Short Circuit: A roundup of recent federal court decisions

Wealth-based pretrial detention, resegregation, and violent retribution for political participation.


After the riots in Ferguson, Mo., the DOJ investigated and found officials there routinely harass citizens with citations, court summons, and even arrests over minor code violations. To thwart such abuses, which are hardly limited to Ferguson, the Missouri legislature enacted a series of reforms to ensure cities use their code enforcement authority to protect the public from harm rather than fill municipal coffers. This session, however, legislation has been introduced to undo much of that good work. IJ Attorney Josh House has more in the St. Louis Post-Dispatch.

New on the Short Circuit podcast: impartial forensics, felon re-enfranchisement, and the constitutionality of the Consumer Financial Protection Bureau. Click here for iTunes.

  • New York Attorney General: Nonprofits seeking to raise money from New Yorkers must turn over a list of their donors to the state each year—or face fines of $100 per day. Nonprofit: Which falls afoul of NAACP v. Alabama, where the Supreme Court held that the NAACP didn't have identify its supporters, lest they face violent retaliation. Second Circuit: Not so. It's unlikely this group's donors would face similar reprisals, even if the state were to accidentally leak their names to the public.
  • Employees of contractor updating NYC's time-keeping software obtain bribes, kickbacks for steering work to subcontractor at inflated rates. The employees get caught; the contractor pays settlement to the gov't. The contractor's insurer pays $15 mil to the contractor pursuant to theft-by-employee policy. To recoup the payout, can the insurer get a piece of the restitution the thieving employees were ordered to pay? The Second Circuit says no. [Updated] But maybe they can get a piece of the forfeiture pie.
  • Debtor doesn't pay $1,289 owed to gym; a debt collector sends a letter offering to settle matter for $129. Yikes! The six-year statute of limitations on the debt has passed. Did the collector violate the law even if it didn't threaten legal action? Maybe so, says the Third Circuit; an unsophisticated debtor might presume the collector's settlement offer implied a legal obligation to settle the debt. (For more on why this case is fascinating, check out CA3blog.)
  • The third iteration of Trump's Travel Ban, which adds North Korea and Venezuela to the list of countries whose nationals are temporarily barred from entering the country, is unconstitutional, says the Fourth Circuit, sitting en banc, with a bevy of varying opinions; the other six countries on the list are majority Muslim, and it's clear that the ban was intended to discriminate against Muslims.
  • Salisbury, Md. school cop handcuffs compliant 10-year-old who'd hit another girl three days previous. Excessive force? Yes, says two-thirds of a Fourth Circuit panel, but, says three-thirds of the panel, the officer gets qualified immunity.
  • In Harris County, Tex.—where over 50,000 people were arrested in 2015 for misdemeanors—judges adopt unwritten formula making it all but impossible for poor misdemeanor arrestees to make bail. Wealthy arrestees routinely make bail. Fifth Circuit: A system where a "wealthy arrestee is less likely to plead guilty, more likely to receive a shorter sentence or be acquitted, and less likely to bear the social costs of incarceration" is unconstitutional.
  • Louisville, Ky. man arrives home to find police officer parked in his space. The officer declines to move; the man utters profanity; the officer follows the man into his home, tases him. Unable to pay $1.5k bail, he spends two weeks in jail, loses his job. A federal jury convicts the officer of making an unreasonable arrest, filing bogus charges. Sixth Circuit: No need to reconsider the verdict or the officer's two-year prison sentence. (Much more on the officer via Sixth Circuit Blog.)
  • Doctors at Columbus, Ohio hospital suspect parents of child abuse, conduct additional tests, and alert child services. Can the parents sue the hospital for conducting unreasonable searches on behalf of law enforcement? They cannot, says the Sixth Circuit.
  • Man convicted in 1984 of shooting into an occupied building gets nabbed for gun possession in 2012; he gets 15-year mandatory-minimum sentence. But wait! Is shooting into an occupied building a violent crime? The Sixth Circuit says no; he didn't actually hurt anyone, so it doesn't count towards the mandatory minimum. Resentence him.
  • Public service announcement: If you file briefs in the Seventh Circuit that raise frivolous arguments and fail to comply with the circuit rules, Judge Sykes may have something to say about that.
  • Concerned that Border Patrol agents are racially profiling, unlawfully searching, and using excessive force at Arivaca, Ariz. checkpoint, area residents observe, video record, and protest from a distance. Ninth Circuit: And in retaliation, the agents may have violated residents' First Amendment rights. Their suit should not have been dismissed. (More via the ACLU.)
  • Pretrial detainee's bail is set at $1 mil even though officials find he is unlikely to abscond or commit new crimes. (He's been in jail since last July.) Grant him habeas? Prosecutors: No objection here; this is probably unconstitutional. California courts: Still, habeas denied. District court: Not for us to interfere in an ongoing state proceeding. Ninth Circuit: Give him a new bail hearing within two weeks or let him go (pending trial).
  • Allegation: Roseville, Calif. police officials disapprove of probationary officer's extramarital affair with a fellow police officer, fire her because of it. Ninth Circuit (creating a circuit split): Her private sexual activities are not the department's business (unless they affect her job performance). Her suit should not have been dismissed.
  • Immigration detainees face solitary confinement, criminal sanctions if they decline to clean common areas in Aurora, Colo. private prison. Illegal forced labor? No error for the district court to have allowed the class action to proceed, says the Tenth Circuit.
  • Allegation: Del City, Okla. middle school teacher unjustifiably and profanely berates student, who reports the incident. In retaliation, the teacher follows the student into a bathroom, forcefully opens a stall door, knocking over the student, whose pants are down. The teacher berates the student further. District court: Qualified immunity. Tenth Circuit: Reversed.
  • Residents of Gardendale, Ala. (who are mostly white) seek to form new school district, which will have the effect of excluding students from surrounding areas (who are mostly black) from the town's schools. Eleventh Circuit: No new district. The plan falls afoul of a 1971 desegregation order.
  • In 2002, owner of dilapidated industrial property in Queens, N.Y. entrusts its care to a group of artists, who improve its condition and cover it in graffiti, turning it into a tourist attraction and cultural site. In 2013, the owner, who plans to demolish the warehouses and build luxury condos, whitewashes over the art. District court: Which violated the Visual Artists Rights Act; pay $6.75 mil in damages to 21 artists. If the owner had waited a few more months while he got his building permits in order; he'd have been assessed a far more modest penalty.

In 2015, the City of Indio, Calif. brought criminal charges against Ramona Morales, a housekeeper and retired makeup saleswoman. Her offense? Tenants in the rental home she'd scrimped and saved to buy were violating city code by keeping chickens in the backyard. Ramona went to court, paid a $225 fine, and made sure the chickens were removed. She thought the matter was settled; it was not. Instead, a year later the private law firm the city hired to handle its code enforcement prosecutions demanded that she pay an additional $2,628—to pay for the firm's time prosecuting her—or that it would place a lien on the house and potentially sell it. She appealed the fine, lost, and the firm billed her for its time working on the appeal. Ultimately, she paid nearly $6,000 over something that could have been handled with a phone call. Last week, Ramona teamed up with IJ to put a stop to the abusive tactics, filing a class action on behalf of residents prosecuted and forced to pay outrageous fees over minor code violations for things like long grass, broken windows, or having address numbers that are sun damaged. Read more here.

NEXT: The History of Wakanda

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  1. By DarrenChaker – Great run down of cases from the federal courts. I liked the inclusion of the Fifth Circuit case in which the bail system keeps people in jail, while only the most well off get out of jail. As the leader of the free world, we as a country need to make sure our justice system is also a system of justice – meaning we cannot lock people up who may be innocent strictly due to what income bracket the defendant is from. Again, great work, and good pick of cases!

    1. What is the purpose of locking up people prior to a finding of guilt?

      1. What is the purpose of locking up people prior to a finding of guilt?

        To assure the appearance of the accused at trial. There’s a lengthy discussion of one’s bail rights under federal and Texas law, and the underlying purposes of those laws, in the district court’s opinion from Southern District of Texas Chief Judge Lee Rosenthal.

    2. The Fifth Circuit case affirming a preliminary injunction against the Harris County Criminal Courts’ bail system is indeed a big damned deal. Congrats to my law school classmate Neal Manne and his colleagues at Susman Godfrey.

  2. According to the Sixth Circuit decision about shooting into an occupied building, the government is wrong to argue that,

    “a defendant uses force against the person of another if the defendant merely shoots in the
    person’s “direction”?even without hitting him.”


    It’s not a violent felony, says the court. I find that amazing.

    1. It’s certainly “merely” when compared to hitting him.

      1. It’s not as bad as hitting him, but from the target’s point of view, I’d hardly call it trivial or non-violent.

        “No big deal. He shot at me, true, but he missed, so who cares.”

        1. It depends very much on the facts of the 1984 case. Did he intentionally shoot at the building knowing it to be occupied but intending to threaten (and maybe harm) the people inside? Or was it a negligent discharge of a firearm that happened to be pointed somewhere in the general direction of the building? Or something in between? Without knowing all the facts of the 1984 incident, neither you nor I are in any position to second-guess the current court’s decision. (Note that if you hold to a “negligent discharge = violent felony” definition, you will be putting pretty much all police officers at risk.)

          By the way, I call strawman on your characterization of the dispute. It’s not “he missed, so who cares” but “he missed, so it’s a lesser crime” than violent felony.

          1. The NC statute that he violated in 1984 says:

            “Any person who willfully or wantonly discharges or attempts to discharge:
            (1) Any barreled weapon capable of discharging shot, bullets, pellets, or other
            missiles at a muzzle velocity of at least 600 feet per second; or
            (2) A firearm
            into any building, structure, vehicle, aircraft, watercraft, or other conveyance,
            device, equipment, erection, or enclosure while it is occupied is guilty of a Class
            H felony.”

            That’s not a negligent discharge.

            It’s not “he missed, so who cares” but “he missed, so it’s a lesser crime” than violent felony.

            I was responding to Brett’s defense of “merely.” I stand by the claim that “merely” unduly minimizes the act. And why does it not count as “violent” if you don’t hit anyone? If I decide to murder you with a rifle shot, but miss, that’s attempted murder, isn’t it? Is that a non-violent crime?

            1. And I stand by my position that “merely” merely indicates a lesser offense, not no offense at all.

            2. I suspect the facts aren’t congenial, but to be Devil’s advocate: a 14 year old is wandering around with his air rifle (there are air rifles that meet the 600 FPS criteria) and shoots at the window of a (he thinks) long abandoned warehouse, but there is a hobo sleeping inside. The pellet doesn’t go within 200 yards of the hobo.

              You’d hope the prosecutor would charge that as simple vandalism, but the facts would support the felony charge.

              1. I agree, but is there any indication that that is what happened here?

                If not, then your hypothetical is not especially relevant to the actual case.

                1. I think everyone is missing an interesting possibility. Try this:

                  The court was looking for a way around that awful mandatory minimum of 15 years for possessing a firearm. They found it by ruling that the 1984 offence was against the physical structure of the building, not the people in it. Therefore it was akin to — oh — vandalism. Sure they’ll get razzed for it, but they’ve done their job of nullifying the application of a draconian law.

                  This fits the decision better than anything else I’ve read.

                  1. This makes sense to me.

                    I admit I was struck by the length of the sentence.

    2. I find it appalling.

      The circuit court held that prior conviction for shooting into an occupied dwelling is not a “violent felony” for Armed Career Criminal Act (ACCA) sentence enhancement purposes for a subsequent illegal gun possession conviction.

      It still remains that shooting into an occupied building is a felony in Tennessee, Alabama, and every state I have checked so far. It rightly is regarded as endangerment to anyone and everyone inside the building, a threat to life or limb.

      The Sixth Circuit not considering it a violent felony seems to be a puzzler. I know if I discharged a firearm into an occupied dwelling or vehicle, it would be considered violent and felonious. And the occupants would be justified under law to return fire in self-defense.

      The court ruling held that the act of firing into an occupied dwelling did not meet the ACCA definition of “the use of force against the person of another”. The problem is the ACCA has a funny def of “violent felony”..

      Guy who shot into an occupied dwelling, hit no one, and served time for that, years later is caught in illegal possession of a gun, but does not qualify for ACCA mandatory 15 years. He’ll be out after he serves time for illegal possession.

      The US surveys of firearms use by offenders and the British Home Office Report 298 (illegal market in firearms in England and Wales) found that inmates interviewed in prison opined that they could acquire a firearm from illegal sources within a week of release.

      1. These summaries sometimes miss some important details.

        In this case, the circuit court held that the discharge was not a violent felony according to the argument the government chose to offer. The relevant definition is “use, attempted use, or threatened use of physical force against the person of another”, but the government chose to argue “use” and abandoned the attempted or threatened use alternatives. They might well have succeeded if they had preserved those options.

  3. Wow, I am astonished at the Second Circuit’s opinion holding SCOTUS decision in NAACP v. Alabama (holding the NAACP didn’t have identify its supporters, lest they face violent retaliation) didn’t apply to the much reviled Citizens United because “it’s unlikely this group’s donors would face similar reprisals, even if the state were to accidentally leak their names to the public.” Way to miss the point! In fact, in light of the IRS’s admitted targeting of conservative organizations, it’s not a *leak* that the organization needs to fear, but reprisals from the government itself!

    1. Yes, we have never seen violence based on politics outside of this single NAACP case.. Just ignore the FRC and Chik-Fil-A shootings. Or the organized boycotts by liberal groups to hound companies into firing those who have bad thoughts. Or the amount of doxxing. Only the NAACP has ever had to worry about it. Nobody else.

      1. Thank goodness the persecuted white male wingnuts have JesseAz available to whimper on their behalf.

        1. Well someone has to.

          And frankly he’s right. In California people were hounded from their businesses when their donations for Proposition 8 (which outlawed same-sex marriage) in 2008 became known. Such open records /will/ be used politically, and politics is a nasty business.

          You may like that right now, because it is done mainly by the Left. But would you have been happy with it in the 1950’s when forces on the Right were using it against communists and their friends and associates?

        2. The world of Kirkland. Where Constitutional rights are determined by the race of the person claiming the rights.

          1. The world of Bored Lawyer: ‘We’re not bigots; we are color-blind, post-racial lovers of traditional values, and we will thank you not to extrapolate unfairly from our positions with respect to voter suppression, abusive policing, affirmative action, gerrymandering, immigration, gay marriage, public accommodation laws, treatment of women, and [insert dozens of others].’

    2. It is up to appeal court judges to decide if you are in any danger. If they are wrong, well that is just one of those things.

      The worst part of the decision is that the basis for the NAACP case was not the actual danger. It was the chilling effect on speech the danger created. The danger does not have to be real to have a chilling effect on speech. That case is absurd.

  4. Re: “Second Circuit: Not so. It’s unlikely this group’s donors would face similar reprisals, even if the state were to accidentally leak their names to the public.”

    Perhaps not simlar in the sense of murderous violence, but reprisals nevertheless. There was the case in Washington(?) where they were resisting a FOIA request for signatures to a ballot initiative. The SC ruled these were public info (how can The People verify it themselves after all) but found it troubling the admitted reason was to go picket and harass them.

    One would like to know who supports an org to see if they have ulterior motives, but not so you can go and harass them. Anonimity is built in to the basic freedoms of speech and voting precisely to avoid this problem, which can and is regularly abused in less free societies.

    1. Original: ‘It’s unlikely this group’s donors would face similar reprisals, even if the state were to accidentally leak their names to the public’

      Fixed: ‘ It’s unlikely this group’s donors would face similar reprisals, even if the state were to “accidentally” leak their names to the public’

      1. Exactly.

        I’d like to see if there are any other groups getting the AG’s attention. After all, if this isn’t for political purposes or intimidation of donors, then the AG would be applying the rule in an even-handed fashion.

        Even if the list is never released, the threat that it could be (and prompt the social-media mob) is enough to slow the group’s fundraising.

  5. The Ninth Circuit bail case is ludicrous. Usually prosecutors support unreasonably high bail because they hope that keeping people in prison pretrial will coerce a plea bargain out of them. Here, though, the prosecutors kept conceding that the bail was too high, and the state and federal courts kept ignoring them and upholding the unreasonable bail. And the District Court insisting on abstaining even when the state didn’t originally ask it to. (And the district court didn’t even get the analysis right, even if the state hadn’t waived the issue.)

    1. At least the 9th Circuit got it right, but I agree, it’s ridiculous that it even needed to go that far.

      1. /AFTER/ the guys has already spent seven months in jail.

        1. Since he had almost certainly been in Jail for months before the case even got to the 9th Circuit, I don’t see how the Circuit Court can be blamed for that.

          You are correct, he shouldn’t have had to spend all that time in jail, but that’s NOT on the circuit court.

          1. Not blaming the 9th. Blaming those previous entities, which should all be rounded up and — jailed for seven months before getting a hearing.

  6. “The third iteration of Trump’s Travel Ban, which adds North Korea and Venezuela to the list of countries whose nationals are temporarily barred from entering the country, is unconstitutional,…”

    Already done in every Somin thread, but this ruling makes no sense. You have to discriminate why these Muslim countries were chosen and not the other myriad of countries. If there were no other factors that determined these countries to be a threat, then maybe you can chalk it up to religious animus. If there were other factors that were unique to these countries that weren’t present in non muslim countries, then you have to consider the issues given for the countries outside of animus.

    The countries on this list were countries that largely refuse to vet or grant the US intelligence to vet citizens of their countries. 2 of the 6 didn’t have the capability to vet anyone applying for a visa in large part. There was an identifying factor against them, that of sharing intelligence data for proper vetting of visa applications. But the ignorant of the left merely looks at the propensity of what victim group is most represented and tosses out all other information.

    The fact that 2 countries removed themselves from the list after agreeing to more stringent data sharing and vetting requirements shows it was not an issue of muslim intolerance but one of information seeking by the State Department to vet for Visas. Somin and this court refuse to acknowledge this basic fact.

    1. It is a point that is no less correct now that it was before. Somin and company are just virtue and status signaling here. There is no way they can actually believe this case is properly decided for any reason other than they don’t like Trump and lack the courage to tell the truth.

      1. Didn’t the SCOTUS rule 2.0 was legal? And he added non-Muslim countries to it. Don’t see how that makes 3.0 unconstitutional.

        1. Me either. It is absurd. And there are plenty of people from the “Muslim Countries” who are not Muslims. So it cannot fairly be described as a Muslim ban. Yet, Somin and company continue to do so.

          1. What do you expect them to do, challenge it on the basis that the country can’t, constitutionally, control immigration?

            Sure, that would be more honest, but they know it’s a total non-starter.

            1. Somin has done that before, Brett

        2. “Didn’t the SCOTUS rule 2.0 was legal?”

          Exactly! In December. In an unsigned order — though Ginsberg and Sotomayor said they would have denied the administration’s appeal. So — basically 7-2 in favor of the ban (well, it’s legality).

          Is the 4th Circuit going commando? Can’t they be taken to the woodshed?

          NYT story on SCOTUS and Trump Immigrant Ban

          1. Then, at this point, Trump should ignore them, citing the SCOTUS earlier decision and saying that the administration is not going to be held hostage by rogue judges issuing opinions that go against the Constitution and precedents.

    2. If Trump is trying to discriminate against Muslims, he’s doing a really bad job of it given that 85% of the world’s Muslims are not covered by the travel ban.

  7. I’m entirely in sympathy with the overall position that Josh Smith expressed in his article re. Ferguson, and the use of the court system as a revenue producer. However, there’s one paragraph that I really wish he’d left out.

    The seventh paragraph (“When cities use their court system…”) bewails the burden that Ferguson-style practices lay on the “most vulnerable”, implying that the impecunious have a stronger claim to justice than the more well-heeled. Presumably, by Smith’s standards, it would’ve been less reprehensible if the Ferguson police had given lots of changing-lanes-without-signaling and 63-in-a-60-zone tickets to people driving BMWs and Lexuses, and used the proceeds for home-heating aid for single mothers.

    No. Injustice is injustice, whomever it may target. When we imply that it’s somehow worse when the victims come from the lower economic strata, we are bowing to the progressive premise that it’s OK to steal from the rich in order to benefit the poor.

    1. Um not, that’s not what the seventh paragraph implies at all.

      I don’t get why you find the contention that those least able to pay fines and court fees are suffer the most harm under any scheme to fund local government from fines and court fees to be controversial.

      It’s not at all about sealing from the rich in order to benefit the poor. While there may be some injustice in imposing fines and court fees on those able to pay, the harm done to those able to pay is not nearly as severe.

      In point of fact these schemes for funding a large part of local government from fines and court fees is stealing from the poor to benefit the rich.

      As I read the article, Smith would much prefer that municipalities set fines and court fees in such a way that the revenue from them doesn’t represent a significant portion of the municipal budget at all.

      1. Perhaps you don’t get it, Mr. Slyfield, because you do not appreciate the majestic equality of a law that forbids rich and poor alike to sleep under bridges.

        That, or perhaps you haven’t qualified for an Asperger’s diagnosis.

  8. The Seventh Circuit’s website seems to be down, but you can find the Sykes opinion here:…..89499.html

    1. 1. 10Q for the working link.

      2. Can you say OUCH!, I knew you could.

  9. The piece of the NYC time-keeping software case I find most interesting is how the employer managed to convince their insurer that their employees’ taking of bribes should trigger their Employee Theft coverage. From the scant coverage of this topic in the opinion, their successful argument appears to have been that the bribes, which were billed back to the client (NYC) as inflated costs, were in some sense stolen from the employer. If so, that’s some pretty good arguing.

  10. Every now and then, whoever summarizes these cases for the Institute of Justice makes an out-and-out mistake. This was one of those kinds. In the NYC embezzlement case, the district court had disallowed the insurer’s claims for reimbursement. The 2nd Circuit agreed for one of the insurer’s theories, but said the district court was mistaken to disallow the other on the available record, and reversed and remanded for further proceedings. So the overall decision was actually in the insurer’s favor, and means the insurer might be end up getting a piece of the proceeds as restitution after all.

    1. Yikes! Thanks. Updated the summary.

  11. “Instead, a year later the private law firm the city hired to handle its code enforcement prosecutions demanded that she pay an additional $2,628?to pay for the firm’s time prosecuting her”

    Prosecutions (and investigations) are inherently not cost-effective based on the fine.

    The fine is calculated, ideally, to be proportional to the crime, and that’s that. Everyone pays taxes to prosecute crimes and implement proportional punishments, with the hope this threat keeps crime down.

    The government could, I guess, unload the work on a private party, but not the costs of doing so, which amount to a fine 10x the size of the official fine.

    Not sure where this idea of the criminal is responsible for the costs of government’s investigation and prosecution, beyond proportional official fines comes from.

    Sounds neat. Isn’t.

  12. An outstanding footnote:

    “Internal Affairs” here refers not to sexual affairs that occur between officers within the department, but to the unit that investigates professional misconduct.

  13. In the Harris County bail case, a remarkable feature of the opinion – and much of what passes for contemporary jurisprudence – is the extremely short shrift it gave the 8th Amendment Excessive Bail clause, holding it irrelevant to the case. The 5th Circuit used exclusively 14th Amendment due process and equal protection jurisprudence to hold that the bail routinely set for indigent defendants is more than is fundamentally fair.

    But how can the Excessive Bail clause be irrelevant to what is, at bottom, a claim that the bail Harris County judges require is excessive?

    There are dangers in flatly bypassing constitutional text and using judge made law, even when it reaches the same results. Constitutional text reflects what the framers value. If federal courts subject Harris County’s bail procedures to heightened scrutiny because they violates values the Framers established as critical, their decision would be grounded in respect for the constitution’s text. This secures it from criticism.

    But when judges ignore the text and base decisions solely on personal ideas of what is fundamentally fair, nobody’s rights are secured for long. We become a nation of men, not laws. Replace the judges, and you get different personal concepts of fundamental fairness. With no objective basis to evaluate, people can look only to their own sense of fairness, their political views, to assess an opinion’s legitimacy. Courts become mere political bodies.

  14. In my view, heightened scrutiny should be based on constitutional text. Here there is relevant text, the 8th Amendment, which makes it totally legitimate to say that policies restricting bail should get heightened scrutiny, just as the First Amendment makes it legitimate for courts to give heightened scrutiny to restrictions on speech. But when judges decide on their own which categories to give heightened scrutiny with no textual hook or warrant, they remove their jurisprudence from the constitution’s textual moorings and leave it to float adrift. This politicizes judicial decision making and leaves decisions subjective, vulnerable to reversal by judges with different values and politics.

  15. Are there cases in North Carolina on firearm by felon where the underlying felony being shooting into an occupied dwelling or a moving vehicle, recieving a felony conviction resulting in a life without the possibility of parole.

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