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Short Circuit: A roundup of recent federal court decisions

Meet and greets, La-la-land, and Ron Paul!

Through its "Bias Response Team," the University of Michigan investigates and punishes students for speech that might evoke "bothersome" or "hurtful" "feelings." Which runs afoul of the Fourteenth Amendment's protections against laws that don't give fair warning of what is and isn't prohibited. So argues Sheldon Gilbert, the director of IJ's Center for Judicial Engagement, over at The Weekly Standard.

  • Fifteen-year-old robs Norfolk, Va. house party at gunpoint. His two (adult) confederates plead guilty, get 10- and 13-year sentences. The teen goes to trial, gets 118 years plus six life sentences (with the remote possibility of geriatric release at age 60). He files a habeas petition arguing his sentence is too long, violates the Eighth Amendment. In the meantime, then-Gov. Bob McDonnell reduces his sentence to 40 years. Is the habeas petition moot? Fourth Circuit: Yes.
  • Man kills 6-year-old boy near Iowa, La. in 1992. Defense: He's mentally ill, could not have understood his actions. Trial 1: Guilty of first-degree murder. Overturned on appeal due to judge's missteps (used race in jury-foreperson selection). Trial 2: Acquit on first-degree murder (which requires finding of intent to kill) but convict on second-degree murder (which does not). Overturned on appeal due to judge's missteps (e.g., judge was absent during significant portions of the proceedings). Trial 3 (with a new judge): Guilty of second-degree murder, as he intended to kill the boy. Fifth Circuit: Double jeopardy. The jury in the second trial found he lacked intent. The state can charge him with some other crime that does not involve intent, but this conviction can't stand. (Related: After the victim's mother testified she didn't want to see defendant put to death, prosecutors allegedly tried to have her other child taken away from her. H/t: Ethan Brown)
  • Midway through a state-court murder trial, the court discovers one of the jurors is the victim's niece. Oops! The niece is dismissed, and the trial goes on after the judge asks the jury as a group whether the dismissed juror had talked to any of them and receives no response—which might have been error on a direct appeal in federal court, says the Sixth Circuit (over a dissent), but isn't enough to warrant habeas relief.
  • Collusion, financial intrigue, and under-the table payments for political endorsements. Naturally, we're talking about the 2012 Ron Paul campaign. Eighth Circuit: No need to reconsider any convictions.
  • Plaintiff spent 20 years in prison for murder after a San Francisco police sergeant allegedly fabricated evidence and manipulated a witness into falsely identifying him. District court: The sergeant isn't liable because the prosecutor exercised independent judgment in bringing the murder charges. Ninth Circuit: Right, but that judgment may have been based on the phony evidence. Remanded for trial.
  • Allegation: Activists used false pretenses to enter Planned Parenthood conferences and set up interviews, which the activists then surreptitiously recorded and mendaciously edited so as to make it seem like Planned Parenthood sells aborted fetal tissue, setting off a national furor. Activists: The suit is a Strategic Lawsuit Against Public Participation, meant to punish us for protected First Amendment activity. Ninth Circuit: The case can proceed.
  • Are Seattle's attempts to unionize Uber and Lyft drivers preempted by federal antitrust law? They very well may be, says the Ninth Circuit.
  • Allegation: Man flees from traffic stop on foot, clutching his waistband. He flings away an object, which turns out to be a gun. Several seconds later, a Riverside, Calif. officer shoots him in the back, paralyzing him. Ninth Circuit (over a dissent): Qualified immunity.
  • In Colorado, once city officials declare property "blighted," owners have 30 days to file a lawsuit—or they are barred from challenging the designation, which can trigger seizure of their property via eminent domain (for seven years). Question: Do officials have to notify property owners of a blight designation? Indeed so, says the Tenth Circuit, but it's up to owners to figure out they only have 30 days to object. In the instant case, Glendale, Colo. officials' failure to notify the owners of carpet store (that sits in the footprint of a proposed mall) violates due process.
  • The feds arrest, freeze assets of Casper, Wyo. physician accused of illegally prescribing medication. Uh oh, he needs that money to pay for his defense! District Court: Well, they didn't take ALL of his money. Tenth Circuit: That is not the test.
  • Two Muskogee County, Okla. jail officials are convicted for holding "meet and greets," where they beat up new inmates. District court: Such displays "of strength and control may have served a purpose in the control of disorderly inmates and the overall safety of the jail staff." The officers get below-guidelines sentences of one and two years. Tenth Circuit (over a dissent): Which isn't unreasonable.
  • Aurora, Colo. police run tags on car with broken tail light, discover the car was seized three weeks earlier in weapons-possession case and a man (a known gang member) associated with the car was arrested. They pull it over; the man is in it; they frisk him and find a gun. He's charged with being a felon in possession. Suppress the evidence? No need, says the Tenth Circuit. Though he was calm and compliant, officers were justified in patting him down to ensure their safety. Dissent: The gov't is going to use this decision to justify frisks in a much broader variety of circumstances than the ones here.
  • Florida prison officials bar inmates from receiving magazine that, in addition to covering criminal justice issues, publishes ads advertising services (like three-way calling, pen-pal solicitations, and people locators) that inmates use to conduct criminal activities. A First Amendment violation? The Eleventh Circuit, citing Oscar Wilde, says no. (For some more fun, Ctrl+F for "la-la-land." Or have a gander at Footnote 11.)
  • St. Pete Beach, Fla. officials encourage the public to trespass on privately owned beachfront property. Does the city have to pay the owners? Jury: You bet. Pay $1.5 million. Eleventh Circuit: Affirmed. And for its money, the city gets a permanent easement across the parcel.

This week, Arizona Gov. Doug Ducey signed into law a bill that creates a statewide licensing scheme for food trucks. Huzzah! No longer will mobile food vendors be forced to obtain separate permits—and comply with a dizzying array of varying rules—from each town, city, and county where they want to operate. The law also prevents municipalities from imposing egregious red tape, like mandates to move every few hours or stay hundreds of feet away from brick-and-mortar restaurants. Click here to read more.

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  • Brett Bellmore||

    "Allegation: Activists used false pretenses to enter Planned Parenthood conferences and set up interviews, which the activists then surreptitiously recorded and mendaciously edited so as to make it seem like Planned Parenthood sells aborted fetal tissue, "

    I personally find the supposed distinction between 'selling' fetal parts, and giving them away and getting money in return, unpersuasive.

  • Rev. Arthur L. Kirkland||

    Another joint meeting of Libertarians For Government Micromanagement Of Clinics and Libertarians For Government Control Of Uteruses is called to order . . .

    (Is that a table of birther memorabilia for sale just inside the door?)

  • NToJ||

    Do you understand the difference between selling for profit versus recovering your out-of-pocket expenses?

  • Brett Bellmore||

    Sure I do. The line I quoted ignores it.

  • Brett Bellmore||

    By saying that, I mean that they just assume that PP's version of what is going on is accurate, that they're not making a profit on the sales.

  • Rev. Arthur L. Kirkland||

    Brett Bellmore . . . getting to the truth of Planned Parenthood and Barack Obama's birthplace since . . . well, since he figured a black guy had a chance to be president.

  • JesseAz||

    Wow, you're schtick has grown so old you're just now going straight to "you're racist" now huh? Carry on with the ignorance, carry on.

  • JesseAz||

    Do you understand that Planned Parenthood has never offered to let an independent auditor show that fees rendered covers only actual costs? That in a large set of the cases revealed so far, Planned Parenthood does little more than provide a room for the recipient's workers to sort through, yet they charge not by the room but by the body part?

  • nonzenze||

    Yeah, and doctors charge $200 for little more than asking a few questions

  • Tatil Sever||

    $200 is too much of a bargain, what's wrong with that doctor?

  • Dark Night||

    "Last and most definitely least, PLN proposes that the Department follow
    New York's lead and simply attach to each issue of Prison Legal News a flyer
    reminding inmates not to use the prohibited services. Really? If all New York has to do to prevent inmate misconduct and crime is gently remind them not to
    misbehave, one wonders why that state's prisons have fences and walls. Why not
    simply post signs reminding inmates not to escape? If New York wants to engage
    in a fantasy about convicted criminals behaving like model citizens while serving
    out their sentences, it is free to do so, but the Constitution does not require Florida
    to join New York in la-la-land."

    Harsh. But pretty funny.

  • Harvey Mosley||

    "Trial 2: Acquit on first-degree murder (which requires finding of intent to kill) but convict on second-degree murder (which does not). Overturned on appeal due to judge's missteps (e.g., judge was absent during significant portions of the proceedings). Trial 3 (with a new judge): Guilty of second-degree murder, as he intended to kill the boy. Fifth Circuit: Double jeopardy. The jury in the second trial found he lacked intent. The state can charge him with some other crime that does not involve intent, but this conviction can't stand."

    Am I the only one who finds it confusing that the second jury found him guilty of second degree murder which does not require intent but the third jury could not convict on second degree murder because the second jury did not convict on first degree murder which requires intent?

  • mse326||

    I was coming here to ask this too. Does 2nd degree murder require intent or not? It seems to give mixed messages.

  • jph12||

    There are two types of second degree murders in Louisiana, one that requires specific intent and one that doesn't (felony murder). Both were at issue during the second trial, even though logically a conviction for specific intent second degree murder should automatically become first degree murder because the defense conceded that the murder satisfied the aggravating factor. The verdict form didn't distinguish between the two, listing only guilty of second degree murder. Because the jury logically couldn't have found him guilty of specific intent second degree murder without also finding him guilty of first degree murder (which they acquitted him of), the Fifth Circuit held that the second jury conclusively determined that he was guilty of second degree felony murder without specific intent.

    But during Trial #3 Louisiana dropped the felony murder charge because apparently the applicable felony murder law at the time of the murder was more restrictive than it was at the time of the trial, which had been missed during the first two trials. So he might be facing Trial #4, but it probably won't be for murder.

  • Voize of Reazon||

    The summary is not quite right, in Louisiana 1st degree murder requires specific intent plus an aggravating component. 2nd degree murder includes murder with specific intent but without an aggravating element, or some formulations without specific intent such as a killing incidental to a robbery or kidnapping. At the second trial the charge was 1st degree murder (with the aggravating element being the age of the victim), and the defendant was found not guilty by virtue of lack of intent. In the third trial the charge was the 2nd degree form that does require intent, but the issue of intent was precluded by the result of the second trial.

  • Rev. Arthur L. Kirkland||

    Rules for food trucks? Sounds like commie socialism!

    One of my neighbor's children was fired by a food truck manager recently for using water to wash her hands upon returning to work after using a port-a-john (food trucks do not have rest rooms and do not carry much water). The next day, the owner backed the manager because he claimed employees are warned not to use the onboard water for handwashing.

    The civil complaint is awaiting the health department's resolution of the matter.

    Sensible people understand food trucks should be regulated.

  • NToJ||

    Your neighbor's child is a wiener.

  • bernard11||

    Oscar Meyer?

  • David Nieporent||

    Sensible people understand food trucks should be regulated.

    Which is why a liberal-libertarian alliance exists only in your head.

  • bernard11||

    Well, I think health and sanitation rules are justified. Telling them to stay a certain distance from restaurants is nonsense - just catering to an economic interest for no good reason.

    Having to move? Depends on the specifics.

  • nonzenze||

    And that kid's name was Albert Einstein.

  • mse326||

    "Two Muskogee County, Okla. jail officials are convicted for holding "meet and greets," where they beat up new inmates. District court: Such displays "of strength and control may have served a purpose in the control of disorderly inmates and the overall safety of the jail staff." The officers get below-guidelines sentences of one and two years. Tenth Circuit (over a dissent): Which isn't unreasonable."

    If this summary is accurate (don't have time to read it right now) it patently absurd and appalling.

  • Noscitur a sociis||

    If this summary is accurate (don't have time to read it right now) it patently absurd and appalling.

    Well, it's accurate (according to the dissent) that the sentencing judge said that. But the lead opinion doesn't rely (or even mention) that fact: rather, the holding is based on the fact that the judge has significant discretion in choosing a sentence, particularly when making it more favorable for a defendant, and that the defendants' lack of criminal history and low prospects for reoffending provided an adequate basis for the departure.

  • bernard11||

    So you are claiming the judge was influenced in sentencing by all that other stuff, and not by his appalling opinion of what the guards were doing?

    Because the District court and Appeals courts ignored it. Right?

    How are the toll collections on all your bridges coming?

  • Noscitur a sociis||

    Without reading the entire transcript, it's hard to make a real assessment of how much that inappropriate statement played a role in the sentence that was given. But the holding of the appellate court was that the sentence wasn't substantively unreasonable, not that comment.

  • bernard11||

    They got it wrong too.

    I encourage you to read the dissent.

  • darkknight9||

    "... judge was absent during significant portions of the proceedings..."

    They had the trial without him? I mean if a judge is in the hospital or something wouldn't you take a break?

    I mean, just tell me someone in the back of the room didn't stand up talking about spending the night at a Holiday Inn Express and they've got this...

  • Variant||


    Fifteen-year-old robs Norfolk, Va. house party at gunpoint. His two (adult) confederates plead guilty, get 10- and 13-year sentences. The teen goes to trial, gets 118 years plus six life sentences (with the remote possibility of geriatric release at age 60). He files a habeas petition arguing his sentence is too long, violates the Eighth Amendment. In the meantime, then-Gov. Bob McDonnell reduces his sentence to 40 years. Is the habeas petition moot? Fourth Circuit: Yes.

    His sentence was recently reduced further. He should be out within three years.

  • ||

    Not surprised. Violent black criminals and their families are an integral part of the Democrat Party base.

  • JesseAz||

    Too bad he's not an illegal immigrant, activists would be demanding he not be separated from his family.

  • bernard11||

    What do you think is the appropriate sentence for the crime of not taking a plea bargain, especially one that would have given him a longer sentence than his confederates?

  • nonzenze||

    Maybe some of us believe the confederates got off too easy?

  • bernard11||

    Maybe. Talk to the prosecutor. Meanwhile, is 118 years plus six life sentences right, in your opinion?

    Compare what this guy did with what the Muskogee guards did. Then compare the sentences.

  • eyesay||

    "and the trial goes on after the judge asks the jury as a group whether the dismissed juror had talked to any of them and receives no response—which might have been error on a direct appeal in federal court ..." I have a theory about what might have happened. The niece might have had conversations with some of the jurors on topics unrelated to the trial, e.g. career, weather, sports, whatever, and nobody wanted to tell the judge about it for fear of being disqualified, even though they logically shouldn't be disqualified, and that's why nobody said anything.

  • cthulhu||

    "After the victim's mother testified she didn't want to see defendant put to death, prosecutors allegedly tried to have her other child taken away from her."

    Glad to know that Louisiana prosecutors are doing their part to uphold the reputation of prosecutors as despicable sacks of shit who only care about their conviction record and are willing to destroy, by any means at their disposal, anybody in their way. Bravo!

  • ReaderY||

    In the Planned Parenthood case, the 9th Circuit basically said SLAPP is partially inconsistent with the rules of Federal procedure and won't be enforced in federal court where it is. SLAPP requires plaintiffs to present sufficient facts to establish that they have a reasonable proability of winning before they are entitled to discovery. Thee 9th Circuit says federal courts can't do that. If facts are required, then the plaintiffs have to be entitled to discovery first.

    This makes SLAPP effectively a dead letter in federal court. And it gives plaintiffs who might be considered about a potential SLAPP motion considerably incentive to sue in federal court rather than state court.

    Moreover, it may weaken SLAPP statutes nationwide. The gist of most SLAPP statutes is that plaintiffs have to establish a reasonable probability of success before they can burden defendants with discovery. If federal procedure doesn't permit this and other circuits agree, than SLAPP is likely effectively dead, except perhaps for the rare case where a plaintiff's lawyer can't come up with any federal claim or basis for federal jurisdiction.

  • ReaderY||

    On the Uber case, local taxis weren't considered to be interstate commerce in the 1960s when the civil rights laws were passed. How did they become interstate commerce subsequently?

  • GabrielSyme||

    Creeping Authoritarianism

  • Careless||

    The modern Democrat-nominated justice had just recently been born, and not yet installed

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