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Short Circuit: A roundup of recent federal court decisions

An anticipatory warrant, a ban on Matisse, and scary bikers.


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

This week on the podcast: a deep dive into the D.C. Circuit featuring special guests Professor Aaron Nielson, a wanted "Anti-Administrativist" and Sage of the C.A.D.C.; and Cate Stetson, Hogan Lovells' legendary appellate litigator who is one of the D.C. Circuit's most frequent (and successful) litigators. Hear Aaron and Cate discuss what makes the D.C. Circuit unique and talk about big cases coming out of the court. Plus: a lightning round of trivia about the current judges. Click here for Android. Click here for iTunes.

  • New York officials use highway toll funds to pay for upkeep of the state's canal system, a scenic byway that no longer supports commercial traffic. Commercial truckers: The money should go to the roads. Second Circuit: Congress intended to permit the canal funding; no matter that the state did not make this argument until several years into the litigation.
  • Allegation: Police shoot, kill armed and mentally ill Colleyville, Tex. man next to his teen daughter, who'd been trying to de-escalate. An officer picks her up, slings her over his shoulder, flings her over a fence, and puts her in a patrol car for two hours. Other officers proceed to interrogate her at the station for hours, force her to write out a statement, and prevent her from seeing family. Can she sue the officer who picked her up? Fifth Circuit (2017): No. Can she sue one of the officers who interrogated her? Fifth Circuit (2017): Yes. You can't detain an innocent witness like that. Fifth Circuit (2018): The development of evidence changes things—the daughter was compliant, the officers thought she consented, so qualified immunity. (We discussed the case on the podcast.)
  • DEA agents obtain "anticipatory warrant" to search Belvidere, Tenn. home once undercover agent hand delivers package containing meth "to Perkins." Yikes! The agent hands the package to Perkins' fiancée. Sixth Circuit: Suppress the evidence. The "replace-some-words canon of construction has never caught on in the courts."
  • Corrections officers in Nashville, Tenn. remove mentally ill inmate from his cell, pin him down, tase him. He dies of asphyxiation. Excessive force? Insufficient training? Jury: No. Sixth Circuit: New trial. The defense should have turned over a resignation letter (uncovered after trial by The New York Times) from an officer who participated in the cell extraction. The letter undermines defense witnesses' credibility.
  • Inmate at St. Louis, Mich. prison is disciplined for creating a disturbance after he received only a half portion of food at mealtime; the discipline is upheld after a hearing. Inmate: I created no disturbance; a guard was retaliating against me; the hearing officer didn't review video of the incident; I am still getting half portions of food. District court: Can't sue. A hearing officer's finding of misconduct automatically "checkmates" all First Amendment retaliation claims. Sixth Circuit: This circuit hasn't adopted the "checkmate doctrine," and we now reject that doctrine. The inmate can sue.
  • Allegation: Man waiting at Des Moines, Iowa cab stand sees another man throw a woman to the ground. The first man questions the second—but in a shocked manner, not a threatening one. Yikes! The second man is an off-duty cop; officers pepper spray, beat up the first man. (He's charged with several misdemeanors and acquitted on all counts.) Eighth Circuit: He can sue the officers.
  • Pursuant to no-porn policy, South Dakota prison officials forbid inmate (serving life sentence for murder) from receiving book on Matisse and Picasso, images of Renaissance art nudes, erotic novels, and a poster of the Coppertone suntan-girl advertisement, among other things. A First Amendment violation? District court: Totally. Eighth Circuit: Maybe. Maybe not. Remanded for further consideration.
  • Customer aggravates Burlington, Iowa convenience store worker, a young woman, with suggestive commentary. She takes a smoke break to evade him; he follows her outside and continues to aggravate. She waves her cigarette at him to back him off; instead, he steps into it. He says she burned him intentionally. She's fired. Eighth Circuit: She can't sue the store.
  • Kearney, Neb. probation officer reminds his female probationers he can have them sent back to prison, sexually abuses them. Eighth Circuit: No need to reconsider his conviction or nine-year sentence.
  • Allegation: As a ball rolls toward a female student, Smith Center, Kan. teacher announces to high-school gym class, "Don't worry about [Jane Doe], she's used to having balls between her legs"—part of a pattern of lascivious, inappropriate behavior on his part. Tenth Circuit: Jane Doe can sue the teacher.
  • From a reasonable distance, man takes photos, video of overturned vehicle (as many other bystanders are doing). Without warning, a Martin County, Fla. officer snatches the man's phone from his hands. The officer arrests him when he declines to leave the scene without the phone, saying the phone contains evidence. Eleventh Circuit: The man can sue the officer.
  • Police may approach private homes without a warrant to attempt to engage residents in casual conversation. Eleventh Circuit: Ten Miami officers, who approached a home under cover of darkness, assumed "tactical positions," and then broke down the door, were not engaged in a casual "knock and talk." But no need to suppress the evidence.
  • To lobby against passage of bill to legalize open-carry, police distribute photos to Florida lawmakers of scary biker gang members who have concealed-carry permits. (The bill fails.) Bikers: Using our drivers' license photos in that manner violates the Driver's Privacy Protection Act. Eleventh Circuit: No, there's an exception for lobbying when done by a gov't official.

Randy Sowers wants to sell pure, pasteurized, and perfectly safe all-natural skim milk from his Maryland dairy farm and creamery. But if he honestly labels it "skim milk," the FDA will fine him or shut him down. According to the feds, unless you inject vitamin supplements into skim milk, you can't call it "skim milk." Randy doesn't want to add artificial ingredients to his milk, so the FDA insists he label it "imitation." Preposterous! The First Amendment protects the right to speak truthfully to customers, so this week, Randy filed a lawsuit challenging the FDA's misleading labelling requirements. Click here to learn more.

NEXT: Announcing the Cooley Book Prize

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47 responses to “Short Circuit: A roundup of recent federal court decisions

  1. The people in government at the FDA and USDA have ruined our food economy and our health.

    They need to be held accountable.

    1. Okay, I’ll take the bait. In an alternate universe where the FDA’s (generally bad) diet recommendations never existed, would Americans be less fat? And how has the USDA ruined the food economy, I’m asking that out of genuine ignorance? Are you suggesting “regulatory capture”?

      As for holding them accountable…if one could show willful malfeasance on the part of career bureaucrats, maybe.

      1. Their continually evolving and contradictory food guidelines are evidence enough of incompetence, regardless of any hypothetical alternate history speculation.

        1. That is how science works.
          It points to some flaws in peer review, but I don’t know that this means we should never try to make science-based policy.

          Though (and correct me if I’m wrong) I’d venture where you come from is less about making good policy and more the moral stand against most governmental action.

          1. “That is how science works. It points to some flaws in peer review, but I don’t know that this means we should never try to make science-based policy.”

            One of the problems society has with using science to productively make policy is that we want policy to operate on a much shorter time scale than science can reliably produce results. The dietary recommendations are a good example. The scientists notice, say ‘Hmmm… high fat diets seem correlated with heart disease’, and the science oriented policy makers (present company excepted, I’m sure!) rush in with ‘high fat diets are bad!!!’.

            Then the scientists start noticing all the exceptions …’Hmm…, olive oil is a fat but doesn’t seem bad …some populations eat a lot of fat but don’t get heart disease …maybe sugar (not a fat!) is a factor, …etc, etc, etc’.

            We haven’t adequately communicated to the populace at large that science slowly fumbles forward to the truth, and the truth is usually more complicated than it appears initially, and that the one out of a hundred study that shows power lines might cause cancer is to be expected even if they have nothing to do with cancer.

            This is bad because the public then starts to think ‘those doggone scientists can’t make up their minds’ and starts to distrust science, and that’s pretty bad in the long run.

            (in fairness, journalism deserves much of the blame as well; they don’t as a rule seem to understand much about science or statistics)

            1. Your point regarding society invoking science blindly is absolutely true. But I’m not sure it follows that we see that effect in federal policy, or at least not as a primary driver. The timescale of agency policies is much longer than the latest diet fad derived from the latest incremental study.
              Not that the feds don’t get stuff wrong, but that when they do it’s based on pretty good consensus-based science.

              Though of course pretty good science can sometimes still be wrong.

              The popular misunderstanding of how science works is almost inevitable, IMO, as it’s people finding what they want in an authority they trust. How corrosive that will become remains to be seen, but I certainly the ‘scientists are all liberal eggheads with an agenda’ types have been around long before this problem cropped up.

              1. “The timescale of agency policies is much longer than the latest diet fad derived from the latest incremental study.”

                Kinda disagree – and the changes in dietary recommendations are a good example. I’d grant that there was consensus, but maybe we’re being too quick to jump to that consensus.

                From maybe 1850 to 1950, science was the goose that kept laying golden eggs, one right after the other – steam engines, germ theory, anesthesia, vaccines, antibiotics, radio, electricity, the list just goes on and on. The public got in the habit of trusting scientists like medieval people trusted the clergy, maybe more so. They were never wrong. And then along came Silent Spring, and dietary rules that change every couple of years, and Vitamin E is the ticket, then it’s not, and watch out for global cooling (from all the pollution), then global warming, and cigarettes are a good way to lose weight, then they aren’t, let’s all take the radium cure, oops, let’s not, etc, etc. Science needs to get rather more conservative about what it’s promising – replicate things a few more times, and be a little more careful with the predictions, or people are going to lose faith – and that would be pretty bad.

                1. Don’t you make my point for me – the dietary rules, Vit. E, global cooling, cigarettes as diet aid, radium cures etc. never made it into public policy.

          2. This is probably why you failed as a physicist. This isn’t how science work. This is why the replication percentage for studies such as those used by the FDA are lower than just making a coin flip.

            Science shouldn’t be based on p-statistic hunting.

            It is the literal opposite of science. Finding very loosely correlated variables by continually excluding certain sets isn’t science. Writing abstracts that are not well backed by your actual results is not science. That is PR. There is a reason many of these studies end up being unable to be replicated. Repeatability is a key attribute of science that much of the dietitian community completely ignores.

            1. Thanks for letting me know why I failed, Jesse. I always like comments that start out trying to personally wound me!
              Luckily, I’ve long ago come to peace with my inadequacies in theoretical physics. Is this the sort of person you want to be?
              The very fact that you point to a single point as the problem with science should be a red flag. What about reproducibility, or the issues inherent in peer review, or the incentive problem of private industry-driven research?

              Lets return to the OP. The FDA’s diet recommendations are from outmoded science on carbs. The court is still out on how bad carbs are, but it’s pretty clear they shouldn’t be on the bottom of the food pyramid. I don’t think that misconception came from improper use of p-values, or even from bad science.

              The question I’m seeing asked and answered is whether or not it’s worth it to try based on the best evidence you have. (Note that cutting-edge recent studies will not be that evidence).
              Sam doesn’t want the government to try, pointing to the problem being science-based governmental regulation being worse than the infallible market. I disagree – policy guardrails are necessary for a capitalist society to function well. And those guardrails are best made when informed by both science and the values of society.

      2. You think in the stinking, steaming pile of FDA and USDA regulations we won’t find any corruption or influence peddling?

        If find that hard to believe.

        1. I do like the backpeddling from ‘hold entire government agencies accountable!’ to ‘government corruption is a thing that exists.’

  2. So, if I understand correctly, the prudent police officer should treat a teenaged witness to her father’s violent death at the hands of police as roughly as possible (throwing over fence, confining to police car for two hours, and then badgering her for hours while she’s cowed enough not to object to their demands), so that when the court looks at it they will excuse the grossly inappropriate behavior because the young lady was “compliant” and so the police didn’t know they were violating her rights. Goodness, this makes me ill. (Disclosure: Mom of a teenaged girl.)

    1. Yes, that case is really, really disturbing. Because she was compliant, she can’t sue. But if she was NOT compliant, the cops could have shot her, and then her family could not sue. Joseph Heller’s Catch 22 had nothing on the Catch 22 created by the courts to excuse oppressive cops.

      1. Well you know, cops have such a hard life that if they even had to follow basic rules of human behavior, or even the law, it might chill them from doing their jobs. The doctrines of judicially created privileges, like both the qualified immunity that cops enjoy, and the absolute immunity that prosecutors and judges enjoy, really have no place in a free society. Few things scream “all animals are equal, but some animals are more equal than others” more than than that.

        You’d think the rules would go the other way. You’d expect judges and prosecutors and cops to know the law better than the common citizen. Instead, our Supreme Court assumes the former can’t do their jobs if they had to be held accountable to the law.

        1. Apparently, the less the police know about what is or is not clear violation of Constitutional rights, the better off they are, since the requirement that a “reasonable officer” would have known offers some protection.

          Now I understand that the standard is not what the particular officer should have known, but what a “reasonable” one would have known.

          But there is a problem here. One presumes that LEO’s get some sort of training in these matters, because they have to understand them better than the average citizen. So in defining reasonable the court has to make an assumption about the level of training received.

          Where in the process is this addressed?

  3. “Ten Miami officers, who approached a home under cover of darkness, assumed “tactical positions,” and then broke down the door, were not engaged in a casual “knock and talk.” But no need to suppress the evidence.”

    Immunity granted, one assumes, under the evolving doctrine of knock DOWN and talk.

  4. This is a nice way to summarize appeals court opinions.

    Some people do it more confusingly – “the Sixth Circuit overturned a trial judge who dismissed a lawsuit against government officials who” etc.

  5. I think there may be a genuine consumer interest in not unwittingly buying milk that lacks the food value you were expecting. But on the other hand there has to be a better way of labeling it than “imitation”. Perhaps “low-vitamin skim milk”, along with an appropriate disclaimer about suitability for children.

    Also: why is open carry controversial in situations where concealed carry is already permitted? Is it just that it allows people to carry bigger and presumably more powerful weapons, or is there something I’m missing?

    1. How about holding ‘real’ milk to the same standard and require it to be labeled ‘ heated processed cow juice with mandated additional artificial ingredients’?

      Open and concealed carry are both constitutional rights, so it is imperative to the gun grabbers to make an artificial difference as part of the ‘we only want reasonable limits on ****’ blind.

      1. I was under the impression that the added vitamins in question were to replace those taken away when the milk was skimmed. No?

          1. Can anyone point to the specific regulation in question? The only document I can find suggests that this is exactly the reason.

            “As noted in the November 9, 1995, proposal (60 FR 56541 at 56545), and reiterated
            in this preamble, lower-fat dairy products made according to the
            general standard may not be nutritionally inferior to the full fat
            product that they resemble and for which they substitute.”

            1. Well to meet that standard in a scientifically/nutritionally valid way, they would have to put the fat back too.

          2. No, that is exactly the reason: Skim milk ordinarily lacks fat soluble vitamins, which exit with the cream. And the term you want is “synthetic”, not “artificial”, in as much as the vitamins might be made in a factory, but actually are real vitamins.

            “Unfortified skim milk” would probably be the best description, though.

            1. “No, that is exactly the reason: Skim milk ordinarily lacks fat soluble vitamins”,

              But, since there are other sources of those vitamins, it’s only a problem which needs to be “fixed” with synthetic vitamins because a government bureaucrat arbitrarily decided it was.

              1. See also, e.g., here.

                You can argue that public health isn’t important enough to justify this sort intervention if you wish. But it isn’t arbitrary.

                1. My argument is that this particular intervention is completely irrelevant and unnecessary to public health. And yes, that makes it arbitrary.

              2. Just because you don’t know the reason does not magically make it arbitrary.

                There were, historically, actual public health issues involving the health of children when they were fed deficient milk that caused the regulations to be enacted. The purpose of the regulations is to make sure that if parents give children “milk”, the kid doesn’t wind up crippled or dead because the parents didn’t understand that the “milk” they gave their kid doesn’t have the full micronutrient value of real milk. Thus, if you sell “milk” deliberately made less-than-complete, you must either restore its vitamin levels or label it in a way that will make it clear to parents that it is not equivalent of real milk.

                Piously declaring that there is no issue simply because “there are other sources of those vitamins” is declaring “I want babies to die because their parents are ignorant of the deliberate, manufacturer-caused vitamin deficiency of the milk they’re giving their child.”

                Now, there is of course a reasonable argument that it is improper to require this guy to call his product “imitation”, since it really is (incomplete) milk. Instead, something like a big red label of “WARNING: THIS MILK IS VITAMIN DEFICIENT. NOT FIT FOR CONSUMPTION BY CHILDREN” should be adequate.

                1. AK, the “libertarian”, everybody.

                2. It’s not “not fit for consumption by children.” That would imply it was poisonous.

                  A more reasonable, less moronic warning, assuming you absolutely must have the state mandate that we repeatedly tell people obvious things that they won’t read anyway and that are already implicit in the term “skim milk” is “UNFORTIFIED SKIM MILK, INCLUDING THIS PRODUCT, DOES NOT HAVE THE NUTRITIONAL VALUE OF WHOLE MILK, AND SHOULD NOT BE RELIED UPON AS A SOURCE OF VITAMINS D AND A.

                  Still statist, but at least not a filthy lying statist.

                  1. Are you assuming that everybody knows that children are at risk of serious health problems that can be caused by vitamin D and A deficiencies?

                    1. I’m assuming that people either know that, or they know the government guidelines that say “have x servings of milk a day” and can read the words “does not have the nutritional value of whole milk” and think “huh I guess this doesn’t count then,” or they know nothing at all about nutrition in which case their children will almost certainly not be drinking skim milk, especially some sort of yuppie organic skim like this.

                    2. That requires the consumer to put multiple pieces of information together and draw the correct conclusion, which is ridiculous – warnings of this sort should be clear and explicit.

                      I suppose something like “This skim milk product is not fortified. The FDA recommends that children drink only whole milk or fortified skim milk.” might be (barely) adequate, though personally I don’t see anything wrong with “not suitable for” which is after all perfectly true.

                      … just requiring it to be labelled “organic” does have a certain spurious appeal, since IMO everybody ought to know that means it’s rubbish. I actually considered suggesting that earlier, but nothing in the article suggests that the milk in question does in fact qualify as organic milk. Even if it does, no doubt there are non-organic skim milk producers with the same complaint.

                    3. ” I don’t see anything wrong with “not suitable for” which is after all perfectly true.”
                      Except that it’s completely false.
                      No more likely to harm them than water (which, for all intents and purposes, is what skim milk is).

                    4. The words “not suitable for” do not mean “will cause harm”.

              3. “But, since there are other sources of those vitamins, it’s only a problem which needs to be “fixed” with synthetic vitamins because a government bureaucrat arbitrarily decided it was.”

                Quite true, and the idea that every single individual food you eat has to be nutritionally complete by itself is madness.

                It still remains that the reason skim milk is, by government order, fortified with vitamins, is to try to restore it to the nutritional value of whole milk. That actually IS the reason, even if it’s a relatively silly reason.

                Only thing sillier is voluntarily drinking skim milk. Ghastly stuff.

                1. the idea that every single individual food you eat has to be nutritionally complete by itself is madness.

                  True, and if anyone were suggesting such a thing I would certainly be opposed. Fortunately, no one is suggesting that.

                  Can you make distinctions, or are you so incensed by any sort of regulation whatsoever that you are blind to reason?

                  Milk, precisely because it is a big part of the diet of children, and is processed in various ways, is a reasonable candidate for regulation to make sure it contains what parents expect it to contain. Not everyone is a student of nutrition.

            2. Synthetic and artificial are exact synonyms.

              1. They’re synonyms, but not exact synonyms. Compare Google’s definitions, artificial includes “contrived or false” which is a problem in this context.

    2. RTDA. Adding vitamins to skim milk is an exercise in futility that only the government could require.

      1. idgi. I checked the googles and still can’t tell. what’s the futility?

        1. Supplemental D in skim milk deteriorates, if exposed to light, slightly faster than natural D in whole milk. So skim milk packaged in transparent containers and transported, stored, and sold under normal conditions will have somewhat lower Vitamin D content than what it was supplemented to.

          Mendacious persons take this slight decline and pick their phrases to exaggerate it, as in the statement “the vitamins break down in skim milk before reaching consumers”, leaving the impression that it is all the supplemental vitamin, not a minority of it. Then gullible fools, like the author of the IJ press release linked in the OP, retransmit that as the line that “the FDA manages to confuse American milk drinkers without providing any health benefits.”

          After all, if the business in question had to admit that “We want to be able to avoid the costs of supplementing our skim milk without having to label it a way that would warn consumers that giving it to their kids instead of standard milk could cripple them”, well, even libertarians might see the merits of the FDA position. So the business that wants to sell a product without disclosing its defect goes ahead and lies about the viability of the government’s standard fix for the defect.

  6. I wonder if there is any use of government power against citizens, within or without the law, that wouldn’t pass the muster of the 11th circuit. I suppose in a country where “public use” can be interpreted as “possibly improved tax base”, “government use” can be interpreted as “people associated with one unit of government lobbying another unit of government to limit citizen rights to ensure its own power over them”.

  7. So could he use the UK term ‘skimmed milk’ with a label reading “skimmed milk, like skim milk only without the FDA mandated artificial additives”.