are routinely exempt from laws which otherwise restrict (violate) the 2nd Amendment rights of the rest of us?

    “You were once employed by the Government, so you get EXTRA rights that nobody else can have.” How the fuck is that even remotely legal?

    1. Particularly since there may be good reasons why the “retirement” was encouraged. If a bad cop is close to retirement, it’s not unheard of to put him on a desk job for the last 18 months or so until he’s eligible to retire — it’s easier than fighting with the union and it probably will take you that long anyway.

  14. While I often think court opinions are two long, the DC Circuit’s opinion in the congressional subpoena case was two short. It should have summarized the background facts and laid out the relevant statutes, and then explained why the statutes did not cover the House’s action, and then discussed Supreme Court precedents on inherent powers equity actions, before going into refusing to find an inherent cause of action where Congress has passed specific statutes on judicial enforcement of Congressional subpoenas which do not cover the kind the House wants enforced.

    A court has to be very, very careful in a case like this not to sound partisan. By ommitting a background discussion of the underlying facts and relevant law and going directly into why it thought the House was wrong, the court gave its opinion an unnecessarily argumentative, an hence an unnecessarily partisan-sounding tone.

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