Short Circuit: A Roundup of Recent Federal Court Decisions

Butterflies at the border, bullets in the back, banknotes for the blind, and Bontemps' bulge.

|The Volokh Conspiracy |

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

This week, in Torres v. Madrid, the Supreme Court considered whether a woman who was shot in the back by plain-clothed police officers may bring a Fourth Amendment challenge to the shooting, or if the Constitution does not apply merely because she was able to drive away immediately after being shot. If the Supreme Court declares that Roxanne Torres wasn't "seized" by the officers' barrage of gunfire, then she will be denied her day in court to determine whether the officers' violence was reasonable—and so will any other individual who is not immediately incapacitated or killed by police violence. As IJ and other civil rights groups noted in a joint amicus brief, a ruling against Torres would make police effectively immune in a broad range of excessive force cases. Over at Forbes.com, IJ's Nick Sibilla has more.

  • Butterflies know no borders, but the feds plan to build a border wall through a butterfly sanctuary. Federal agents station themselves at the property, declare it off limits to employees and visitors alike, and begin widening roadways and cutting trees. D.C. Circuit: Butterflies may go where they want, but governments need to provide due process before they take over private property.
  • American banknotes are unusual in that they are all the same size and texture and nearly identical in color—all of which presents a problem to people who are blind. Thankfully, in 2008, a federal judge entered an injunction requiring the Treasury Department to incorporate appropriate changes to paper currency no later than the next redesign of each denomination. Treasury: Sounds good, we'll get back to you in the 2030s. D.C. Circuit: Which is fine.
  • Pennsylvania prohibits those who have been committed to a mental institution from possessing firearms. Two such persons sue. Allegation: The ban strips us of our Second Amendment rights without due process. Third Circuit: No dice. Once a physician has determined that someone is a danger to himself or others—making him eligible for commitment—that someone "has joined the class of those historically without Second Amendment rights." Judge Fisher (concurring in the judgment): I wouldn't decide whether committees have no Second Amendment rights, because even if they retain Second Amendment rights, Pennsylvania has supplied enough process to deprive them of those rights.
  • Inmate accuses South Carolina guard of sexual misconduct. The next day, the another guard places the inmate in administrative segregation. Coincidence? Fourth Circuit: Unlike some other circuits, we place the burden on the guard to defeat liability by proving she would have made the same decision even absent a retaliatory motive. But we can't say at summary judgment whether the guard made the necessary showing, so this case is remanded for trial.
  • In July, the governor of Texas issued a proclamation providing voters an extra six days for early in-person voting and an extra 40 days to hand-deliver their absentee ballots (in addition to the option of mailing in ballots). Some counties sought to add multiple delivery locations for the ballots, but the governor stepped in the way. And that does not restrict voting options in violation of the right to vote, says the Fifth Circuit. Judge Ho, "grudgingly" concurring: The governor should've left rewriting election laws to the legislature rather than doing it himself.
  • In July, the governor of Texas issued an executive order mandating masks in public areas but carving out an exemption for people who are voting or assisting with the voting process. Plaintiffs challenge this exemption (among other voting-related procedures). Fifth Circuit: For most of their claims, the plaintiffs sued the wrong defendants because the governor and the secretary of state have no connection to enforcing the executive order or the other challenged laws. But just maybe, the district court could invalidate the mask mandate's exemption for voting. On that point, the case may proceed.
  • Inmates at Navasota, Tex. geriatric prison allege that the prison's COVID response is legally and constitutionally inadequate. The district court issued a preliminary injunction in the spring imposing a detailed protocol on prison officials. Fifth Circuit (April): The injunction is stayed. Fifth Circuit (June): The injunction is vacated. Apparently undeterred after an 18-day trial, the district court issues a permanent injunction requiring prison officials to follow specific procedures to limit the spread of the disease. The list differs in some ways from the original; among other things, it requires weekly testing with results within 48 hours. Fifth Circuit (October): The injunction is stayed.
  • Second-trimester abortions are most commonly conducted via the dilation and evacuation procedure. The doctor first dilates the cervix and then uses suction or forceps to remove the fetus. The body typically separates during the removal, as it is larger than the cervical opening, resulting in "fetal demise." Texas passes a law requiring doctors to first "ensure fetal demise" in utero. The Fifth Circuit rejects the new law while (over a "forthcoming" dissenting opinion) detailing recent SCOTUS abortion caselaw. Splitting from the Eighth Circuit, The court says that Justice Roberts' concurrence last term doesn't alter the standard that courts apply to abortion restrictions.
  • Evidence room manager discovers that a Saginaw County, Mich. officer is misusing forfeited funds and improperly keeping them "off the books." When he reports his concerns up the chain, he is reprimanded and demoted. Sixth Circuit: Since the evidence room manager was speaking within the scope of his public employment, he cannot pursue a First Amendment claim.
  • Tennessee allows some voters to vote absentee by mail. To do so, a voter must submit a formal request to county election officials between seven and 90 days before the election; the request must contain a signature, which officials compare to the one on file to ensure they match. Completed absentee ballots must be accompanied by a signed affidavit, and officials once again compare signatures. Does the second signature verification infringe the right to vote? Sixth Circuit: The plaintiffs failed to show that they will be harmed by the law in the upcoming election, so we don't have to answer that. Dissent: "I will not be a party to this passive sanctioning of disenfranchisement."
  • Indiana counts an absentee ballot only if it is received by noon on Election Day. District court: Given the pandemic, that deadline must be extended by 10 days. Seventh Circuit: "[A]s long as the state allows voting in person, there is no constitutional right to vote by mail." The district court's injunction is summarily reversed.
  • Uncle calls Warren, Ark. police on nephew to report theft of gun, bullets, prescription medication; he tells police to expect a fight. Police stop the nephew and pat him down, discerning no contraband. (The officer missed a loaded magazine and some loose bullets.) But as they try to handcuff him, he takes off. An officer shoots him in the back almost immediately. Eighth Circuit: The nephew can't sue. "[I]t was not clearly established at the time of the shooting that a pat down that removes nothing from a suspect eliminates an officer's probable cause that the suspect poses a threat of serious physical harm."
  • Members of the Navajo Nation, residing in Apache County, Ariz., challenge the state's deadline for receipt of mail-in ballots (7:00 p.m. on Election Day). District court: No preliminary injunction because the plaintiffs' Voting Rights Act claim is unlikely to carry the day. Ninth Circuit: Actually, the plaintiffs lack standing because they failed to allege that they intend to vote in the 2020 election or to vote by mail.
  • Simi Valley, Calif.: No mobile billboards! Unless they're on an authorized emergency, construction, repair, or maintenance vehicle. Ninth Circuit: We struggle to identify a content-neutral justification for the authorized vehicle carve-out, and the city offers none. Ultimately, it appears officials prefer these "authorized" speakers because they prefer these speakers' message.
  • As part of their crowd control efforts, law enforcement officers in Portland, Ore. have recently employed tactics that force reporters and legal observers from the streets. Plaintiffs: Which violates our First and Fourth Amendment rights. District court: Yeah, knock that off. Ninth Circuit (over a dissent): No need for an emergency stay of the district court's preliminary injunction. Officers may not "suppress legitimate First Amendment conduct as a prophylactic measure."
  • If you spot a fellow with a "very large and obvious bulge," is it reasonable to suspect he's packing? Two-thirds of this Ninth Circuit panel say yes.
  • When Congress declined to appropriate money to build the border wall, the Trump Administration declared an emergency and instructed the Department of Defense to construct the wall itself using other funds. Sierra Club: This particular national emergency does not meet the statutory criteria required for the DOD to undertake construction projects. Ninth Circuit (over a dissent): Right you are. Injunction affirmed.
  • The U.S. Supreme Court's 1994 decision in Heck v. Humphrey bars convicted criminals from bringing § 1983 suits when a victory would necessarily imply the invalidity of their convictions. But, explains the Eleventh Circuit, the two rulings must "logically contradict" one another. Thus, a lawsuit against a Miami police officer—who is alleged to have unlawfully shot the now-convicted driver of a stolen car before the driver attempted to elude police—may proceed.
  • And in en banc news, the D.C. Circuit will revisit its decision dismissing the request by the House of Representatives for the court to enforce congressional subpoenas against former White House Counsel Don McGahn. So Don McGahn will head back to court, but not until February 23.
  • And in more en banc news, the Ninth Circuit will not reconsider an earlier panel decision upholding a San Francisco ordinance that prohibits the owners of tenancy-in-common properties from converting into condominium properties unless the owners agree to offer any existing tenants lifetime leases. A whopping nine judges would have granted rehearing.
  • And in further en banc news, the Tenth Circuit will reconsider its decision that local governments have standing to challenge Colorado's Taxpayer Bill of Rights, which requires any tax increases to be approved by the voters, as a violation of Colorado's enabling act by which Congress guaranteed "a republican form of government."

Last month, North Wilkesboro, N.C. officials barred a 33-year-old homeless shelter from moving into a larger new space. Though the proposed location is, as required, far from residences and in an area zoned business-industrial, officials denied the shelter a permit—in part because it has a public sidewalk out front and sits along a busy road. But the zoning code requires shelters to be near sidewalks and roads. Per the chair of the town's Board of Adjustment: "I think the issue here is that it meets the zoning requirements, but that doesn't mean it belongs here." This month, IJ and the shelter sued the town in federal court. Read all about it in the Winston-Salem Journal. The complaint can be found here.

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  1. Seems to me, that if the zoning requirements were designed to keep homeless shelters out of neighborhoods where they “don’t belong”, you don’t get to come back later and revise those requirements once you realize your requirements weren’t tight enough when a proposed homeless shelter meets those requirements.

  2. “If you spot a fellow with a “very large and obvious bulge,” is it reasonable to suspect he’s packing? Two-thirds of this Ninth Circuit panel say yes.”

    Maybe he was just glad to see you?

    1. If the case had involved a former New England mobster it would have been Whitey Bulger.

      You could refer to the back and forth between the majority and dissent as …. the Battle of the Bulge.

  3. One of the cop shootings in N.C. involved a man with a gun in his car and what the cop believed was a joint. I never actually read anything definitively that it was in fact a joint and not a self rolled cigarette. So I wonder if a cop can assume something that looks like a self rolled cigarette is actually a joint??

  4. So the Fifth Circuit, with a panel of three Trump judges, said it was just fine to make it harder for city-dwellers to vote.

    The GOP war on voting continues.

    1. Cherry picker. Show ALL other such decisions similarly and you might get some credibility.

      1. What do you want me to show?

        Republican judges making it hard to vote – not recognizing that things that weren’t a burden become one due to the pandemic, or just outright ruling for Trump?

        SCOTUS just made sure the Census would be biased.

        1. If you can’t win fairly, you have to make sure that any unfairness works in your favor.

        2. It must be weird going through life always trying to only see one half the world, and monocles are so out of fashion, what with the orphans and all. Even pirate eye patches are yesterday’s Hallowe’en costume.

          1. Yeah, like you’re some objective observer.

            Now Florida is doing what it can to block voting.

            1. How do you feel about California’s recent efforts to Block GOP voters from voting?

              1. He wouldn’t tell you even if his other eye read your comment.

              2. Your outrage is dumb; party-specific ballot boxes are illegal for a damn good reason, AL.

                1. What? They’re just ballot harvesting. Using a 3rd party to help collect ballots that will then be dropped off at the voting booth. Completely legal in California.

                  Why are you promoting voter suppression? That’s what California’s AG is doing.

                  1. That’s not what ballot harvesting looks like, and you know that. Your attempt to conflate is really pretty sad. Tribalism over integrity, eh?

                    1. Really? What’s the law say? Does it specifically not allow for a ballot harvester to put ballots in a box? (Answer, no). They voter is just designating the holder of the box to return the ballot for them. Completely legal.

                      Here’s what I say. By not allowing good Americans to set out boxes to help collect and deliver ballots, making it easier for people to vote, you’re promoting voter suppression.

                    2. So the real question is Sarcastro….

                      Why are you trying to make it harder for people to vote?

                    3. You appear to be arguing that anyone who wants to maximize the availability of voting must be in favor of ballot boxes in control of one party without any of the required security measures.

                      I’m sure this argument played out better in your head, but everyone else can figure out the distinction here.

                    4. Not one party Sarcastro. Any party can do this. Democrats were doing it all the time in 2016, just instead of a box they were putting it in backpacks and bags without any security measures.

                    5. Ah. So you have a conspiracy theory about Democratic voter fraud, so why not allow some GOP voter fraud?

                      Jesus, man, you’ve given up on democracy.

                  2. “What? They’re just ballot harvesting. Using a 3rd party to help collect ballots that will then be dropped off at the voting booth. Completely legal in California.”

                    Completely legal in California if you follow the rules, which (surprise!) they aren’t.

                    1. They perfectly well are following the rules. Nothing wrong with having a box inside a gun store that people can drop their ballots off at.

                    2. “They perfectly well are following the rules. ”

                      Of course they are. Except when they aren’t.

                    3. AL, the GOP plans to collect the box; they are not including any of the required security protocols.
                      I don’t know where you’re getting your facts, but wherever it is seems to be giving you only part of the story in order to deceive you. And you – you are at best not bothering to check, or at worst just fine with passing along lies like ‘they’re perfectly well are following the rules.’

                    4. Have you actually read the ballot harvestor law in California Sarcastro? I have.

                      There are ZERO security provisions for Ballot harvesters except that you can’t be paid for it.

                      You just designate a person, give them the ballot, and they deliver it. You can designate any man, woman, illegal immigrant, Russian spy, wanted felon, anyone. Anything they do with it in the meantime…put it in a bag, box, backpack, all completely fine, so long as they deliver it.

                      If you can find any actual piece of the law that makes a ballot harvester putting a ballot in a box or other unsecured container as illegal, please point it out.

                    5. Now you’re full-on lying https://www.sos.ca.gov/administration/regulations/current-regulations/elections/vote-mail-ballot-drop-boxes-and-drop-locations

                      -Unauthorized ballot drop boxes are illegal. Drop-off locations shall be determined by the county elections official. In determining locations, the elections official shall, at a minimum, consider concentrations of population, geographic areas, voter convenience, proximity to public transportation, community-based locations, security, and available funding.

                      -many of these drop boxes bear signs claiming that they are “official,” and are located at local political party offices and churches, as well as at candidates’ headquarters

                      -in some instances, the boxes were simply cardboard containers without locks. An unstaffed drop box placed outdoors shall be securely fastened in a manner as to prevent moving or tampering, for example, fastening the drop box to concrete or an immovable object.

                    6. “You just designate a person, give them the ballot, and they deliver it.”

                      And in California, cardboard boxes are people.

    2. District courts want to change voting laws on their own and are consistently getting reversed.

      We need a better class of district judges.

    3. How far is it to their mailbox? If it’s too hard to get to that, offices scattered around the county won’t help. Think of every mailbox as an official drop box.

      Or maybe you’re worried about mail fraud now.

      1. More worried about DeJoy deliberately screwing up the Post Office.

      2. “How far is it to their mailbox? If it’s too hard to get to that, offices scattered around the county won’t help. Think of every mailbox as an official drop box.
        Or maybe you’re worried about mail fraud now.”

        Or maybe the chief executive of the country declared opposition to mail-in voting and there’s reason to believe that the postal service might not be politically neutral.

        1. Except the Democratic official line is that the post office is to be trusted. Are you calling the Democratic leadership liars?

          1. I didn’t know there was a “Democratic official line” on this topic.

            Where can I find it?

            1. Any campaign speech.

          2. “Except the Democratic official line is that the post office is to be trusted. Are you calling the Democratic leadership liars?”

            I’m going to go ahead, and call YOU a liar.

      3. “How far is it to their mailbox?”

        You don’t even have to do that — it’s an old reg but letter carriers will also accept outgoing mail if asked to.

    4. “So the Fifth Circuit, with a panel of three Trump judges, said it was just fine to make it harder for city-dwellers to vote. The GOP war on voting continues.”

      Relax, bernard.

      Justice will be served to these clingers, good and hard, beginning early next year.

      In particular, and for example, voter suppression will be a crime by June.

  5. I think that the bulge is actually reasonable evidence for concealed carrying. The unreasonable part is characterizing concealed carry in California as “presumptively unlawful”. It requires a permit. But a license is required for driving. The logic here would suggest pulling everyone over who drives a car. The previous precedent that compels this is startlingly bad.

    1. If you unconstitutionally deny a permit to nearly everyone, it’s not a better presumption.

  6. re: Eighth Circuit – How about the fact that the suspect was running away and that the police shot him in the back as evidence that he posed no threat of serious physical harm?

    Qualified immunity is a failed experiment that is long past time to end.

    1. How about reading the first three sentences of the opinion before talking about how dumb it is?

      Officer Robbie Ashcraft tried to arrest Davdrin Goffin for burglary and stealing handguns, bullets, and prescription pain medication. Prior to the arrest, multiple witnesses told her that Goffin was armed, possibly intoxicated, and dangerous. When Goffin broke free from arrest, fled toward a group of bystanders, and moved as though he was reaching into his waistband, she shot him once in the back.

      1. None of which matters because their personal experience during the search superseded the witness reports and that same search had already demonstrated that he was unarmed.

        1. That’s a different and more interesting point—though in light of the stuff they unquestionably didn’t find during the pat down it’s a little hard for me to conclude that it had been “demonstrated that he was unarmed.”

          At any rate, I was more responding to your incredulity that the fact the guy was shot in the back wasn’t itself conclusive evidence that the shooting was unjustified.

      2. People running away are known for their expert marksmanship. Because of this, the running away alone is enough to make someone fear for their life or the lives of others.

      3. ” moved as though he was reaching into his waistband,”

        “What is ‘things that cops fabricate after they shoot unarmed people?’ Alex.”

        1. If the plaintiff wanted to present that argument, he probably should have disputed the claim in his opposition to summary judgment.

          1. claiming that cops lied doesn’t have a long history of success in court, even when backed by clear video evidence showing that they lied.

  7. Inmate accuses South Carolina guard of sexual misconduct. The next day, the guard places the inmate in administrative segregation.

    According to the opinion, it was a different guard.

    1. True, but not really relevant to the case.

  8. Ok…this decision from the Ninth, I don’t get (the Portland case). I thought judges had to consider the implementability of their decisions. IMO, the Ninth has not.

    Officers may not “suppress legitimate First Amendment conduct as a prophylactic measure.”

    How on earth is an LEO, in the middle of violent riots, supposed to act in this instance? We have had 4 months of daily riots. At what point does an LEO have the authority to act decisively to put down a riot? This decision is going to make a real mess.

  9. ” At what point does an LEO have the authority to act decisively to put down a riot?”

    When he’s standing in front of an actual riot.

  10. If the logic of the 9th Circuit construction sign case is valid, and banning billboards but allowing road construction related signs is unconstitutional viewpoint discrimination, then I don’t see how allowing traffic lights, street sogns, lane markers, and other mesns by which government communicates messages to motorists isn’t also unconstitutional viewpoint discrimination.

    Assuming the opinion is limited to communications involving flashing lights, If I got a ticket for running a flashing red light, I would argue that the light wasn’t lawfully there as permitting its presence represented unconstitutional viewpoint discrimination in violation of the First Amendment, hence I cannot be guilty of an offense dependent on its presence. If the state gets to use flashing lights to communicate its message to motorists, private parties have to be able to use flashing lights to communicate theirs.

    Obviously I disagree with the logic. Construction signs, like traffic lights and other safety signs to motorists, are reasonably tailored to safety, address a compelling interest, and survive strict scrutiny. A state can distinguish between traffic signs and private billboards.

  11. “Assuming the opinion is limited to communications involving flashing lights, If I got a ticket for running a flashing red light, I would argue that the light wasn’t lawfully there as permitting its presence represented unconstitutional viewpoint discrimination in violation of the First Amendment, hence I cannot be guilty of an offense dependent on its presence. If the state gets to use flashing lights to communicate its message to motorists, private parties have to be able to use flashing lights to communicate theirs.”

    But the guy you ran over is still dead, so your sentence stands.

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