Short Circuit: A roundup of recent federal court decisions

A risky parking receipt, an injurious letter, and NYC gun control.

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

New on the podcast: New York's donor disclosure requirements for nonprofits, "consenting to a search" post-SWAT raid, and license plate scanners. Click here for iTunes.

• NYC forbids individuals licensed to possess handguns in their homes from taking them outside the city, which means plaintiffs, who would like to practice and compete at firing ranges outside city limits, must borrow or rent other firearms. A Second Amendment violation? The Second Circuit says no. Also, one plaintiff, who would like to take his handgun to his second home upstate, can just apply for a separate license from the authorities there.
• Your sentence for insider trading depends in part on the total gains from the illegal trades, but that doesn't include trades made by third parties you didn't know about, says this Third Circuit panel.
• Friends, if you are not wearing a wetsuit, you should take special care not to fall off the back of a jet ski. Please take our word on this, but if you find you cannot we refer you to this Fourth Circuit decision.
• Hancock County, W.V. officer is convicted, sentenced to 18 months in prison for beating up drunk motorist who displayed insufficient respect. Officer: The trial court erred by letting the jury know about those other times I beat up people who failed to respect my authority. Fourth Circuit: We're OK with it.
• There's no need to reconsider the conviction of a white supremacist sentenced to die for his role in the murder of a black man, says the Fifth Circuit. The victim, who was chained to the back of a pickup truck and dragged to his death, is memorialized in both state and federal hate crimes legislation.
• Officer declines to intervene as subordinates beat a handcuffed, compliant inmate in New Iberia, La. jail chapel (where there are no cameras). The officer leaves the chapel as a subordinate is forcing his baton into the inmate's mouth, choking him, simulating oral sex. Fifth Circuit: No need to reconsider the officer's four-and-a-half-year sentence.
• A tale of a merger gone bad! Company 1: Company 2's officers tricked us into assuming $60 mil debt to Company 3, which we had to settle for $18 mil! We're suing Company 2's officers to get our money back. Company 2's officers: Give us all the documents about the litigation between Company 1 and 3, even communications between Company 1 and its lawyers. Magistrate judge: Hand 'em over. Company 1 waived attorney-client privilege by filing a lawsuit where privileged communications might be relevant. Fifth Circuit: Whoa there. This ruling is so clearly wrong we will grant the rare mandamus petition blocking the magistrate judge's discovery order.
• To obtain a permit to become an alcohol retailer in Tennessee, one must first reside in the state for two years. Which discriminates against out-of-state retailers in violation of the dormant Commerce Clause, says two-thirds of a Sixth Circuit panel.
• Letter conveys good news—lender agrees to waive a debt!—but fails to disclose that it is a "communication from a debt collector" as required by Fair Debt Collection Practices Act. Recipients sue for statutory damages. Sixth Circuit: Because the recipients of the letter were not injured, they do not have standing to sue. Congress cannot turn a benefit into an injury just by saying it is so.
• Responding to a call about a dispute between neighbors in Milwaukee, very bad police officer sexually assaults the caller, is subsequently convicted and sentenced to 24 years in prison. Seventh Circuit: But his very bad lawyers provided ineffective counsel, so try him again.
• State mistakenly sends prisoner to federal prison for approximately seven months. Later, state sentence complete, the prisoner is sent to federal prison for real. Ninth Circuit: The prisoner is not entitled to credit for the time he mistakenly served in federal prison, as he was still serving his state sentence. Dissent: He was in a federal prison, so he was serving his federal sentence.
• Man pays for parking; his printed receipt displays his credit card expiration date. Man: Which creates an imminent risk of identity theft and credit card fraud. Ninth Circuit: It does not.
• Judge declines to revoke woman's pretrial release, so Yamhill County, Ore. court officer asks another judge—a golfing buddy who wasn't then assigned to handle criminal cases—to do it, and he obliges. The woman spends two days in jail on the defective warrant. Ninth Circuit: She can sue the officer. Dissent: Unconscionable but absolute immunity should apply.
• If the DEA has a confidential informant take your truck to use in illegal drug drop-offs, is that a Fifth Amendment taking or just "the government's inherent police power"? The Court of Federal Claims says taking the truck might be a taking.

Dr. Lee Birchansky wants to open an outpatient surgery center next to his ophthalmology practice in Cedar Rapids, Iowa. But state officials have repeatedly denied him the necessary permits—not out of concern for public safety but because the two hospitals where all such surgeries in the area are currently performed do not want additional competition. Which might be unconstitutional, says a federal district court that recently allowed Dr. Birchansky's suit to proceed. Read more here.

Comments

[ActualRightWingPatriot]

Regarding the 2nd Circuit gun case, does anyone still dispute that the lower courts are acting in bad faith regarding Heller and the 2nd Amendment in general?

[Jerry B.]

I don't, but I'm sure that the Rev. will, along with various insults and a comment about faith-based universities.

[Michael Ejercito]

Imagine if lower courts treated Obergefell the same way they treat Heller.

[Toranth]

Of course homosexuals can get married! In that one county. If you want to be married in a different county, you can move there, and apply for another marriage licence.

For that matter, can you imagine what these same courts would say if a law made it illegal to move across county borders when getting an abortion?

[ActualRightWingPatriot]

And only if you have a "compelling need" and if you pay a $350 fee to do a background check on your HIV status.

[jjrzw72]

It requires less imagination that you'd think.

http://www.texastribune.org/2017/06/3.....-benefits/

[jph12]

They haven't issued a final decision in that case. They merely ruled that the case could proceed on the merits.

[jjrzw72]

So you'd be fine with, say, New Jersey's supreme court, or the Third Circuit, refusing to grant a preliminary injunction against a law completely forbidding the private ownership of firearms? After all, that would merely be a ruling that the case could proceed on the merits.

[jph12]

If the effect of Heller hadn't been argued on the merits by the time it got to the supreme court, yes. But given how long ago Heller was decided, I have a hard time seeing that happening.

And this case is being prosecuted by an opponent of extending the benefits, trying to take them away. I'm almost positive that the employees are currently getting the benefits, which reduces the necessity of relying on preliminary decisions.

Finally, I'm willing to bet that, in the end, the City will win, distinguishing this case from the Heller line. If they don't, then you will have a good example.

[BillyG]

I'd like to see the legislators notes & comments regarding the law. Perhaps some 'animus' will be self evident.

[dantheserene]

It is impossible to work from the Constitution forward to this decision. Clearly, they started from the conclusion and worked back through smoke and mirrors.

[ActualRightWingPatriot]

Exactly. The same goes the 9th Circuit "safe storage" decision and the 7th Circuit "assault weapons" ban decision.

[Brett Bellmore]

No, but additionally, I'm aghast at the idea that NYC can dictate what it's residents do outside its borders.

What are they, freaking serfs, tied to the land?

[ActualRightWingPatriot]

NYC and California are lost causes. Too bad the rest of the country is following in their footsteps with every new naturalized third world citizen.

[Rev. Arthur L. Kirkland]

New York and Carolina seem destined to continue to prefer progress, but right-wingers will always have Alabama, Oklahoma, Utah, Mississippi, and South Carolina to drag the educational and economic rankings in the direction conservatives prefer.

[BillyG]

Upwards? Because "we can't fail them" and "participation trophies" are so good at increasing grades. Then there's the comparison of city schools with non-city schools. Its no wonder people prefer the suburbs for raising kids.

Carry on tyrant.

[Jerry B.]

As opposed the the governments in Liberal bastions like D.C. and P.G. county Maryland, that inflate their graduation rates by giving diplomas to students who don't show up to class half the time and are functionally illiterate.

[ActualRightWingPatriot]

I suppose you consider making it legal to intentionally spread HIV so as not to stigmatize homosexuals to be "progress."

[Rossami]

I don't think even NYC thinks they can assert jurisdiction outside their borders. (At least, I hope they've retained that smidgen of rationality.) But the wording of their law does make it illegal to transport the weapons for unauthorized purposes. And then the Police Department defined "unauthorized" to include target practice at ranges outside NYC. So if you can figure out a way to get the weapons out of the city without traveling through the city, you should be in the clear.

Now where did I leave my teleporter?

[Brett Bellmore]

I'd solve that problem by leaving the city, and not returning, personally.

But what shocks me somewhat, though it shouldn't, is that a court would have no problem with it.

[Absaroka]

"I'd solve that problem by leaving the city, and not returning, personally."

Question: can you legally take your gun with you when you leave? The relevant law below doesn't seem to recognize leaving the state (or moving within the state) as an acceptable reason to have the gun off the licensed premises. If you decide to destroy it in place prior to moving, remember that "Failure to notify in writing the Division Head, License Division prior to disposing of handgun is a Class A Misdemeanor pursuant to New York State Penal Law ? 265.10(7)".

38 RCNY 5-23
"(2) The possession of the handgun for protection is restricted to the inside of the premises which address is specified on the license.
(3) To maintain proficiency in the use of the handgun, the licensee may transport her/his handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, in a locked container, the ammunition to be carried separately.
(4) A licensee may transport her/his handgun(s) directly to and from an authorized area designated by the New York State Fish and Wildlife Law and in compliance with all pertinent hunting regulations, unloaded, in a locked container, the ammunition to be carried separately, after the licensee has requested and received a "Police Department ? City of New York Hunting Authorization" Amendment attached to her/his license."

[Brett Bellmore]

Do I care if they thought it was legal, if I'm never returning? Are they going to extradite me from South Carolina, for the crime of not leaving my gun in NYC?

[Absaroka]

It's more of an academic question than a practical one, unless you get pulled over on your way out.

But it shines a light on whether the NYC laws comport with Heller. On the face, they allow you to possess a gun in your home, so to a very narrow reading they meet the Heller test. But can a law where, say, you can't move from residence to another, or send a defective gun to the manufacturer for repair, still not infringe?

[BillyG]

I think this is one case where'd they run afoul of federal law. Federal law states what is required for interstate transport of fire arms. If NYC is prohibiting interstate transportation by block transportation inside its borders, it'd be trying to supersede federal law, and over ruled?

[Absaroka]

If you're referring to FOPA, the NY courts seem to disagree. From Beach v. Kelley (where Mr. Beach traveled with his gun to Nevada and consequently had his NY license revoked):

"Petitioner argues that notwithstanding any other provision of law, rule or regulation of any state, the Firearm Owners' Protection Act (FOPA) (18 USC ? 926A) permits the transportation of firearms for any lawful purpose between two places where an individual may "lawfully possess and carry" the firearm. Since he was permitted to carry his gun in New York and held a license to carry a firearm in Nevada, he asserts the agency's determination was arbitrary and capricious.
...
It is not necessary to permit holders of premises residence firearms licenses to transport guns to another state in order to harmonize the law of this State with the provisions of FOPA. Section 926A permits a licensee, in certain circumstances, to transport a firearm "from any place where he may lawfully possess and carry such firearm to any other place where he may lawfully possess and carry such firearm." Where the licensee is not permitted by the terms of the license to lawfully carry the firearm at the time he embarks on a trip to another state, FOPA is inapplicable."

[ActualRightWingPatriot]

If liberals want to know why we won't agree to 'reasonable" and "common sense" gun laws, this is why. Because when Democrats have complete control, this is what they do. I'd be willing to agree to many stricter measures if it came with a law that stated that any further demands for gun control will be outside the protection of the 1st Amendment and that such determination is not reviewable by any court. In other words, we'll compromise now, but if you demand any further gun control, you're going to jail.

[Rev. Arthur L. Kirkland]

When the backlash against gun absolutism arrives, consequent to gun nuts' alignment with a losing conservative electoral coalition against a demographic wave fueled by tolerance, science, modernity, education, and reason, the right-wingers are going to be quite cranky. Some will recognize, too late, that extreme positions did not help them. Others will just foam and bluster, ranting about how their extreme positions should never be questioned. But in the end America will have sensible gun safety rules.

[Jason Cavanaugh]

Funny how none of the gun control proposals are based on mathematically acceptable statistics.

Is that the kind of science and reason of which you speak?

[BillyG]

And that's where we enter the Court of the Red Queen.

[Rev. Arthur L. Kirkland]

I am not familiar with the Red Queen, but it sounds like something society's losers mutter about after they recognize their aspirations will fail.

[OtisAH]

My guess is that folks who aren't just talking shit on the internet will dispute that "the lower courts are acting in bad faith regarding Heller".

[ActualRightWingPatriot]

Do you think coming to a result first and then finding reasoning to support it is good faith?

[OtisAH]

No, I think you're talking shit on the internet.

[CrispyBacon]

It's a poor Commerce Clause holding. Compare the 6th Circuit's alcohol opinion, p. 18, to p. 38 of this opinion which reads like a (not good) high school essay:

"The Rule does not facially discriminate against interstate commerce, as it does not prohibit a premises licensee from patronizing an out-of-state firing range or going to out-of-state shooting competitions. The Plaintiffs are free to patronize firing ranges outside of New York City, and outside of New York State; they simply cannot do so with their premises-licensed firearm.

The Plaintiffs also present no evidence that the purpose of the New York City rule was to serve as a protectionist measure in favor of the City's firing range industry. To the contrary, as discussed above, the Rule is designed to protect the health and safety of the City's residents. It is therefore directed to legitimate local concerns, with only incidental effects upon interstate commerce."

The 2nd Circuit notes NYC has discretion to determine "proper cause" to grant "carry" licenses. If, as here, NYC doesn't grant, interstate commerce is inihibited. Gun rental is irrelevant.

The 2nd Circuit's opinion turns on the stated intent of the law, not what it does. The court undercuts itself on pages 26 -28, extolling the sufficiency of NY shooting ranges. It is a law that, per the 6th Circuit's language, "favors NYC interests at the expense of interstate commerce."

I think the NYC licensing scheme implicates equal protection concerns also.

[Jason Cavanaugh]

A decision which can effectively be summarized as: You don't have the freedom of travel if you're exercising your freedom to keep and bear arms.

Disappointing.

[Bored Lawyer]

"There's no need to reconsider the conviction of a white supremacist sentenced to die for his role in the murder of a black man, says the Fifth Circuit. The victim, who was chained to the back of a pickup truck and dragged to his death, is memorialized in both state and federal hate crimes legislation."

The fact that this is still being litigated 20 years later is an embarrassment.

[Bob from Ohio]

It was an issue in the 2000 political election for goodness sake.

He is probably 10 years from getting executed.

[Careless]

has a white supremacist sentenced to death for the murder of a minority had appeals in the 9th in recent decades?

[apedad]

RE: Dr. Birchansky in Iowa. . .

Heck, Iowa doesn't need another ophthalmologist.

Blind people can own weapons in Iowa!

http://www.foxnews.com/us/2013.....blind.html

[BadLib]

From the linked article:

"Imagine me with a gun. It's just crazy," [Stevie] Wonder told CNN while calling for reforms to what he has previously called "ridiculous" gun laws.

Of course, when I saw Wonder in an almost empty restaurant in the L.A. area some years ago (it appeared he was on a date as he was in deep discussion with an attractive lady), he had a guy about they size of a small mountain sitting at the next table glaring at us across an otherwise empty room. So, yes, it would be crazy for Wonder to carry a gun, he's got a hired gun right next to him (likely all the time when he's in public).

[Careless]

There's been a running and unusually well-supported conspiracy theory that he isn't actually blind. Which isn't really relevant to this thread, but I do find amusing.

[MatthewSlyfield]

It is silly, but calling it a conspiracy theory is even sillier.

Suppose he is faking being blind, where is the conspiracy?

[Careless]

You don't understand how many people working together to trick people to give them money could be a conspiracy? Oh well, then

[MatthewSlyfield]

No, I don't understand how Stevie Wonder faking his blindness amounts to more than one person working to trick anyone. The fact that he's faking wouldn't by itself prove others are in on it.

[MatthewSlyfield]

He wouldn't need anyone else to be in on it, in fact it would be easier to pull off if no one else was in on it.

[bernard11]

Matthew,

It's a conspiracy theory. It's better if it doesn't make sense.

[Careless]

He was 11 when he was a signed professional musician. His parents would have to have been in on it, at the very least

[Sarcastr0]

This is some pedantic BS right here.

[Sarcastr0]

(To be clear, I'm on Careless' side - this is a conspiracy theory, even if it doesn't meet the legal definition of conspiracy.)

[OtisAH]

It's your opinion that people pay Stevie Wonder because he's blind?

[OtisAH]

I thought that's where he was going with the story.

[OtisAH]

You make a great point. Blindness shouldn't be a barrier to owning firearms, but being able to afford personal security should be. I'm looking forward to the case in which the government, testing the new law prohibiting gun ownership for those who can pay a security guard, successfully arguing that paying protection money to the local gang constitutes "affording personal security."

[Bob from Ohio]

The second Circuit case illustrates the need for Congress to pass concealed carry reciprocity.

[ActualRightWingPatriot]

It also illustrates the need for Congress to pass a Voting Rights Act style preclearance system for gun laws.

[Brett Bellmore]

Bingo. At this point it should simply be presumed that all gun laws are founded on animus, until proven otherwise. Exceptions are few and far between.

[ActualRightWingPatriot]

Most leftist "leaders" acknowledge that the "assault weapons" ban is nonsense. The point is to set the stage for further bans.

[OtisAH]

"Most" Huh? Then it shouldn't be too hard to provide a few examples of "leftist leaders" who acknowledge an assault weapons ban, which we already had once, is "nonsense".

[ActualRightWingPatriot]

Sugarmann, who coined the term, admitted the purpose was to mislead people and try to ban more guns:

"Assault weapons' menacing looks, coupled with the public's confusion over fully-automatic machine guns versus semi-automatic assault weapons --anything that looks like a machine gun is assumed to be a machine gun-- can only increase the chance of public support for restrictions on these weapons."

[OtisAH]

See, this is where I get the impression you're just talking shit.

Who is Sugarmann (besides apparently being the person who coined the term "assault weapons" (citation?) I mean), what portion of the Leftists does he lead, and where does he say in that quote he believes a ban on assault weapons is "nonsense"?

[ActualRightWingPatriot]

He's a major anti-gun leader. You're ridiculous.

[OtisAH]

Okay, he's "a major anti-gun leader," which certainly constitutes a Leftist Leader to you.

Moving on, if we can just get to the part where he claims an assault weapons ban is "nonsense," and perhaps find a citation for him naming assault weapons "assault weapons," I think we can have this all wrapped up before lunch. For expediency, you don't have to provide the citation for his term-coining, but it would be nice. I enjoy etymology.

[Brett Bellmore]

Josh Sugarmann, founder of the Violence Policy Center.

He's actually quite famous. Or notorious, depending on your viewpoint.

[less lean eel son]

But, can anything arwp said be backed up with facts?

He is obviously in no position to call someone rediculous. Apparently happy to spout BS, with no backup. BB has shown he is anti gun, but not that he coined the phrase 'assault rifle', nor dismissive of his own advocacy. Also, running a gun control advocacy nonprofit doesn't mean he is a leftist leader.

And this is just an attempt to provide one example when he claimed 'most' leftist leaders say an adult rifle ban is ridiculous. Arwp is laughable in his trolling and inability to back up his statements with facts. Either try to show you aren't just talking crap, or admit you spoke too soon, without knowledge.

[less lean eel son]

But, can anything arwp said be backed up with facts?

He is obviously in no position to call someone rediculous. Apparently happy to spout BS, with no backup. BB has shown he is anti gun, but not that he coined the phrase 'assault rifle', nor dismissive of his own advocacy. Also, running a gun control advocacy nonprofit doesn't mean he is a leftist leader.

And this is just an attempt to provide one example when he claimed 'most' leftist leaders say an adult rifle ban is ridiculous. Arwp is laughable in his trolling and inability to back up his statements with facts. Either try to show you aren't just talking crap, or admit you spoke too soon, without knowledge.

[less lean eel son]

But, can anything arwp said be backed up with facts?

He is obviously in no position to call someone rediculous. Apparently happy to spout BS, with no backup. BB has shown he is anti gun, but not that he coined the phrase 'assault rifle', nor dismissive of his own advocacy. Also, running a gun control advocacy nonprofit doesn't mean he is a leftist leader.

And this is just an attempt to provide one example when he claimed 'most' leftist leaders say an adult rifle ban is ridiculous. Arwp is laughable in his trolling and inability to back up his statements with facts. Either try to show you aren't just talking crap, or admit you spoke too soon, without knowledge.

[MatthewSlyfield]

"BB has shown he is anti gun, but not that he coined the phrase 'assault rifle', nor dismissive of his own advocacy."

Well, to start with, it wasn't suggested that Sugarmann coint the pharse "assault rifle", that is an older term that goes way back and refers to military rifles with select fire (automatic or semi-automatic) capability.

The term it was claimed Sugarmann coined is "assault weapon" a different term with a different meaning.

While there is some evidence that Sugarmann, or at least the gun control advocacy group he founded popularized the term, there is little actual evidence that he originated the term.

Other's claim it originated in the gun industry itself, to market semi-auto guns styled after military assault rifles. I've seen no actual evidence to back that claim either.

The best evidence I can find one way or the other (which goes against Sugarmann being the origin of the term) is that the Merriam Webster only line dictionary entry for assault weapon puts the first use of the term back to 1966, though they don't site a specific source for that.

[less lean eel son]

But, can anything arwp said be backed up with facts?

He is obviously in no position to call someone rediculous. Apparently happy to spout BS, with no backup. BB has shown he is anti gun, but not that he coined the phrase 'assault rifle', nor dismissive of his own advocacy. Also, running a gun control advocacy nonprofit doesn't mean he is a leftist leader.

And this is just an attempt to provide one example when he claimed 'most' leftist leaders say an adult rifle ban is ridiculous. Arwp is laughable in his trolling and inability to back up his statements with facts. Either try to show you aren't just talking crap, or admit you spoke too soon, without knowledge.

[less lean eel son]

But, can anything arwp said be backed up with facts?

He is obviously in no position to call someone rediculous. Apparently happy to spout BS, with no backup. BB has shown he is anti gun, but not that he coined the phrase 'assault rifle', nor dismissive of his own advocacy. Also, running a gun control advocacy nonprofit doesn't mean he is a leftist leader.

And this is just an attempt to provide one example when he claimed 'most' leftist leaders say an adult rifle ban is ridiculous. Arwp is laughable in his trolling and inability to back up his statements with facts. Either try to show you aren't just talking crap, or admit you spoke too soon, without knowledge.

[Chem_Geek]

Clearly, less lean eel son is in violation of the National Blog Act's prohibition on fully-automatic posting devices... 😉

[Sarcastr0]

Oh, very well played, sir! 😀

[Chem_Geek]

[Thanks, while I've rarely agreed with you Sarcastro I've always found your posts amusing.]

[Voize of Reazon]

Probably using a bump keyboard.

[Brett Bellmore]

Isn't that the model that Vector used in Despicable Me?

[Chem_Geek]

Oh, is that why it only fired five posts before jamming?

[Chem_Geek]

And, had I spent a little longer before posting...I'd have written that "Shurely less lean eel son is in violation..,"

[OtisAH]

It is true that celebrity is not based on whether I know the person. But only true by a little.

[PeteRR]

In the 2nd Circuit case, how have they not declared "bearing" arms to be a nullity? The right is extinguished.

[ScottK]

Who on earth wears a wetsuit while riding a jet ski? People in Norway?

[BillyG]

In all honesty, that was probably the least of the issues with the plaintiff.

The PWC and accompanying owner's manual also contained warnings that only three people may ride the craft at a time, the operator should be at least sixteen years old, and a person should not ride after consuming alcohol.

followed shortly by

When she was injured, Hickerson was wearing a bikini and no wetsuit. It is undisputed that she was the fourth passenger on the PWC, a ten-year-old was driving, and Hickerson had consumed alcohol prior to riding.

[Brett Bellmore]

Anybody sensible. I was able to identify the reason why it was a bad idea not to be wearing a wetsuit, before even opening the link. It's obvious to anybody who understand how they work.

And I've never even ridden a jet ski.

[Careless]

It seems like you would need a very specific combination of factors for that to be an issue/solution. You have to fall off, you have to fall off in the right way, and the jet ski, while under power, remains motionless in the perfect position

[Brett Bellmore]

Not motionless, it only takes an instant, and you're in for a world of hurt.

As I've been trying to explain to my 9 year old, it's not enough to do things in a way that you have a better than even chance of not being injured. You've got to do them in an overwhelmingly safe way, because if you don't, the odds add up, and not in your favor.

Sure, 99 times out of a hundred falling off, the water jet will just bruise your leg or whatever. The hundredth time puts you in the hospital. Would you cross the street if you only had one chance in 100 of being hit by a semi truck?

[CrispyBacon]

Well said. It's basic risk awareness that comes in handy, ways big and small. Whether big as internal injuries or a broken dish you balanced precariously on the edge of something "just for a second." One can avoid disappointment, embarrassment, injury, and loss simply by recognizing the potential ill results.

If a person recognizes the negative potential, and makes a judgment that a thing is worth doing, then fine. Many of us ride bicycles without a helmet. I wouldn't ride a bicycle in NYC if I was covered in sofa cushions.

[Noscitur a sociis]

Re the Milwaukee police officer: I agree that the jury instruction was problematic, but the discussion of the issue reads almost as if this was a direct appeal. I'm less sure that it should entitle the defendant to relief on an ineffective assistance claim, and I'm surprised that the procedural discussion is so cursory.

Linguistic question: the opinion repeatedly refers to the police vehicle as a "squad" (not a "squad car"), which is a usage I don't think I've ever encountered before. Has anyone else seen this?

[Absaroka]

'"squad" (not a "squad car")'

I think I've heard that, probably in police biographies. I suppose if you're saying 'squad car' 47 times a day, it makes sense to abbreviate.

My sense is that these vary a lot by locale, e.g. I've heard 'unit' used for 'police car', and probably a lot of others I'm forgetting.

[santamonica811]

For me (Firefox, most updated version), not a single link works. (Well, I gave up after clicking on 6 different ones.) Based on the earlier posts in this thread, the links obviously work for some (all??) others.

Hmmm . . . .

[santamonica811]

Actually, the final link (formatted differently, re Dr. Lee Birchansky) does work just fine.

[MatthewSlyfield]

I'm also using Firefox v. 58.0.2 (64-bit) (the latest version), I had no problem with any of the links.

[santamonica811]

Hmmm. I know that, for prior "Short Circuit" posts, I was always able to successfully click on the links. Zero idea why it suddenly stopped working. . . apparently, just for me. 🙁

[Careless]

My Android phone can't even access the comment sections on Volokh (no links appear, no ___ comment signs, etc) even though it can on the rest of Reason. that one confuses me

[nonzenze]

Use the desktop version.

[Absaroka]

"Also, one plaintiff, who would like to take his handgun to his second home upstate, can just apply for a separate license from the authorities there."

Clearly, society is better off if he buys a second handgun to leave in the remote, unattended, vacation home for when he visits. No downsides to that.

[OtisAH]

Are you suggesting, for society's sake of course, that gun owners be required to have all owned firearms on their person at all times? Or is there some distinction I'm not seeing between leaving firearms unattended at home versus leaving them unattended at a vacation home?

[Jerry B.]

Well, if you carry one firearm back and forth with you to your vacation home, it's unattended for a lot less time than two firearms, one at your home, and one at your vacation home. It'd also be one less gun in private hands, and you might approve of that.

In fact, if everyone carried all their guns all the time, there'd be no unattended guns for burglars to steal.

[Absaroka]

"Well, if you carry one firearm back and forth with you to your vacation home, it's unattended for a lot less time than two firearms, one at your home, and one at your vacation home."

Precisely so.

[OtisAH]

So there's at least an allowable time period in which firearms can be left unattended without a threat to society? Am I good if I leave them for a weekend, or is an 8 hour workday about the limit? What about overnight? What if I own a half dozen firearms? Or a baker's dozen? Or 30? Do I carry them all with me, or is society safe so long as one of the unattended firearms is charged with supervising the rest?

[ActualRightWingPatriot]

You should be able to carry them or leave them in a safe as you desire. It's not the government's role to regulate this.

[OtisAH]

Dunno if my other reply will post or OT lost, but I misinterpreted a bit what you wrote so I'll just ask "What if I own a dozen firearms? Do I carry them all with me?"

[Chem_Geek]

Assuming good faith on your question, yes - it's much more rapid detection of a firearm stolen from a home, than a vacation firearm stolen from a vacation home which might see a visit every, say, 90 days vs. daily.

And, I agree with Jerry B.'s statement that it sure *seems* as if you'd approve of one less firearm in private hands.

[M.L.]

Meanwhile, there are over 100,000 non-citizens registered to vote in the State of Pennsylvania. Whoops! So much for your democracy.

http://bit.ly/2oqUbPm

[jjrzw72]

Allegations =/= Facts

[Rev. Arthur L. Kirkland]

You expect the distinction between partisan allegations in a pleading and reliable information to be recognized at a legal blog (right-wing legal blog)?

What are you, some type of properly educated, reasoning, establishment elitist?

[apedad]

ML, even if that's true, PA has approx. 12.82M people, so that comes out to.......approx. 0.78% of the population would be illegally registered.

OH NO!!! How can the UNION survive?!?!?!!?

[M.L.]

Dude . . . 100k is a difference that decides elections. Trump won PA by 68k votes. Many states were similar or even far lower.

Now compare that to our supposed "Russian meddling" . . . some illiterate Facebook posts that influenced precisely zero votes for zero impact on the election outcome . . . except for maybe all the colluding they did with Democrats.

[OtisAH]

If there are 100,000 "non-citizens" voting in PA, and Trump won PA by 68,000 votes, the electoral impact of that 100,000 is not at all what it should be.

[jph12]

How so?

[BillyG]

Remind me again, how many votes (and what % of votes cast) was the 2000 presidential election decided by in Florida? 2012 election in Ohio (or was it Indiana)?

[OtisAH]

Florida was decided by one vote, 5-4.

[BillyG]

Ah, you're one of those deniers...face it, Gore lost. Florida voted for Bush. The only thing SCOTUS did was say you had to recount all or none, not just the counties Gore wanted to.

[MatthewSlyfield]

By the time SCOTUS heard Bush v Gore, the deadline for the Electoral College to submit it's votes to Congress was just weeks away.

Had the recounts continued, Florida would have ended up with either no electors voting in the electoral college or or two competing electoral college ballots.

If no Florida EC ballot, neither Bush nor Gore gets a majority and the presidential election gets decided by the House of Representatives, which was under Republican Control.

If two are submitted, Congress decides which to accept and again, the House, the larger body was under Republican Control. Best case for Gore, both ballots would be disqualified by Congress.

In short, by the time that SCOTUS heard oral arguments in Bush v Gore, even if SCOTUS had found in favor of Gore, there was no possible scenario in which Al Gore becomes President.

[Brett Bellmore]

As I recall, the state legislature was already at work sending the official set of electors to the House, by legislative act, (As they are constitutionally entitled to do.) at the time the Supreme court butted in.

I can understand the Supreme court's interest in policing the mistakes of the judiciary, but in this case it was a matter for the House and the state legislature to resolve. Not everything is the judiciary's responsibility, and the original sin in the case was in fact an over-reaching judge.

[MatthewSlyfield]

@Brett Bellmore

As I said, by the time the case came before SCOTUS, there was no possible way left for Al Gore to become President.

[jph12]

Your chosen denominator makes no sense. The total population of Pennsylvania is completely irrelevant to the potential impact of ineligible voters. You have to compare them to the number of eligible voters, or possibly likely voters (but that get's into some hand waving).

Plus, Trump's margin of victory in Pennsylvania was roughly 68,236 votes. Are you really sure 100,000 voters can't make a difference? I believe multiple states were decided by around 1% of the actual voters, around the margin you are dismissing as irrelevant here.

And I'm betting you would have a problem with a voter id law that disenfranchised 1% of a state's eligible voters. Why is this different?

That being said, I bet most of these ineligible voters are simply the result of bureaucratic incompetence rather than an attempt to game the system.

[M.L.]

While I can't disagree on incompetence by bureaucrats, I wouldn't discount the existence of efforts to game the system. Scott Foval and Robert Creamer sure seemed to have something going when they got fired after talking on camera about busing in voters. Gina Rodriguez asked Obama in a televised interview about Dreamers and "undocumented citizens" who were "fearful of voting" and Obama gave a very reassuring answer - you have to parse the language of the question quite carefully to exclude any implication of illegal voting. Most suspicious of all is the unhinged and irrational opposition to voter ID.

[Chem_Geek]

"Most suspicious of all is the unhinged and irrational opposition to voter ID."

Tying together several threads in these comments, how about requiring *every* *single* "reasonable" gun control proposal to apply equally and instantaneously to voting? 🙂

[Rev. Arthur L. Kirkland]

One man's voter identification is another man's race-targeting voter suppression.

And, if the man is a half-educated Republican, it's the same man.

[Chem_Geek]

Or, in *your* case, posting blog comments.

[MatthewSlyfield]

Pennsylvania election results 2016

A total of 5,970,117 votes were cast in the 2016 Presidential election in Pennsylvania.

So 100,000 illegally cast ballots would be 1.6%

[jph12]

Gina Rodriguez is an actress who asked a poorly worded question (practically incoherent) during a fluff piece. I don't have any reason to believe she is particularly well informed, and I don't care what she thinks about immigration, voting, or pretty much anything else. And I don't blame Obama for not explicitly pointing out just how stupid her question is in his response. I'm willing to bet Gina Rodriguez is not leading an underground voter fraud campaign.

And if the Clinton campaign was organized and professional enough to coordinate the registration of anything close to 100,000 ineligible voters in a single state, they would have easily won the election.

[jph12]

This is an improperly placed reply to M.L.

[M.L.]

That's reasonable. I just take Gina's attitude and seeming wink about voter fraud as fairly representative of certain circles, including unscrupulous activists and operatives. There's plenty of evidence and cases showing that voter fraud exists at least in small amounts. There's not much evidence that it exists - or doesn't exist - in substantial amounts. And that's not surprising, since we really don't have any way to assess the scale of voter fraud.

[jph12]

Is Gina Rodriquez an activist or operative, or just another celebrity taking advantage of the bully pulpit we foolishly give to people like her?

I don't deny that voter fraud happens, and I have no problem with the typical voter id laws. But I would be shocked if a substantial fraction of the 100,000 non-citizens in Pennsylvania registered to vote as part of a coordinated campaign.

[Brett Bellmore]

That's not really true, there are ways. It's just that the Democratic party goes absolutely batshit any time somebody tries to conduct an absentee ballot audit. (Taking a list of absentee voters, and physically contacting them to confirm that they really did vote absentee.)

[Rev. Arthur L. Kirkland]

What makes you believe, or at least assert, that Democrats use absentee ballots more than Republicans? Most election lawyers see it the other way.

[MatthewSlyfield]

I would expect that to vary considerably from state to state.

[jjrzw72]

Curse those Democrats and their principled support of the right to vote.

[Rev. Arthur L. Kirkland]

It's one important feature of the liberal-libertarian alliance that has forged America's progress throughout my lifetime.

[jph12]

Democrats with a principled support of the right to vote support things like voter id that help ensure only eligible voters vote. Allowing ineligible voters to vote is just as destructive to democracy as improperly preventing eligible voters from voting. That's one of the reasons the 2005 bipartisan commission on voting recommended requiring photo id to vote.

[Rev. Arthur L. Kirkland]

What makes you believe, or at least assert, that Democrats use absentee ballots more than Republicans? Most election lawyers see it the other way.

[ReaderY]

On the 2nd Circuit gun permit case, it does seem a little difficult to understand how refusing access to out-of-city firing range presents a health risk given that in-city ones don't. I agree it would survive rational basis, but simply invoking "health" doesn't create a compelling interest in doing anything that can be remotely argued as related.

Similar, on the dormant commerce clause, I don't like it but it is current law. And given this, imagine a city automobile license that required you to keep your car within city limits. Suppose the 2nd Circuit said that because the law lets you visit any car repair shop you want, you just can't take your car with you and you're welcome to rent a car and get it repaired if you want to visit an out-of-city car repair shop. Would this really absolve such a law of dormant Commerce Clause implications?

[jph12]

Does the Dormant Commerce Clause apply to strictly in-state differential treatment or just differential treatment of in-state and out-of-state? My sense is just the latter, but I'm not sure I've ever seen any cases addressing it.

[ReaderY]

I had assumed that out-of-city implies out-of-state, especially since NYC borders NJ and is very near the CT border. Perhaps I should have said out-of-state explicitly. The 2nd Circuit's decision didn't rest on this distinction. It said that since the plaintiffs could rent guns for use in out-of-state target ranges etc if they wanted to visit them, the ordinance didn't impose any material restrictions on such visits and hence didn't implicate the dormant Commerce Clause.

[ReaderY]

On the Tennesee liquor store case, I'm inclined to agree with the dissent that the 21st Amendment overrrides the Commerce Clause and lets the states regulate liquor without regard to it. The amendment does not merely repeal prohibition, it also gives states control over alcohol in a way that expressly overrides dormant commerce clause considerations, flatly prohibiting importation of alcoholic beverages contrary to a state's laws. If the dormant commerce clause overrode state liquor law, this additional language would be a nullity. In my view, a state could flatly prohibit all out of state liquor if it wanted to.

[jph12]

The Supreme Court already decided largely against your view of the 21st Amendment in Granholm v. Heald (an Institute for Justice case) that dealt with different rules for shipping wine by in state and out of state wineries.

[ReaderY]

And on the 3rd circuit insider trading case, most people use stockbrokers to buy stock. If an insider has to be aware of the specific broker to be responsible for the stocks the broker purchases on behalf of the person the insider informs, them it would seem very, very easy to structure a communications arrangement so that the insider remains unaware of the broker. I would expect such arrangements to become the norm. Only the very, very stupid need be held responsible for the purchases. It is rare for sitting appellate judges to instruct would-be criminals how to structure their affairs to avoid responsibility for their crimes. But this opinion does precisely that.