Short Circuit: A roundup of recent federal court decisions

Killing economic liberty, killing killer owls, and inappropriate dolphin sex.


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

Over at the estimable EconTalk podcast, IJ's own Dick Carpenter discusses bottleneckers, who agitate for occupational licensing and other regulations that make earning an honest living needlessly difficult. Click here to give it a listen.

  • Five commercial truck drivers cited for safety violations sue the feds, whose trucker database includes the citations but not the subsequent acquittals and dismissals of the same. Truckers: The feds won't update the dated data, hurting our job prospects. District court: Cannae sue over that. D.C. Circuit: Two of the drivers can, as their records were shared with potential employers. The other three have not been harmed because the feds haven't shared their data.
  • Baltimore officials pass ordinance requiring clinics that provide free pregnancy-related services—but not abortions or abortion referrals—to post signs in their waiting rooms informing patients of this fact. Unconstitutional compelled speech or a reasonable effort to prevent such clinics from misleading patients, who may believe the clinics do provide abortion services? Fourth Circuit: a First Amendment violation. There's no evidence in the voluminous record that anyone has been misled.
  • Man fails to update his sex offender registration when he moves abroad, so he is sentenced to 673 days. While serving his sentence, gov't deems him sexually dangerous person, subjects him to civil commitment. But wait! The Supreme Court later holds failing to update one's registration if they move abroad is not a crime; man's conviction is vacated. Free him? Fourth Circuit: No. Dissent: There's a constitutional problem with keeping a man in custody for seven years without a valid conviction.
  • Lexington-Fayette Urban County, Ky. officials ban leaving unsolicited written materials on people's driveways, yards—which means publisher of free weekly paper will have to leave it in a mailbox, betwixt an interior and exterior door, or another statutorily prescribed place. A First Amendment violation or a reasonable attempt to cut down on visual blight and litter while protecting property owners from unwanted paper? District court: Probably the former. Sixth Circuit: Reversed. The ordinance can go into effect while the publisher's suit proceeds.
  • Cleveland police officer: I shot suspect, killing him, after he declined to get out of car, reached for gun. Witnesses: The suspect was kneeling on the ground with his hands up when the officer shot him in the back of the head. Jury: Excessive force. District court: Pay $4 mil. Sixth Circuit: Affirmed. (The officer is still on the force.)
  • Cincinnati ordinance: When bidding on water treatment contracts with the city, would-be contractors must certify whether they provide health care and retirement benefits to employees. Contractor: The city is unlawfully rigging the bidding system to favor unionized contractors—who provide better benefits than what federal law requires—over non-unionized contractors who comply with federal law. Sixth Circuit: Perhaps, but it doesn't matter because federal law permits the city to set whatever terms it wants with whatever contractor it wishes in this instance.
  • Missouri requires African-style hair braiders to undergo costly (nearly $12,000 on average) and time-intensive cosmetology/barber training (1,500/1,000 hours respectively) that, by the state's admission, is almost entirely irrelevant to braiding. An unconstitutional restriction on the right to earn a living? The Eighth Circuit says no; officials are free to impose "needless, wasteful" requirements. (This is an IJ case. Another concession not mentioned in the opinion: None of the three health and safety issues specific to braiding identified by the state's experts are addressed by the licensing scheme. See page 12–13.)
  • To bolster the endangered northern spotted owl, the feds ban logging on millions of acres in the Pacific Northwest. Yikes! Instead, a more aggressive species from the East Coast, the barred owl, moves in. The northern spotted remains as endangered as ever. Now the feds plan to kill up to 1,600 barred owls. Plaintiffs: Illegally! If you're going to "take" a species, it must be to benefit that species—not to benefit another species. Ninth Circuit: Not so. The feds can proceed. (Click here for more on northern spotted v. barred.)
  • Woman taking ski lesson at Keystone, Colo. resort breaks her leg as she tries to exit chairlift. Must the resort operator pay damages? Indeed not, says the Tenth Circuit. She signed a waiver waiving liability for lift-unloading accidents, and there's no sound reason to waive that waiver or to waive the other waiver that was printed on the back of her lift ticket.
  • Tenth Circuit: No need to overturn the tax evasion and related convictions of Douglas Bruce, the former Colorado state legislator who wrote the state's Taxpayer Bill of Rights, which requires legislators to submit a ballot initiative to the voters whenever they want to raise taxes. (Last fall, NPR did a deep dive on Bruce.)
  • Lolita the killer whale has lived at Miami Seaquarium since 1970. Do the conditions of her confinement, including sharing her tank with dolphins that engage in inappropriate sexual behavior, amount to "harm" and "harassment" in violation of federal statute? The Eleventh Circuit says no.
  • Palm Beach County, Fla. officer stops bicyclist; four seconds later, he shoots the cyclist four times at point blank range, rendering him a paraplegic. Jury: Excessive force. District court: Pay him $22 mil. Eleventh Circuit: Vacated. The jury got bad instructions. Dissent: The officer didn't challenge the instruction the majority seizes on; neither side briefed whether it was incorrect; and it wasn't.
  • Allegation: Woman angrily protests ejection from Macon, Ga. concert. Though she's "totally compliant," an officer takes her to ground without warning, breaking her arm. Gratuitous force? District court: A jury should decide. Eleventh Circuit: Reversed. The officer is entitled to qualified immunity.

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NEXT: Where Are the Supreme Court's Opinions?

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  1. The Eighth Circuit says no; officials are free to impose “needless, wasteful” requirements.

    I don’t suppose there’s a name for scrutiny below rational basis

    1. Around here, it’s know as the “FYTW” basis.

    2. “Rational basis”; In practice, rational basis would be better termed “not gibbering insanity” basis, since it doesn’t actually require that the basis be rational, just that the judge be able to imagine a basis somebody could adopt without being a raving lunatic.

    3. Irrational Basis?
      FUBAR Basis?

  2. “dolphins that engage in inappropriate sexual behavior”

    No real comment,just wanted to highlight that phrase.

    1. I want to know exactly what the dolphins were doing that PETA considered sexual and exactly why they considered it inappropriate.

      1. Seriously, dolphins do have a reputation among marine biologists of being real perves.

    2. Eeeeeeeeeeeee means yes.

  3. Even though it was only a broken arm, that Eleventh Circuit case was bad. The panel just couldn’t seem to get over the fact that the woman was cussing (prior to her arm being broken). I think that case would have gone the other way in most courts.

  4. So who the hell came up with the idea of qualified immunity? Can we arrange for law enforcement to beat them severely for no good reason, and then be cleared of wrongdoing due to qualified immunity?

    1. “So who the hell came up with the idea of qualified immunity?”

      The US Supreme Court.

      “Can we arrange for law enforcement to beat them severely for no good reason”

      That would be a neat trick, only two of the former justices from the Court that created QI are still alive.

      1. Well, if the current justices will uphold bad precedent….

      2. MatthewSlyfield: “That would be a neat trick, only two of the former justices from the Court that created QI are still alive”

        Well, they would be a start….

        As long as: Did they vote in favor of the travesty?

        1. Yes, both O’Conner and Stevens were in the majority on Harlow v. Fitzgerald.

          1. Okay. Here’s the plan (don’t tell anyone). A law enforcement officer will throw them to the ground and cuff them, then explain to everyone that it looked like they might be reaching inside their judicial robes for firearms (I know they wear robes all the time because I saw it in the episode of “The Simpsons” where Bart becomes a Supreme Court Justice). It will help if they are riding bicycles at the time, or maybe being expelled from “The Originalist” for openly mocking Scalia

            Bart Simpson, Chief Justice

  5. The qualified immunity seems like the justice department auctioning off constitutional rights.

  6. The problem with qualified immunity is not (despite the widespread claims) that police are shooting people left and right for no good reason. It’s that, when they do, it is /so/ hard to hold them accountable.

    (I don’t know how hard it is to hold them accountable for egregiously breaking arms, shooting family dogs, and such; I imagine it’s much harder)

    1. The excessive force and puppycide are certainly a symptom of a seriously flawed approach, but like you said, it would be impossible to end that crap. I can’t let blatant murder go, though. How many officers keep their jobs or get paid leave through a lethal force investigation is illustrative of how everyone involved truly doesn’t see any problem with these events.

      Someone I know insists that people go into the military or police to ‘kill some people, preferably ones with lots of melanin.’ Now, I think that’s bullshit, but I have to admit that we’ve made an attractive profession for any such malicious people. Eleventh circuit didn’t do great in these two rulings.

      I’m sure Lolita the orca is also perturbed at their indifference to her deviant roommates.

      I’m finding myself reading a lot of Onion-worthy headlines from not-fake news sources recently.

  7. “The problem with qualified immunity is not (despite the widespread claims) that police are shooting people left and right for no good reason. It’s that, when they do, it is impossible to hold them accountable.”


  8. Hey John,
    Are you using your inner Scot? ” Cannae sue over that.”

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