Short Circuit: A roundup of recent federal court decisions

Fighter jets, horse soring, and climate stewardship.

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

In a recent letter to the state's judges, Ohio Supreme Court Chief Justice Maureen O'Connor decried "unfortunate practices in some state and local courts where fine, fee, and bail systems essentially operated on 'automatic pilot' with little, if any, regard for fundamental constitutional rights" and treated citizens like ATMs. IJ Legislative Analyst Nick Sibilla has the story.

• After exchanging "inner city" "pleasantries" with plainclothes Hartford, Conn. police officer driving unmarked car, former pro football player has the ever living crap beaten out of him. Second Circuit: For which—13 years later—he is entitled to $454k.
• Allegation: Court orders disturbed arrestee (who stole $5 worth of snacks) sent to mental hospital. Instead, he remains at Hampton Roads, Va. prison where guards beat him, turn off the water to his cell, which becomes covered in feces, urine. He dies of severe malnutrition. Fourth Circuit: His estate cannot sue the (former) head of the state's mental hospitals. (The suit is proceeding below against other parties.)
• The U.S., South Korea, and a U.S. arms contractor enter three-way agreement for contractor to upgrade South Korea's fighter jets. Yikes! The price tag for the job comes in at way more than initially touted. South Korea: So the contractor has to pay us an agreed-upon $43 mil punishment for failing to use its best effort to keep things running smoothly. Fourth Circuit: Not so. But we'll not enjoin a parallel suit that's proceeding in Korean court.
• In unmarked cars, Southaven, Miss. officers box in motorist during an attempted marijuana sale. They shoot, kill the driver (but fortunately miss the three-year-old in the car). Allegation: The officers didn't identify themselves; the driver's attempts to maneuver the car away from the officers did not put them in harm's way. Fifth Circuit (2017): The man's estate can sue the officers. Fifth Circuit (2018, same panel, on a petition for rehearing): Never mind.
• Michigan funeral home owner fires employee who intends to transition from male to female. Can the EEOC sue the owner, who believes one's sex is an immutable God-given gift? The Sixth Circuit says yes; firing someone for failing to conform to stereotypical gender norms is illegal discrimination, as is firing them for transitioning genders, and religious convictions to the contrary don't change that here.
• Michigan doctor pleads guilty to fraud. But wait! No one warned him he could lose his citizenship, be deported back to Syria. Can he withdraw his plea? Sixth Circuit: Indeed so. Dissent: The warning rule that the majority relies on is for non-citizens and so not applicable to the doctor, a citizen. Moreover, it's not certain, or even likely, that he'd be stripped of citizenship. And if he were, he might be exiled to Egypt, Sweden, or the United Arab Emirates (where his parents and siblings live), rather than Syria.
• The feds subpoena ownership records from Tennessee Walking Horse association for 218 show horses that show signs of being illegally "sored" (an intensely painful method of eliciting a high-stepping gait). Association: Happily! Here are the records. Also, here's a $300 invoice for our time. Feds: We're not paying that. Association: Then we'll not comply with further subpoenas. Sixth Circuit: You will.
• Chattanooga, Tenn. police say defendant confessed in unrecorded interrogation to stealing gun. There is no other proof, and the defendant denies confessing. On the stand, the prosecutor repeatedly calls the defendant a liar, forces him to characterize the officers' testimony as a lie. He's convicted. Sixth Circuit: The prosecutor's comments were plainly improper but not flagrantly so. Moreover, defense counsel only objected to some of them. No need for a new trial. Dissent: "I would not rest twenty years of imprisonment on a missed objection." (More on improper-but-not-flagrant conduct at Sixth Circuit Blog.)
• Transgender man seeks to change his legal name (from Jane Doe to John Doe) but cannot because Indiana law governing name changes requires proof of U.S. citizenship; he is not a citizen but an asylee. Is the law unconstitutional? No need to reach that, says two-thirds of a Seventh Circuit panel; he didn't assert the proper claims against the appropriate people to be in federal court.
• Allegation: Clinton County, Mo. officers arrest man without warrant or probable cause; they beat him repeatedly without cause; they break his arm, withhold medical attention. Video of one beating captures only his screams for help because the camera is pointed at the ceiling. Eighth Circuit: He can't sue the officers because the operative complaint doesn't include a sentence that "expressly and unambiguously" presses claims against them in their individual capacities. And no suing their supervisors because there is insufficient evidence such beatings are common practice at the jail; the proffered statements from other detainees are inadmissible hearsay. (No mention of the camera in the ruling; comes from oral argument around 12:15.)
• Conway, Ark. officers shoot at knife-wielding, mentally ill stabbing suspect 21 times, render him a paraplegic. Officers: Video (played in slow-mo) shows he lunged at us. Plaintiff: It does not. District court: A jury should decide. Eighth Circuit: Affirmed.
• Twenty-one young plaintiffs sue the feds, including the President, claiming the gov't exposed them to the dangers of climate change in violation of their constitutional right to inherit a "well-stewarded" climate. They ask the court to order the feds to immediately cease "authorizing" the use of fossil fuels and to "swiftly phase out" all domestic carbon dioxide emissions, among other things. District court: The lawsuit will proceed to discovery and then to trial. Feds: That is so outrageously wrong that a (rare and extraordinary) mandamus order terminating the suit is appropriate. Ninth Circuit: The suit can proceed.
• Allegation: Iraq War veteran openly carries holstered handgun while running errands. Englewood, Colo. police approach him with guns drawn, detain him for four hours, prevent him from recording the interaction, cite him on bogus charge (that is later dropped). Tenth Circuit: By detaining him long after it was clear he wasn't threatening anyone, the officers violated the Fourth Amendment. He can't sue, though; the right wasn't clearly established. Also not clearly established: the Second Amendment right to open carry and the First Amendment right to record the police. Case dismissed.
• In unmarked cars, Orlando, Fla. officers box in car whose occupants are suspected of not wearing seatbelts; the driver drives off; the police catch up, ram the car, and shoot the driver dead. Allegation: Contrary to the officers' testimony, the driver wasn't about to run over an officer when he was killed; he couldn't have, as the car's engine had died after police rammed the vehicle. Eleventh Circuit: Qualified immunity. (H/t: Police4aqi.)
• Selma, Ala. officer shoots hatchet-wielding, mentally ill septuagenarian, killing him. Eleventh Circuit: Qualified immunity. Video shows he moved towards officers after refusing numerous orders to drop the hatchet.
• Man seeks to build two houses on San Mateo County, Calif. lot, begins applying for permits in 1999. California Appeals Court: And he must continue applying; in spite of (in the words of the trial court) a "cavalcade of delays and errors," his suit is not yet ripe. (Via Gideon's Trumpet.)

When Jasna Bukvic-Bhayani, a North Carolina makeup artist, announced plans to open a makeup school, the state's Board of Cosmetic Art Examiners paid her a personal visit. The board had interpreted its regulations to mean that it was illegal for Jasna to operate her school—unless she also taught her students 500 hours of additional curriculum on subjects totally unrelated to makeup (like aromatherapy, hair removal, and facials). Moreover, Jasna would have to spend at least $10,000 on unnecessary equipment. After almost a year of trying to convince officials the rules didn't make sense, Jasna sued last August. This week: victory. At court-ordered mediation, the board agreed that Jasna's school need not also teach esthetics; standalone makeup schools are now legal in the state. Read more here.

Comments

[Toranth]

"Allegation: Clinton County, Mo. officers arrest man without warrant or probable cause; they beat him repeatedly without cause; they break his arm, withhold medical attention. Video of one beating captures only his screams for help because the camera is pointed at the ceiling. Eighth Circuit: He can't sue the officers because the operative complaint doesn't include a sentence that "expressly and unambiguously" presses claims against them in their individual capacities. And no suing their supervisors because there is insufficient evidence such beatings are common practice at the jail; the proffered statements from other detainees are inadmissible hearsay."

Reading this, it sounds like Mick, representing himself, simply didn't know how to phrase the complaints correctly, so the defendants were able to nitpick enough the get the case dismissed on procedural grounds.
Is there more to this case, or is it really as bad as it sounds?

[Rossami]

How in the name of God is any court still saying that the First Amendment right to record police is not clearly established?

Qualified immunity is a broken double-standard. It is past time to abolish it.

[ActualRightWingPatriot]

Not to mention that whether or not there is a 2nd Amendment right to open carry a handgun, there is a right not to be detained for something that isn't a crime there. Since they knew that open carrying was legal there, there was no probable cause for a stop of any sort, much less one for four hours.

[VinniUSMC]

Yeah, the Tenth Circuit made an egregious error here, regarding the 1st, 2nd and 4th Amendment.

WTF?

[Kyfho Myoba]

You know the answer,

"Because, FUCK YOU, that's why." (FYTW)

[DjDiverDan]

I took a look at that Oregon case seeking an injunction to force the Federal Government to immediately stop all use of fossil fuels - what an incredible pile of pseudo-scientific idiocy! The Ninth Circuit might have been right that it didn't meet the legal standards for a mandamus, but my question is more basic - what in hell are we doing with Federal District Court Judges who allow that kind of idiocy to tie up the courts?

[Michael Ejercito]

The underlying district court ruling is a hoot.

http://static1.squarespace.com......Aiken.pdf

Exercising
my
"reasoned
judgment,"
id
at 2598,
I have
no
doubt
that
the
right
to
a climate
system
capable
of
sustaining
human
life
is
fundamental
to
a free
and
ordered
society.
Just
as
marriage
is the
"foundation
of
the
family,"
a stable
climate
system
is quite
literally
the
foundation
"of
society,
without
which
there
would
be
neither
civilization
nor
progress."
Id
(quoting
Maynard
v.
Hill,
125
U.S.
190,
211
(1888));
cf
Minors
Oposa
v.
Sec'y
of
the
Dep't
o/Envt'l

Res.,
G.R.
No.
101083,
33
I.L.M.
173,
187-88
(S.C.,
Jul.
30,
1993)
(Phil.)
(without
"a
balanced
and
healthful
ecology,"
future
generations
"stand
to
inherit
nothing
but
parched
earth
incapable
of
sustaining
life.")

[Careless]

" Plaintiffs filed this action against defendants the United States, President Barack Obama, and numerous executive agencies. Plaintiffs allege defendants have known for more than fifty years that the carbon dioxide ("CO;') produced by burning fossil fuels was destabilizing the climate system "

Yes,

[Careless]

Ok, that's weird.

"yes,

[Careless]

hmm... It appears I cannot type "less than 5"

Anyway, less than 5 year old Obama was not, in fact, a renowned proponent of the early global warming hypothesis

[DjDiverDan]

Plaintiffs make assertion after assertion based upon what "scientists" allegedly "know" without disclosing just what "scientists" they are talking about, or identifying any evidence. They assert that CO2 is responsible for "dangerous global warming", despite the fact that there is virtually NO persuasive evidence that higher levels of atmospheric CO2 contribute more than an imperceptible smidgeon of warming. The assertion that such warming is "dangerous" is based upon absolutely nothing more than a naked status quo bias - the assumption that today's climate is the best of all possible world, and that any change is bad. They assert that CO2 is a "pollutant", despite the fact that CO2 is essential to all life on Earth, that CO2 levels below 150 ppmv would shut down photosynthesis and result in the extinction of about 90% of all plant species on Earth; that it wasn't until CO2 levels reached the abnormally low concentration of 800 ppmv (about double today's rate) that plants using the C4 type of photosynthesis evolved to deal with such starvation levels of CO2; that the increase in CO2 levels from 300 ppmv to 400 ppmv have been responsible for nearly 40% of all increases in agricultural productivity over the last 50 years. AGW is a religious-based idiocy, and those clowns want to make it the law of the land. Isn't there a First Amendment problem with that?

[JasonT20]

"Plaintiffs make assertion after assertion based upon what "scientists" allegedly "know" without disclosing just what "scientists" they are talking about, or identifying any evidence."

It is interesting that you then follow this with all kinds of assertions without once citing how you know any of it. But setting that aside . . .

"The assertion that such warming is "dangerous" is based upon absolutely nothing more than a naked status quo bias - the assumption that today's climate is the best of all possible world, and that any change is bad."

Hardly. It is objectively a problem for sea levels to rise and potentially displace millions of people living near sea level. http://journals.sagepub.com/do.....7807076960

"They assert that CO2 is a "pollutant", despite the fact that CO2 is essential to all life on Earth..."

Your whole line of argument here is a non sequitur. It is like you are arguing that because of photosynthesis, the greenhouse effect can't also be real. That's why it would be pointless for me to argue any of the specifics you list after the quoted statement.

"AGW is a religious-based idiocy..."

People that are religious seem to think that religious belief is a good thing. I'm glad you agree with me that it is foolish to believe in things without evidence. Now, if only you would work on your ability to evaluate evidence, we might get somewhere.

[DjDiverDan]

You better double check your own evidence - as well as your own logic "it is objectively a problem for sea levels to rise and potentially displace millions of people living near sea level." First, according to NASA satellite data, there has been no measurable increase in the rate of sea level rise in the last 15 years - less than 2 mm per year. Second, people moving away from encroaching sea coasts is not "objectively a problem", it's normal human adaptation, something that is being ignored by every IPCC "analysis" which purports to show that warming is a "problem."

Sorry if I have offended your own religious belief in AGW. I GUESS it's not really any sillier than believing in voodoo, psychics or astrology.

[JasonT20]

"First, according to NASA satellite data, there has been no measurable increase in the rate of sea level rise in the last 15 years - less than 2 mm per year."

This is why you should always cite your sources when you make claims like that.

New Study Finds Sea Level Rise Accelerating

Seems like your information is out of date.

Also, don't think that I didn't notice how you completely avoided my critique of your 'CO2 is life' type of argument. Should I take your silence as acknowledgement that it is logically faulty?

As for it being "normal human adaptation" to move away from encroaching sea coasts, why would encroaching sea coasts be normal?

"Sorry if I have offended your own religious belief in AGW."

You can keep calling a reasoned acceptance of AGW based on evidence a "religious belief" if you want to, but that doesn't make it so.

[Careless]

As for it being "normal human adaptation" to move away from encroaching sea coasts, why would encroaching sea coasts be normal?

I don't want to get into this argument, but it is a fact that it's been normal for all of recorded history and well before that, as well.

[Careless]

"Rather, they ask the Court to declare the United States' current environmental policy infringes their fundamental rights, direct the agency to conduct a consumption-based inventory of United States C02 emissions, and use that inventory to "prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric C02 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend"

Out of curiosity, what is the rule about judicial decisions that would requite the US to nuke the crap out of every other country of any significance in the world to eliminate their carbon emissions, as what the judge is suggesting is simply impossible through unilateral means inside the US?

[VinniUSMC]

Do we expect better from the Ninth Circuit?

Totally no activist judges there. /sarc

[Vandalia]

How could the Fourth Circuit consider that it was even plausible that a Federal Court (or a State Court for that matter) had the ability to issue an injunction preventing another country's judicial system from hearing a case? I accept that parties in a case (in this case BAE) routinely ask courts for impossible remedies.

That would be roughly equivalent to the Vatican "Supreme Court" (The "Signatura") issuing a Writ of Mandamus requiring the US Supreme Court to issue a judgement in favor of Phillips in the Masterpiece Cake v Colorado Civil Rights Commission case.

[Michael Ejercito]

Sometimes courts have to state what is fucking obvious.

[Dave W.]

Always love the Short Circuit posts here on Volokh, but, that Police4aqi blog is straight fire. Great work, Mr., or Ms., Allday.

[Greg F]

They ask the court to order the feds to immediately cease "authorizing" the use of fossil fuels and to "swiftly phase out" all domestic carbon dioxide emissions, among other things.

Does that mean the little bastards that brought this suit want the Fed to suffocate them?

[FlameCCT]

Sounds to me like they want to give up their i-Phones, i-Pads, and all other electronic devices since much of the material is from fossil fuels not to mention the electricity needed to fuel them is also from fossil fuels. Perhaps they don't realize that they will have to walk or ride a bike everywhere, find another way to heat/cool where they live, even have trouble getting goods and services from other parts of the State and country since vehicles, trucks, trains, ships, and planes will no longer be an option since they too operate on fossil fuels, even the electric vehicles.

[FlameCCT]

Oops, forgot to mention they would have to find other forms of clothing as most synthetic fibers come from fossil fuels too. And the list goes on and on.....

[y81]

If you read the actual opinions, you will see that a number of cases, especially those involving claims against the police, are not fairly described. I don't think I ever read anything by John K. Ross before, and now he has destroyed his credibility on our very first encounter, so I will discount everything he says in the future.

Perhaps Mr. Ross failed to allow for the fact that many if not most Volokh Conspiracy readers are lawyers, trained to read skeptically and thoroughly, and to detect and distrust one-sided presentations. It's a good rule for litigators, which I have stated before: your goal should be to make the court believe that you are the voice of reason, on whom the court can rely for honest and impartial summaries of the facts and the law. That way, the court will tend to discount your adversary's presentations as tendentious and dishonest, and credit yours. Instead, Mr. Ross finds himself discounted. Fortunately, this isn't a litigation, so he won't lose money as a result.

[mse326]

I agree with you general point of being critical. But as someone without the time to read all these opinions can you indicate which ones you are referring to?

[Rossami]

As someone who has read a number of the actual opinions, I find Mr Ross's descriptions to be punny but generally accurate given that he is trying to summarize an entire case including appeals in 3 sentences or so. And his descriptions of abuses by the police are all too often disturbingly accurate.

[David Nieporent]

And of course he links to every decision. The pithy summaries are designed to get people to read the decisions, not to be plugged into a legal brief.

[OtisAH]

Once you've lost y81, you've lost the world. I wonder if Mr. Ross knows what he'll do now that his legal career is over?

[OtisAH]

I like seatbelts, I wear seatbelts, and believe everyone should. But I remember when states began pushing seatbelt laws, police bent over backwards explaining how seatbelt violations would never be used as primary enforcement. Twenty-odd years later, "Click it, or ticket" becomes a thing and nobody but me seems to recall the earlier "promise" (which I never believed in the first place).