Short Circuit: A roundup of recent federal court decisions

A game of chicken, a chicken raid, and a family unfriendly food truck.

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

As of last week, Oregon no longer prohibits drivers from pumping their own gas (in counties with 40,000 or fewer residents), a change that some bemoan -- to the bemusement of a great many others who have mastered the skill. Over at Forbes.com, IJ Legislative Analyst Nick Sibilla ruminates on why such silly regulations persist. Click here to read.

• New York officials deem food truck, the Wandering Dago (image here), family unfriendly, deny permit for summer-long Albany event. Truck owners: The name is irreverent; it weakens the derogatory force of the slur. Second Circuit: Officials' violated the owners' free speech and equal protection rights under both the federal and state constitutions.
• Motorcyclists play drunken game of chicken, collide. Insurer: We'll not cover plaintiff's medical expenses; his plan doesn't cover injuries that result from the "illegal use of alcohol." Sixth Circuit: Pay the man. His drinking was legal; it was his driving that was illegal. Partial dissent: That doesn't seem right, but the insurer should have written a clearer contract.
• While corresponding with the lawyer for a nonprofit, the City Attorney for Grand Rapids, Mich. discovers that the nonprofit employs the mother of a developmentally disabled rape victim who had previously sued the city. City Attorney proceeds to call the victim a "crack and heroin whore" and warns lawyer away from dealing with nonprofit. Word gets back to the victim's parents, who sue. Sixth Circuit (over a dissent): Qualified immunity.
• Ohio man throws his now ex-wife against a wall and knocks her down. He spends one day in jail, has not been convicted of a crime in the 20 years since. Does the federal ban on domestic violence misdemeanants owning firearms unconstitutionally burden his Second Amendment rights? Sixth Circuit: No. Dissent: None of the gov't's evidence shows that folks who haven't reoffended for decades are especially dangerous, and you need some evidence if you are going to take away a fundamental right.
• Allegation: Presque Isle County, Mich. prosecutor decries state narcotics officers' rogue interrogation tactics and witness intimidation, among other things. The officers initiate investigation into the prosecutor's heavy use of pain medication, resulting in charge (that is promptly dismissed). Can the prosecutor sue the officers for retaliating against him, arresting him without probable cause? Sixth Circuit (over a dissent): No.
• Claim: Indiana law requiring separation of beer wholesalers from liquor wholesalers is preempted by federal motor carrier law, which restricts state restrictions on carriers' services. Seventh Circuit: Plaintiff need not violate the law in order to challenge it; the threat of prosecution suffices. Proceed to the merits.
• Personal correspondence sent to Cape Girardeau County, Mo. jail must be on postcards, and inmates can only have 10 postcards in their cell at a time. Mother of inmate: When I send multiple cards, they arrive out of order, making them confusing to read, especially if there are more than 10. Moreover, there's no evidence banning letters has cut down on contraband entering the jail. Eighth Circuit: No constitutional problems here.
• Occupant of car that crashed into St. Paul, Minn. house (during gunfight with occupants of another vehicle) flees the scene on foot, leaves his cell phone behind. Did he retain a reasonable expectation of privacy in the phone? The Eighth Circuit says no.
• Teenager murders two young women in Long Beach, Calif. in 1981, is sentenced to death. But, says two-thirds of a Ninth Circuit panel, had the jury heard about his tortured childhood, it's likely at least one would not have voted to convict him of first degree murder. Habeas granted. (Notably, one of the judges in the majority died before this decision was released but concurred in the opinion before his death.)
• In California, retailers may charge customers who pay by credit card more than those who pay by cash, but they can only legally describe the price difference as a "cash discount" calling it a "credit card surcharge" is illegal. Ninth Circuit: The government has pointed to no evidence that this restriction on commercial speech is necessary. It violates the First Amendment.
• An Idaho law criminalizing surreptitious recordings in animal production facilities violates the First Amendment, says the Ninth Circuit, as does (over partial dissent) a ban on employing ruses to gain access to such a facility. But barring activists from employing ruses to gain employment at such a facility is permissible.
• Allegation: Unpaid volunteers on New Mexico animal cruelty task force accompany law enforcement on raid of suspected cockfighting operation. The volunteers make false, "absurd" statements to law enforcement concerning the legality of steroids that plaintiffs administered to their poultry; officers then use those statements to secure search warrants. Hundreds of birds are seized and destroyed, but no charges are ever filed. Tenth Circuit: Qualified immunity for the volunteers. It's not clearly established that private citizens who make recklessly false statements to law enforcement are liable for any resulting constitutional violations.
• Protesters protest the travel ban in Denver airport without first obtaining permit, which must be sought at least seven days before engaging in speech-related activity. No arrests made, but there could have been. District court: Several of the airport's speech restrictions may be unconstitutional; among other things, there isn't a formal process to expedite a permit request and a ban on signs larger than 1 foot by 1 foot is not reasonable. Tenth Circuit: In fact, plaintiffs are unlikely to prevail, so the preliminary injunction is reversed.
• USA Swimming arbitrarily and capriciously blacklisted Loudoun County, Va. swim coach after allegations of sexual relations with a minor, says arbitrator; reinstate him and pay his legal fees -- but no need to pay damages. Tenth Circuit: Can't seek damages here.
• In 1973, Chilean officer murders folk singer (the "Bob Dylan of South America") after three days of torture in Santiago soccer stadium. In 1989, the officer moves to the U.S., which has declined to extradite him. In 2016, a jury orders the officer to pay the singer's family $28 mil for violations of the Torture Victim Protection Act. Eleventh Circuit: But the family's claims under the Alien Tort Statute were properly dismissed, as the relevant conduct did not take place on U.S. soil.

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Comments

[Intelligent Mr Toad]

RE: "An Idaho law criminalizing surreptitious recordings in animal production facilities violates the First Amendment, says the Ninth Circuit, as does (over partial dissent) a ban on employing ruses to gain access to such a facility. But barring activists from employing ruses to gain employment at such a facility is permissible."

Doesn't the law against criminal trespass already cover this?

[Rossami]

No because the activist presumably has permission from the owner to enter the facility. The fact that the permission was granted on the basis of fraud or false pretexts is irrelevant to the criminal trespass definition.

Surreptitious recording would, however, likely violate the wire-tapping laws at least in those states that require two-party consent. Within the Ninth Circuit, that means surreptitious recording is already illegal (regardless of whether a ruse was used) in California, Nevada and Washington but not Idaho.

[tkamenick]

"No because the activist presumably has permission from the owner to enter the facility. The fact that the permission was granted on the basis of fraud or false pretexts is irrelevant to the criminal trespass definition."

Hmm... but all kinds of torts have or can have a fraudulent basis, including battery (tricking somebody into having sex with you) and trespass to personal property. If having those torts isn't a constitutional problem, then why isn't something that's effectively the equivalent of trespass to real property by fraudulent means? Isn't that what the ban on "employing ruses to gain access to such a facility" is?

[Walter Tuvell]

Here's another "Short Circuit," worthy of consideration:

Q: Is a Federal District/Appellate Court required to follow (Supreme Court) procedural/rule precedent, with respect to Summary Judgment? In particular, must Federal Courts "consider/credit" nonmovant's story above-and-beyond movant's story (as is promulgated/required by EACH-AND-EVERY judicial opinion ever published on the subject)?

A: First Circuit: HELL NO! Courts NEED NOT EVEN CONSIDER/READ/"HEAR" nonmovant(/plaintiff)'s Statement of Facts! http://JudicialMisconduct.US/C.....smokinggun (and environs).

Anyone care to comments, please?

[nonzenze]

Yes, anyone that represents themselves in court has a fool for a client.

[Walter Tuvell]

Except, "nonzenze," that the plaintiff in Tuvell v. IBM (me) did NOT represent himself! (At least, not until the highly paid lawyers lost first.)

Proving that "anyone who comments without reading what they're commenting upon is a fool."

[nonzenze]

I did read up to the point where you dismissed your layers and submitted a cert petition on your own. A fool for an appellate client then.

[Walter Tuvell]

No, "nonzenze," you're still not getting it

[1] My 2 lawyers failed at District and at Appellate levels, so I would have been a "fool" to continue with them.

[2] They suggested "doing the same thing (i.e., making the same arguments again)" at higher levels (en banc, Sup.Ct.), and 'hoping' the judges would rule differently." But it's REQUIRED to argue ERRORS (and NOT "repeat") at those levels. So, I'd have been a fool to retain them further.

[3] When I suggested pointing out the ERRORS (which they ACKNOWLEDGED), they refused, because they feared Speaking Truth to Power (i.e., the courts would blacklist them). So, I've have been a fool to retain them.

[4] You're missing the point of rational discussion/argument altogether, which is to point out errors in my arguments. Truth is objective, it doesn't depend having a law degree. You haven't even tried.

Answer just ONE QUESTION:

By what authority/rule/whatever is a judge allowed to IGNORE the Plaintiff/Nonmovant's story/claims/SOF (Statement of Facts) at Summary Judgment? It is NOT LEGAL to do so, under any circumstances. Period. Yet that's exactly what my judge(s) did. For proof, simply look at the Smoking Gun and environs (citation below).

--- Walter Tuvell (PhD, Math, MIT & U.Chicago -- i.e., "not-a-crank")
--- http://JudicialMisconduct.US (esp., .../CaseStudies/WETvIBM#smokinggun and environs)
*** Contact me, publicly or privately ([e-mail]). "Ask Me Anything." ***

[David Nieporent]

[3] When I suggested pointing out the ERRORS (which they ACKNOWLEDGED), they refused, because they feared Speaking Truth to Power (i.e., the courts would blacklist them). So, I've have been a fool to retain them.

Yeah, no lawyer has ever been afraid to file an appeal because of the worry about courts "blacklisting" them -- whatever that even means. I understand you have convinced yourself of the merits of your case, and therefore assume that only corruption can possibly explain why you lost.

(I do like how you edited the wikipedia entry on summary judgment to make it look like your description of the law was accurate, though.)

To be fair, your suit does provide a perfect case study for why the ADA ought to be repealed.

[MonitorsMost]

In regard to the crack and heroin whore one, I have a hard time buying that criticism of litigant, regardless of whether in an official or individual capacity, constitutes an adverse action.

[David Nieporent]

It's defamation, not merely criticism, at issue in the case.

[MonitorsMost]

Huh? It has nothing to do with defamation. It was a 42 USC 1983 claim that the prosecutor deprived the plaintiff of their First Amendment rights by bad mouthing their daughter. True, false, recklessly false, etc. would be irrelevant as to whether the comments were an "adverse action." The truth of the statements would at most be probative on whether it was done with the intent to chill plaintiff's speech. But I don't think you ever get there because I don't think the statements could amount to an adverse action.

Note that the opinion intentionally just jumps the liability issue and proceeds to qualified immunity. They did not answer the first step. I just think they should have because it was just as easy to dispense with the case by following the order of the considerations.

[David Nieporent]

True, false, recklessly false, etc. would be irrelevant as to whether the comments were an "adverse action."

You don't think tortiously injuring someone is an adverse action? How interesting.

The truth of the statements would at most be probative on whether it was done with the intent to chill plaintiff's speech.

But that's essentially the definition of an adverse action. (Well, not the subjective intent, but the objective effect.)

[Vandalia]

After reading this feature on this blog, I have come to believe that "qualified immunity" is as great an evil as is "civil forfeiture."

Why should government employees be held to a far lesser standard than the average citizen? Working in an emergency department is just as crazy an environment as anything that law enforcement faces, but they are always second-guessed by malpractice attorneys and the federal government (EMTALA). Citizens can be convicted even when the law is muddled, so why should that be an excuse for eliminating civil liability?

[MonitorsMost]

You should read Thomas' recent concurrence in denial of cert in Ziglar v. Abbasi

As a practical matter, codification of Bivens is ten times higher on my priority list than qualified immunity. Qualified immunity sucks but really hurts excessive force cases more than other constitutional violations.

But explain to me why it makes sense that the Feds who are the most frequent,arbitrary and pernicious violators of constitutional rights of citizens is effectively immune from monetary liability? It makes zero sense whatsoever.

[Brett Bellmore]

And it's metastasizing. Not just police now, but the people they have provide false testimony so that they can secure warrants.

[jawlz]

Ah, Oregon. I love visiting the state, but the prohibitions against pumping your own gas, buying sudafed without a prescription, and buying liquor anywhere but ABC - er, sorry, OLCC - stores does rub me the wrong way.

I do rather like the facebook post the Hood River Sheriff's Office made about the change in the law: http://www.facebook.com/hrcso/posts/1762737294033657

(I'd post the quote itself, but it would take me over the rather paltry 1500 character limit we have for comments; also, no words over 50 characters allowed? That's going to make URLs somewhat difficult without going to something like tinyurl, which has the unfortunate effect of obscuring where a link actually takes you.)

[Brett Bellmore]

Give this a try, it explains how to hyperlink.

I never use or click tinyurls. Who knows what the result would be?

[jawlz]

Well, what do you know? I didn't even bother to try using straight html.

Let's see if this works...

[jawlz]

And it does work! Good news indeed.

[MonitorsMost]

On the car crashed into the house during a gunfight, I'm not thrilled with the "abandonment" line of reasoning. The facts are pretty sparse but I would hope some form of lawful impoundment under the community caretaking function and/or plain view exception would do the trick. I don't think you can argue with a straight face that Crumble intentionally relinquished title to his cell phone by leaving it in the crashed car. I'm sure he would testify that he didn't intend to leave it there.

[FlameCCT]

His initial comments to officers on site was he had nothing to do with the vehicle or its contents. So they collected evidence and then requested a warrant as the cell phone was linked to one of the occupants. It wasn't until later, after search warrant was issued and used, that he claimed he was involved and ran away from the gun fire.

[MonitorsMost]

And I do t think a blanket exculpatory no is sufficent to establish abandonment. Did they point the cell phone out to him? Regardless, is that an intentional relinquishment to title to his property?

Hypothetical. I am good friends with Prentiss Crumble. Know him well enough that I know his cell phone on sight. I hear my good friend has been arrested and the police are taking him to the scene of a car crash. I go and give him my support. From my vantage point I can see the cell phone sitting on the seat. I hear him tell the cops he doesn't own anything in the car. Prentiss has a nicer phone than me so when I hear this, I go up and grab the phone since it's abandoned property. Think I can do that?

[Jason Dawes the Elder]

Long time reader here. I'm very much enjoying these roundups.

[Jerry B.]

"But, says two-thirds of a Ninth Circuit panel, had the jury heard about his tortured childhood, it's likely at least one would not have voted to convict him of first degree murder."

Didn't know that the Ninth Circuit was clairvoyant.

If I'm ever in court, can I bring in Madame Velma as an expert psychic witness?

[MonitorsMost]

Reinhardt has never seen a death penalty or life without parole that didn't need to be overturned. If no legal reason exists he's happy to make a new one up. In his words "they can't reverse them all."

[Careless]

They're not even pretending to try to find good justifications.

[ActualRightWingPatriot]

Liberals don't rule in good faith on issues of death penalty, gay "rights", gun laws, or anything else along those lines.

[ReaderY]

On the Michigan prosecutor case, the description seems a bit one-sided. The opinion basically suggested that the police were perfectly reasonable to suspect him of obtaining prescription drugs illegally and they might have found probable cause if it was their call.

[eyesay]

"Personal correspondence sent to Cape Girardeau County, Mo. jail must be on postcards, and inmates can only have 10 postcards in their cell at a time." This was a horrible decision. Contrary to the lying bs decision, it is a violation of first amendment rights to prohibit ordinary 8-1/2 x 11 or even larger pieces of paper and to prohibit enclosure of photographs and children's art. It's also outrageous to prohibit inmates from storing more than 10 postcards at any one time. Moreover, it is contrary to sound rehabilitation. An inmate should be encouraged to save all incoming mail, so he or she can go back to old messages and see how things have changed and how they've stayed the same. It is obvious that circuit Judges LOKEN, ARNOLD, and SHEPHERD have never had a friend in prison, nor been in prison themselves. The system is STEALING $10 from prisoners or their loved ones, many of whom are low-income and from whom $10 is a very big deal, for the 10-minute collect calls that cost essentially nothing in today's technology, and that $10 is plenty enough to pay for someone to open and inspect letters to make sure contraband is not coming in.