Short Circuit: A Roundup of Recent Federal Court Decisions

Chokeholds, no-knock raids, and mass torts.

|The Volokh Conspiracy |

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

Recently the Eleventh Circuit upheld Florida's system of allowing former felons to get back their right to vote, even though it makes it very hard for former felons to actually do that. Critics have rightfully decried the ruling, but, unfortunately, it's based on decades of Supreme Court precedent that many of those same critics have likely endorsed. Director of IJ's Center for Judicial Engagement Anthony Sanders tells us how supporting the extreme version of the rational basis test in some cases but not others is a bargain with Leviathan that you just can't win. Click here to read.

  • After Congress declined to appropriate funding to Build The Wall, the president moved some money around to build some of it anyway. House of Representatives: Can't do that. D.C. Circuit: "It is a core structural protection of the Constitution—a wall, so to speak, between the branches of government that prevents encroachment of the House's and Senate's power of the purse." Therefore, the House has standing to sue. The case should not have been dismissed.
  • Police planning a no-knock raid on a suspected drug dealer observe him leaving home around 9:00 p.m. Without checking whether the suspect had returned, police conduct the raid the next morning. Within seconds of breaching the front door, police shoot an unarmed houseguest in the stomach. Jury: The officer wasn't negligent, but the city was. Trial court: The municipality didn't have a "special relationship" with the plaintiff and therefore had no duty to avoid negligently getting him shot in the stomach. Second Circuit: Not so clear; we'll let the New York Court of Appeals straighten this out.
  • Technology company rescinds job offers after background checks turn up past felony convictions. Two would-have-been employees sue, claiming the company's policy has a disparate impact on African Americans.  Second Circuit:  Plaintiffs would have us assume that, because African Americans in general are more likely to have felony convictions, the same holds true for African American web developers.  That assumption is not plausible or even logical, so the complaint must be dismissed.
  • Grim reading: At the turn of the 20th century, German colonial and military authorities annihilated about 100,000 people in what is now Namibia, killing 80% of the Ovaherero and 50% of the Nama tribes and subjecting many more to slavery, concentration camps, and live medical experimentation. Second Circuit: These terrible wrongs can't be addressed in U.S. courts.
  • After praising the Christchurch massacre online, white supremacist is interviewed by the FBI. He lies to agents about owning a gun, and he's convicted of making a false statement. Among his conditions of supervised release: monitored internet use and no promoting violence online (or posting at all on violence-promoting websites). Second Circuit: Yes, he was convicted of lying to the feds about a gun, but, in the broader context, these conditions are appropriately related to the crime. The "violence" condition, however, is too vague.
  • Stay in your apartment, says Philadelphia 911 operator, and wait for the fire department to come rescue you. But then the 911 operator gives the fire department a wrong address and neglects to mention there's a family still in the building. Rescue never comes. Third Circuit: Gov't owes a duty of care when it itself creates a danger; but that rule does not apply here, where the operator merely failed to act. (Two judges separately confer, find this conclusion "troubling" not because it denies liability but because liability might conceivably be imposed in some other case.)
  • Allegation: Acting on the advice of his lawyer, Pennsylvania man stands up at a sheriff's auction to inform bidders that he has an unrecorded interest in a property up for auction. An attorney for the sheriff's office and an officer promptly place him in a chokehold, stun him, and drag him from the room for violating their unwritten "no comment" rule. A First Amendment violation? Third Circuit: The auction is a nonpublic forum, and the "no comment" rule is a reasonable way to move things along. Probably didn't need to rough the guy up, though.
  • In which Judge Willett, concurring, again expresses himself of the view that "courts should attempt to provide greater judicial guidance" in qualified immunity cases by "explaining whether a right was in fact violated, not merely whether a rights violation was clearly established." (Nota bene: A pending cert petition authored by, inter alios, the MacArthur Justice Center invites the U.S. Supreme Court to align itself with this view.)
  • Courtesy of the Fifth Circuit, here's a reminder that it doesn't matter if subject-matter jurisdiction wasn't raised below. Thus, this challenge to state billboard regulations—removed to federal court by the gov't, which raised subject-matter jurisdiction just 11 days before appellate argument—is headed back to state court.
  • After more than 1,300 cities and counties file lawsuits against opioid manufacturers, the cases are consolidated in the Northern District of Ohio. Attorneys representing 51 of these plaintiffs attempt to certify a "negotiation class" consisting of every city and county in the United States. The trial court certifies the class; objecting municipalities appeal. Sixth Circuit: However "innovative and effective" such a class might be in resolving mass tort claims, it's not allowed under the Federal Rules. Dissent: The Federal Rules are about making it easier to resolve cases, and that's how we should interpret the class certification rules.
  • After sustaining a blow from a baseball bat, would-be robber is arrested and held in Franklin County, Ky. jail. In the days that follow, he consistently vomits and suffers two seizures before being taken to hospital (where he suffers a third seizure). Sixth Circuit: The jail's medical personnel were not deliberately indifferent to the man's medical needs, so his constitutional claims were rightly dismissed. Partial dissent: For three of the nurses, a jury should decide whether they acted recklessly.
  • In 1971, a hippie is murdered in Nederland, Colo. The main suspect is the town's marshal, but he's not charged until confessing at a nursing home in 1997. Twenty years later, one of the hippie's friends decides "to take care of some old business" by leaving a homemade bomb at the Nederland police station. (The bomb squad neutralizes it.) He's sentenced to 27 years. Tenth Circuit: Resentence him. Among other things, shouldn't have applied that terrorism enhancement.
  • Eleventh Circuit: It violates due process for judicial actors to profit from convictions and sentencing decisions and that also goes for quasi-judicial actors, like private probation companies. So a lawsuit against a probation company used by Gardendale, Ala. to impose conditions on probationers and extend their terms of probation, thus increasing the fees the company could extract from them, should not have been dismissed. (IJ filed an amicus brief urging this course of action.)
  • And in en banc news, the Fourth Circuit will not reconsider its decision that a school district violated Title IX and the Constitution when it prohibited a transgender male student from using male restrooms. Judge Niemeyer concurs in the denial on the grounds that the panel opinion is so wrong the Supreme Court should take the case directly. Judge Wynn concurs on the alternative ground that the panel opinion is so right that there's nothing to rehear.

Priscilla Villarreal is a one-person news phenom in Laredo, Texas. Going by "Lagordiloca" (an endearing Spanish nickname meaning "the big crazy lady"), she's drawn national attention for her bold newsgathering and unfiltered reporting. As a critic of local government and police, she's also drawn their ire. So they began a campaign of retaliatory actions against her, culminating in her arrest and prosecution under an obscure and seldom used statute against "misuse of public information." But Villarreal didn't misuse anything. All she did was ask a confidential police source to corroborate facts about breaking news stories. That's what Pulitzer Prize winners do every day. So Villarreal sued for retaliatory arrest. But a federal district court granted the officials qualified immunity, holding that they could plead ignorance of the First Amendment by pointing to their reliance on a statute—no matter how obviously unconstitutional or inapplicable. Now, IJ has filed an amicus brief in support of Villarreal, urging the Fifth Circuit to recognize that the district court's holding is dangerous to a free society and that qualified immunity cannot shield officers who enforce blatantly unconstitutional laws or criminalize core First Amendment activity.

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  1. I took the time to review contemporaneous news accounts of the Florida felon reenfranchisement proposition. It’s quite clear that the law the state adopted faithfully implements the proposition as it was sold to the public prior to the election. The proposition’s backers changed their tune on what it meant after they won, attempting a judicially enforced bait and switch. Only the courts didn’t go along with the scheme, and quite appropriately upheld the law.

    At least some of the felons do indeed have a valid complaint, though. Wouldn’t this be better addressed on an as applied basis, since it isn’t all of them?

    1. One very much wonders why it is that if the Florida system for keeping track of fines and costs is so very badly broken, why no one has sued directly to address, and correct via injunction if need be and appropriately justified, the operation of the system.

      If the system is that broken, the inescapable conclusion, actually, is that nobody in Florida is being at all serious about trying to COLLECT on these obligations.

      I expect the SCOTUS to refuse to reverse the Eleventh Circuit opinion (which is already from the en banc court, having skipped panel review, strangely enough). The holding of the election in November will moot the case, at least for emergency injunctive relief.

      Where the dispute should resume, or more properly, return, is to the Florida legislature. An awfully good argument can be made there that to correct the injustices complained of in Mr. Sanders’ essay (which I also address in a comment below), the Legislature ought, as a matter of legislative grace, clear the books and grant, in effect a pardon and remittance of all outstanding fines and costs that cannot be promptly, definitively, and accurately assessed and communicated. And the same legislation ought to create mechanisms to ensure that on a forward-going basis, proper records are kept, such that in future election cycles the will of the voters, as expressed in the constitutional amendment and enabling legislation, is honored without the unfairness to the otherwise forgiven felons to whom the franchise is intended to be re-extended.

      1. It’s likewise inconceivable to me that if their lawyers are held accountable to and for the class they represent, those lawyers have put their clients into a situation of equitable laches and estoppel, by waiting to raise this issue until the brink of this election, when the issue should have been addressed and litigated even before the constitutional amendment was passed.

        1. Bah. Editing error: That should read:

          “It’s likewise inconceivable to me that if their lawyers are held accountable …, those lawyers have not put their clients ….”

          That reversed my meaning; sorry for any confusion. #editbutton

      2. “If the system is that broken, the inescapable conclusion, actually, is that nobody in Florida is being at all serious about trying to COLLECT on these obligations.”

        Or, perhaps, being ABLE TO collect on them.

        No one ever bothered because none of them ever paid.

        1. Perhaps none of them ever paid because Florida make it as difficult as possible for felons to find legal employment.

        2. Well, yes, but …

          The reason no one ever pays is because the threat behind nonpayment — sending you back to jail — was apparently never made good upon.

          1. “The reason no one ever pays is because the threat behind nonpayment — sending you back to jail — was apparently never made good upon.”

            Demanding money that a person hasn’t got doesn’t make it magically appear, no matter what the threat is.

      3. I have no experience with Florida, but Multnomah County, Oregon is trying to assess a tax on me despite the fact that I do not live in Multnomah county, Oregon but rather Wake County, North Carolina (where they were actually sending me the bills).

  2. If the House thinks the President has violated its core powers it can impeach him. And the Electors can elect a new President. But Article III courts cannot and should not adjudicate direct disputes between the political branches, When as here Congress is not willing to use its own powers to enforce its will, that is Congress’ prerogative.

    There will be enough people affected by the wall to guve rise to actual cases and controversies. Courts should wait for that to happen and not rush in.

    I agree on the merits that it’s wrong. But that’s besides the point. Federal courts have limited powers and are not knights errant going out looking for wrongs to right. Nor are they the political branches’ mommies and daddies. The political branches are grownups and can take care of themselves.

    1. In addition, the House is not Congress, its just half or it.

      The Senate does not object.

      1. Bob,

        Do you realize you just completely undermined ReaderY’s argument. The House can’t remove the President, so his suggestion of impeachment is, as you helpfully point out, toothless.

        We are a nation of laws. The President should not spend money on pet projects using funds dedicated to another purpose. Surely, we can agree on that. ReaderY does.

        As to the Senate not objecting:

        To put it simply, the Appropriations Clause requires two keys to unlock the Treasury, and the House holds one of those keys. The Executive Branch has, in a word, snatched the House’s key out of its hands. That is the injury over which the House is suing.

        I would think conservatives concerned about out of control spending would applaud empowering either house of Congress to challenge unauthorized spending. What good is a check if the President can just ignore it and one of the chambers with the Constitutional authority (one of the keys to the Treasury) to check the President’s spending has no recourse when the key is essentially stolen from them?

        1. House is not Congress.

          Only the Senate and House together have the right to use or withhold that key.

          They should not have granted the emergency powers Trump relied on in the first place.

          1. Only the Senate and House together have the right to use or withhold that key.

            That’s pretty obviously not true. An appropriations bill requires both to act, so only both together can use the key but either has the right to withhold it.

          2. “Only the Senate and House together have the right to use or withhold that key.”

            Obviously not true.
            It takes both to say yes, but only one to say no. If the House passes a measure, but the Senate doesn’t also pass it, that’s a no. Just ask Mitch. Ditto if it goes the other way, and the Senate passes something, but the House doesn’t.

        2. Where did Obama get money for the proactive DACA benefits? Or that risk corridor money that Congress actually sued over?

          Both those cases went in favor of the Executive.

          If Obama can use pen and paper to spend as he wishes, surely President Trump can too.

          1. Sam,

            Your facts are wrong unless you have a cite to a case on either of those that matches your summary.

            I am aware of no lawsuit by Congress (either or both Houses) that the Obama administration spent money on DACA that was not authorized.

            The House of Representatives sued over ACA and standing was granted and the District Court held: “Paying out reimbursement without an appropriation [from Congress] violates the Constitution. Congress authorized reduced cost-sharing but did not appropriate monies for it, in the fiscal year 2014 budget or since. Congress is the only source for such an appropriation, and no public money can be spent without one.”

            That ruling was appealed, but later the parties settled. How did that go in favor of the Executive? It went against the Executive and upheld the principle that the Executive cannot spend money that hasn’t been appropriated by Congress and one House can sue over it.

            It looks like you are just making things up.

            1. I didn’t claim there was a lawsuit from Congress. Obama did spend money not appropriated and when DACA hit the Supreme Court, it managed to stay in place.

              President Trump’s admin settled the ACA lawsuit with the House, but until then Obama kept spending without appropriations. No one could stop him. Further, when a Risk Corridor lawsuit finally hit SCOTUS this year, they ruled that they had to pay the billions in monies. Congressional appropriations be damned.

              It’s really weird, until President Trump, no prior Congress or no prior President could bind a future Congress or a future President, but here we are.

              Trump Law!

              1. I didn’t claim there was a lawsuit from Congress.

                So that’s just your fevered imaginings and is irrelevant to the current matter. The fact that a different aspect of DACA (rescission) went before the SC and the Trump admin lost is irrelevant to this convo.

                No one could stop him.

                No one did stop the contested spending is different from no one could. The District Court declined to issue an injunction and it is not clear the admin would have lost the appeal. As you say, the Trump admin settled.

                Further, when a Risk Corridor lawsuit finally hit SCOTUS this year, they ruled that they had to pay the billions in monies. Congressional appropriations be damned.

                And this shows how you misunderstand this entire matter, including the House v. Burwell turned House v. Azar case. Congress passed a law requiring payments to insurers participating in this program. Congress later rescinded the appropriations but without rescinding the contractual obligation to pay. Congress can’t create a contract, obtain performance, but then decline to pay by not appropriating the money, said an 8-1 Court. So, this also was not a case where Congress declined to spend but the admin went ahead and did anyway. This is a case where Congress passed a law creating governmental obligations and then tried to not pay. Nope.

                It’s really weird, until President Trump, no prior Congress or no prior President could bind a future Congress or a future President, but here we are.

                You are just misreading the case and the law. The Congress could have repealed the contract, they just didn’t. If they wanted to end the program, they could end the program. But they basically tried to have their contract and not pay for it. Again, nope. Either repeal it or don’t. One more instance of Republican incompetence that they then blame on someone else.

                How about some personal and institutional accountability? GOP preaches it for everyone but themselves.

              2. “President Trump’s admin settled the ACA lawsuit with the House, but until then Obama kept spending without appropriations.”

                How, exactly?
                i mean, if Trump was President, how was Obama “spending without appropriations”?

                This fight is silly. Reagan resolved this exact problem. He wanted to spend money and Congress didn’t provide any. So he sold weapons to terrorists to raise funds. Obviously, Trump should have gotten a commitment from Iran to build his wall in exchange for letting them build atomic weapons, instead of just giving that away for free.

                1. At corrupt, immoral, and illegal as that was, you do have a point that at least Reagan got something for the US out of the deal, while Trump ruined US credibility for nothing.

                  Who would deal with a person, company, or country who has a reputation for reneging on deals after they are signed, sealed, and partially delivered?

                  Deutsche Bank, I guess, but they aren’t really a nuclear threat or major potential trading partner and it isn’t entirely clear what they require as collateral. (It is probably both your balls in Putin’s possession if the Trump deal is standard terms.)

    2. “When as here Congress is not willing to use its own powers to enforce its will, that is Congress’ prerogative.”

      One of it’s own powers is to head down to the courthouse and file paperwork. the Courts are there to resolve cases and controversies.

  3. In the Philadelphia case, Mr. Porter represented himself and understandably did not raise the correct claims.

    While the Supreme Court has held, I believe incorrectly, thr police can arrest a citizen for a civil infraction, no court has held that they can arrest for violating an unwritten rule.

    In my view, if states want to avoid the costs of the additional safeguards that adhere to criminal charges by using civil allegations and procedures, they must also forego the benefits of criminal procedures like forcible arrests upon suspicion of violation.

    But even so, to use arrest to enforce a law, the law must be written and a citizen must have notice of it. Because Porter had no notice of the existence of the rule he allegedly violated, he could not be forcibly arrested for a violation of it.

  4. As far as the Lagordiloca case,

    1. Notwithstanding your use of quotation marks, the statute at issue is called “misuse of official information”, not “misuse of public information”—presumably because it is expressly designed to cover information that is not public.

    2. I’m not following your argument that the statute is “blatantly unconstitutional”. The single case that you cite definitely doesn’t hold that, and doesn’t even particularly support the argument. The claim in the brief that the case is “controlling precedent” that held that the statute “is patently unconstitutional because it criminalizes routine newsgathering” is clearly false, and probably should subject Mr. Tsitsuashvili to sanctions.

    3. Indeed, I’m dubious that the statute is facially unconstitutional at all, since it seems to criminalize only soliciting other people to engage in conduct that is itself illegal. Maybe there are some circumstances (potentially even this one) where an as-applied challenge would have some force. But I have trouble seeing how you’d muster an argument against its facial validity based on current first amendment doctrine.

    1. You’re dubious that a statute that makes it a felony to ask a government employee a question (or to receive information from a government employee even without asking) if the answer is something that the employee is not authorized to provide is unconstitutional? A much more narrowly tailored statute — such as one banning paying or coercing a government employee into providing such information — might pass muster, but simply asking?

      1. Can you point me to some authority saying that it’s unconstitutional to criminalize asking another person to commit a crime with an intent to benefit yourself or harm someone else? You may also want to drop a note to the IJ attorney, since he certainly didn’t cite to any.

        (I agree that the “receive” theory is more vulnerable, but that doesn’t appear to be the basis of the charge here. I also think there’s a substantial argument that, as described, the conduct here doesn’t satisfy the statute—but that’s a very different argument than the one that’s being advanced here.)

        1. “Can you point me to some authority saying that it’s unconstitutional to criminalize asking another person to commit a crime with an intent to benefit yourself or harm someone else?”

          The Constitution does say “Congress shall make no law abridging the freedom of speech”. The fact that various courts have interpreted that to mean “OF COURSE Congress can make some laws abridging freedom of speech” doesn’t change the actual words in the document itself.

          1. Then since the law at issue wasn’t enacted by Congress. I take it you agree it has no first amendment implications.

            (I continue to welcome a response from David Nieporent or anyone else interested in/capable of substantive legal analysis rather than fatuous attempts at pedantry.)

            1. “Then since the law at issue wasn’t enacted by Congress. I take it you agree it has no first amendment implications.”

              Look again at the exact question you actually asked and I quoted, and point to where it says anything about “the law at issue”.

              Then go ahead and continue to mumble about pedantry.

  5. Regarding the Florida felons and the linked essay from Anthony Sanders at the Institute of Justice:

    Mr. Sanders’ outrage is directed at the wrong institutions. He should blame the Florida legislature and the low-level administrators of the criminal justice system’s records-keeping systems.

    If those record-keeping systems are broken — and I don’t dispute that they are; Mr. Sanders’ IJ argument is persuasive about that — that should be the subject of litigation against the State of Florida brought directly for that purpose. It sounds like the plaintiffs would likely win, which would in turn moot the problem of enforcing the state constitutional amendment and enabling legislation as written.

    And the Florida legislature can certainly be blamed, too, for commanding the impracticable, perhaps the impossible.

    But I am entirely unpersuaded — unmoved, in fact — with the argument that the concept of equal protection under the laws and in particular, rational relationship review thereunder, is fundamentally flawed, or even flawed as applied in this case. It is not the job of the judiciary, believe it or not, to attempt to right every wrong, or to correct every mistake by the legislative branch, or to micromanage the cash registers at county clerks’ offices.

    1. “It is not the job of the judiciary, believe it or not, to attempt to right every wrong”

      Just the ones placed directly before them.

      1. No, sir. Not even all of those. Not by a long ways. Because not all wrongs are violations of court-enforceable rights.

        This is exactly the kind of fuzzy thinking that creates problems, Mr. Pollock.

  6. I don’t understand how this Florida system works. Suppose an ex-felon says, “I have paid all my fines and fees. I want to vote.” If the record keeping is that spotty, who can disprove the claim?

    Or is the burden of proof on the felon? Is he supposed to produce a document signed by an official saying that he is paid up? If so, what does Florida law say about who is authorized to issue such documents?

    Or is it up to the Commissioner of Elections in each county to make up rules as they go along?

    1. The rule is, if you seem likely to vote for someone who is not a Republican, then you can’t vote until further notice.

      1. That’s ridiculous, and not funny.

        1. You’re right that it’s not funny, but it’s accurate enough.

  7. Technology company rescinds job offers after background checks turn up past felony convictions. Two would-have-been employees sue, claiming the company’s policy has a disparate impact on African Americans.

    “I have a dream that my four little children will one day live in a nation where they will not be judged by the content of their character but by the color of their skin.”

    1. You missed the point.

      Which was: The criminal justice system has been unfairly turned against black people. Extending that injustice into private employment is arguably against public policy.

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