Short Circuit: A roundup of recent federal court decisions

Objector blackmail, John Doe summonses, and inappropriate commentary from the bench.

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

Last week, the Supremes issued one of the most important free speech rulings in a generation, outright rejecting the "professional speech" doctrine, which invited gov't officials to silence all manner of speakers, like a concerned citizen who criticized gov't policy on traffic-light camera timing. So say IJ senior attorneys Robert McNamara and Paul Sherman. Click here to read more.

• American investors invest $221 mil into Brazilian oil project projected to produce $90 bil revenue. Yikes! Massive corruption comes to light; the $221 mil is lost. Can an American investment fund (which directed money through Luxembourg corporations for tax purposes) sue Brazil's state-run oil company in U.S. court? Sure thing, says the D.C. Circuit. Dissent: The losses, borne "by a Luxembourg entity, owned by another Luxembourg entity, in turn owned by United States entities," don't have the "direct effect" on the U.S. necessary to give us jurisdiction.
• Allegation: Uber tacked an $8.75 surcharge on customers heading to or from Boston airport, violating state law against "fictitious" fees. Uber: This should be resolved in arbitration, which our users agreed to. First Circuit: Nope—Uber didn't force customers to click on the 10-page "terms and conditions" when they signed up for the app.
• In 1961, Delaware, New Jersey, New York, and Pennsylvania enter into compact creating Delaware River Basin Commission, requiring anyone wishing to undertake a "project having a substantial effect on the water resources of the basin" to first apply for permission. The Commission has since banned fracking, but is fracking a "project"? Maybe not, says the Third Circuit; the district court should take another look.
• Honduran asylum seekers fear domestic violence at home. BIA: Which does not make them part of a "particular social group," as the statute requires, so they aren't eligible. Third Circuit: We've rejected the BIA's interpretation of what constitutes a particular social group in the past, but this is fine. Chevron deference for the BIA, and deportation for the women.
• District judge dismisses indictment after female prosecutor fails to turn over evidence to the defense, chews her out: "You're supposed to know what you're doing…. It was a lot simpler when you guys wore dark suits, white shirts and navy ties…. We didn't let girls do it in the old days." District judge also fails to cite, apply relevant case law. Fifth Circuit: The indictment should not have been dismissed, the judge's comments were "beneath the dignity of a federal judge," and a new judge needs to be assigned to the case.
• Parma, Ohio man engages in commercial sex transactions with young woman who advertises herself online as 19. Yikes! She's 14. Jury: Which he knew or should've known. Judge: So that's 17 years in prison for sex trafficking. Sixth Circuit: If you charge someone with one crime and then at trial present evidence and jury instructions that reflect a different crime, that's a problem—and our circuit has been less than clear about when it requires a new trial. But that's not a problem in this case. Conviction affirmed.
• IRS agents order bank to turn over taxpayers' financial records without naming the taxpayers (instead, agents identify account numbers)—so-called John Doe summonses, which are permissible as long as agents first obtain approval from a federal judge. Taxpayers: The agents did not get approval. Sixth Circuit: Because you're an LLC, sovereign immunity means you can't sue. You could've had you taken a different business form.
• District judge gives drug convict 10 years—double the guideline sentence and double what prosecutors asked for—because of a news article he'd just seen about an increase in opioid overdose deaths. Sixth Circuit: Yeah, no, can't do that.
• Allegation: After class action (over the claimed benefits of a dietary supplement) settles, class members who weren't part of the lawsuit object in bad faith—seeking side payment rather than better terms for the class. Objector blackmail? Maybe so, says the Seventh Circuit. The district court should take a look.
• Now-terminated Clark County, Ind. drug court jails participants for weeks and months without justification and without notice or access to counsel. Seventh Circuit: No doubt plaintiffs had their rights violated, but they can't sue the sheriff (who ran the jail) for failing to do anything about the detentions. Nor can they sue court staff who carried guns and badges, and made arrests directly without "any semblance" of legal authority.
• Allegation: Police officer orders Monticello, Ark. pedestrian to stop walking. The man continues a short way but stops when the officer points a taser at him. He walks toward the police cruiser as directed but stops and points to a nearby house saying, "You know what? That's my house right over there." The officer tases him without warning. Eighth Circuit: No qualified immunity.
• Arkansas Supreme Court justices remove judge, an anti-death penalty activist (pictured on cot), from cases related to the death penalty. A violation of the judge's free speech rights? The Eighth Circuit says no. Dissent: A writ of mandamus was not appropriate here.
• Motorist with broken taillight flees traffic stop, crashes into utility pole. Concerned for the motorist's safety, a Chico, Calif. officer approaches her car from the rear, shoots at her as she backs the car up slowly. She changes course, accelerates—into the path of other officers and potentially the public—so the officer fires twice more. The other officers fire too. She dies. District court: Qualified immunity all around. Ninth Circuit: Reversed in part. No qualified immunity for the first officer. (H/t: Police4aqi blog.)
• Santa Clara, Calif. police shoot, kill mentally ill woman who wielded a bat in her apartment. Her biological son and only living relative, who had been adopted by another family as an infant, sues the officers and the city. Ninth Circuit: Case dismissed. It's not that children "adopted out" can never file Fourteenth Amendment loss of companionship claims on behalf of their biological parents. It's that this plaintiff didn't show he had enough of a relationship with his mother.
• A Tennessee law that automatically rescinds the licenses of drivers who fail to pay court debt is unconstitutional, says a district court. "No rational creditor wants his debtor to be sidelined from productive economic life. No rational creditor wants his debtor to be less able to hold a job or cover his other, competing living expenses…. The state can still use the specter of revocation to encourage payment of court debt; it simply must afford the debtor the opportunity to demonstrate, first, that the only reason he has failed to pay is that he simply cannot."
• The end result of the U.S. Supreme Court's holdings involving motorist stops is that police have "virtually unlimited discretion to stop arbitrarily whomever they choose, arrest the driver for a minor offense that might not even be subject to jail penalties, and then obtain a broad inventory search of the vehicle—all without a warrant." So says the Iowa Supreme Court, holding the state's Constitution provides greater protections against such searches than the U.S. Constitution. (H/t: Andrew Fleischman.)
• Woman posts poor reviews ("abject lies") about personal injury lawyer on Yelp. The lawyer sues for defamation—and wins! Must Yelp, which wasn't a party to the suit, take down the reviews? The California Supreme Court, over several dissents, says no. Had the lawyer sued Yelp directly, the suit would have been tossed immediately (as Congress has immunized Internet companies that host third-party content on their sites from this kind of suit). No dice trying to achieve indirectly what Congress has clearly forbidden achieving directly.

African-style hair braiding is illegal in New Jersey without a cosmetology license, which is a sad state of affairs. The law chiefly benefits cosmetology schools (which charge upwards of $15k), provides no benefit at all to consumers, and throws up needless barriers to braiders seeking to earn a living. Fortunately, state legislators (in both the Senate and Assembly) have unanimously passed a bill exempting braiders from cosmetology licensing. Should Gov. Phil Murphy sign it, the bill would make New Jersey the 26th state to free the braiders. Click here to learn more.

Comments

[Soronel Haetir]

I've never used Uber but I would think there is a notice that using the program subjects the client to the terms and conditions, and I would think that enough even without an "I agree" before even being able to use the service.

[Purple Martin]

Fortunately, a trial affords the opportunity to actually check an assertion and enter the results into evidence, versus depending on multiple instances of "I would think..."

[Drewski]

Statutes trump contracts.

[bernard11]

At what point does an important part of the terms and conditions being buried in ten pages of small-type legalese render that part invalid?

[Krayt]

I'd go further. If the part buried is something their business model hopes you don't notice, it's fraud.

As with chess, they're the people who hope you move into checkmate (something actually disallowed in the rules of chess.)

[BigHands]

Perhaps at the point where the user was not required and had not given unambiguous consent to the T/C in question?

If Uber - or any other company - wants to insure that its T/C are explicitly accepted all they have to do modify their online registration by adding a little check box which says something like, "I have read and accept the T/C of this offer." Pretty standard for credit card and many other online applications.

[BigHands]

P.S. Some sites actually require the user to access the T/C and, at the very least, scroll through the entire text; only then is the check box activated.

[VinniUSMC]

Even then, contracts don't nullify state laws.

Also, there's plenty of evidence that T/C are not "contracts".

[BigHands]

"...contracts don't nullify state laws."

I agree but if I recall the decision properly, Uber's failure to secure unambiguous consent from its users and not the content of their T/C, per se, is what ran afoul of state law.

"...T/C are not 'contracts'."
I agree with this too but that doesn't mean that a company's T/C are necessarily unenforceable. Take airline frequent flyer miles, for example. The airline's T/C specifically state that selling, bartering, etc. of miles is prohibited and I know (obliquely) of several cases when people have lost their miles for violating this rule. Could those people file a suit seeking to overturn this rule? I suppose so but I'm unaware of any case where an airline has been forced to return miles that they've confiscated. Not saying there are none, just unaware of any.

[I am aware of a few cases where banks and credit card companies have returned points confiscated for one reason or another.]

P.S. I allow for the possibility that bernard11's comment was tongue-in-cheek.

[Vandalia]

I would suggest that Reason/Vokoh create the Judge Manuel Real Award for most reversals in a calendar year due to improper conduct during a trial/sentencing. Judge John R. Adams would probably be the 2018 winner.

[QuantumBoxCat]

I am impressed with how the Institute for Justice uses these Roundups as a means of slightly nudging cases in the direction sympathetic towards their cause. The one roundup starts:

"Motorist with broken taillight flees traffic stop, crashes into utility pole. Concerned for the motorist's safety, a Chico, Calif. officer approaches her car from the rear, shoots at her as she backs the car up slowly."

Hmmm, so the facts of the case, as conveyed in the blurb, entail an officer approaching a motorist's car and shooting at her as she backed away "slowly." That "slowly" fact sounds important, as it would be a crucial component in determining whether the officer had an objective concern for his safety. But upon reading the 9th Circuit opinion, it is clear that this crucial fact is, in fact, a point of dispute between the parties and a significant reason why the case was remanded. The Court of Appeals opinion states, "Although it is not clear which, if any, of Sergeant Zuschin's shots struck Sharpe in the head, on appellant's version of the facts, Sergeant Zuschin was not in immediate danger of being struck when he fired his first two shots because he could have avoided the Honda as it slowly backed away from the utility pole."

So the Institute for Justice reads appellate decisions, picks the fact pattern most supportive of its policy preferences, and subtlely incorporates them into its Roundups as though they are the facts of the case. Nicely played.

[Stephen Lathrop]

Whatever one thinks about crisis pregnancy centers, restrictions on their speech have to be justified under the First Amendment ? not just blindly ratified in the name of "professional regulation."

QuantumBoxCat, I take the quote above, from the link in the intro, to be another example of the point you make. What's in contention in the case is whether crisis pregnancy centers can be barred from certain kinds of fraud, which they practice habitually, by requiring them to provide some speech appropriate to the role they falsely portray. But the IJ calls that "blindly" ignoring the 1A. It's as if the controversy doesn't exist.

More generally, this blog often features that kind of framing?EV uses it constantly. I wish the discussions were more forthright. I have a hard time believing that this kind of framing is actually part of legal arguments made in the cases discussed. If it is, it surprises me that anyone could win a case while doing it. Reading the IJ's account of the crisis pregnancy centers decision from Thomas, you can only conclude that Thomas was stupid, and got fooled by school-playground-level deception. That seems unlikely to me, even speaking as someone with a poor opinion of Thomas.

So I hope, "Nicely played," was meant sarcastically.

[Toranth]

Was.. your first paragraph supposed to be sarcasm or not? I honestly can't tell if you are using QBC's complaint to demonstrate how it can be applied to anything, pr if you actually believe what you wrote.

[Purple Martin]

Yes, that seems to be SOP for most of the external info sources referenced here on VC.

I've noticed the same thing (except less subtle) on the postings for a "CyberLaw" podcast. On Info Security & Privacy topics, the focus seems to be around what I'll charitably call a minority position in the field with (less charitably) what's close to a bad-faith representation of positions not aligned with their own (especially on the topics of individual privacy, and government/LE access to encrypted devices/data). S&P is my area of professional expertise so such instances were particularly grating.

I do not, however, find VC's approach to be surprising or even unexpected. I've followed VC for years (starting pre-WaPo) as a relatively thoughtful and courteous window into the Right (Chicago Tribune and National Review are others I follow for the same reason, and I'm always looking for others I can read without feeling I need a shower afterwards).

So, given the caveat that it cannot be considered to be a neutral/objective source (but neither is VC), I find the weekly Short Circuit to be useful, entertaining, and educational (primarily when I follow links to the actual decisions).

[MatthewSlyfield]

The "CyberLaw" podcast post are by Stuart Baker.

While most of the Conspirators have at least some libertarian leanings, Baker is a straight up statist.

With Baker, it isn't even a left/right or progressive/conservative thing. Baker solidly supported the surveillance state even during the Obama administration.

[MonitorsMost]

I hate Baker's viewpoint, but he is 100% transparent about it. He has expressly states that he is not a libertarian on surveillance issues and believes that privacy concerns should yield to national security.

You can disagree with that view, but you can't claim he's dishonest about it.

[FlameCCT]

I would suggest Paul Cassel is one of the more (most) Progressive of the Conspirators.

[Brett Bellmore]

" What's in contention in the case is whether crisis pregnancy centers can be barred from certain kinds of fraud, which they practice habitually, by requiring them to provide some speech appropriate to the role they falsely portray. "

What fraud is that? They say they provide counseling, and they do. If you don't like the substance of it, start your own counseling center.

[Krayt]

I'm in favor of abortion, but also free speech, including the right to not have to say things you disagree with.

It was exactly this point Rush Limbaugh, favorite of all, invented the term "Femi-Nazi", a woman who gets mad when another woman doesn't have an abortion.

It is for exactly this context. Here, people are getting mad pregnant women aren't being told they should, or even could, get an abortion, and are being talked out of it.

The clinics have misleading names...only from that point of view. But aren't most abortion clinics named things like Family Planning (made up but e.g.) precisely to obscure the unpleasant nature of providing abortions?

[FlameCCT]

Planned Parenthood is definitely misleading as they have neither planning nor parenthood in mind.

[Absaroka]

My wife has gotten contraception, Pap smears, and other general gynecological services there. They were in fact the only such provider in a large (rural) section of our state. Contraception seems to be family planning to me.

[QuantumBoxCat]

Stephen, I was being sarcastic in my last line, and I'm glad to see I'm not the only one that has picked up on the framing and the alterations that are made in the roundups when compared to the actual opinion of the Court.

Purple Martin (below) does make a good point in that the cases covered by the IJ are generally intriguing and they provide the links for me to go read the opinion and see what the actual issues are in the case, which the roundups don't convey. However, I am also aware that the interpreter of a source often becomes the mouthpiece of the source as many (most?) people will not actually read the source. This is of course the strategy that underlies interpretation as persuasion.

Every now and then I'll read a post on here by EV or another conspirator in which they are arguing for a position in a case and also submitted an amicus brief. Not surprisingly, the language and method of argumentation in the brief is typically quite different from that used in the blog post. I guess the obvious answer is that persuading a judge entails talking in a specific language, while persuading a mass audience entails talking in a different language. I personally find that unbecoming, but if the intention of the writer is always to persuade (and therefore influence) then I get the need for different styles of communication.

Thanks for the response.

[David Nieporent]

QuantumBoxCat, I take the quote above, from the link in the intro, to be another example of the point you make. What's in contention in the case is whether crisis pregnancy centers can be barred from certain kinds of fraud, which they practice habitually, by requiring them to provide some speech appropriate to the role they falsely portray.

You are, in fact, lying.

Crisis pregnancy centers, like everyone, can be barred from all kinds of fraud. That was not at issue in the case. The issue was whether they needed to advertise that the state will pay for people's abortions.

[Stephen Lathrop]

Anyone inclined to credit Nieporent ought to check out the Wikipedia article on crisis pregnancy centers, and on the basis of what you find there judge for yourself whether fraud has been part of the model.

[MatthewSlyfield]

Wikipedia is not a reliable source on controversial topics.

[David Nieporent]

Anyone inclined to credit Nieporent ought to check out the Wikipedia article on crisis pregnancy centers, and on the basis of what you find there judge for yourself whether fraud has been part of the model.

Setting aside the absurdity of citing Wikipedia for discussing a controversial topic, your comment is completely non-responsive. Whether crisis pregnancy centers commit fraud or not, this law had nothing to do with that. Anyone inclined to credit Lathrop should read the actual court case, not Wikipedia.

[nonzenze]

Let's be fair to SL. From the last thread his claim was:

1) The centers are committing fraud or at least deceptive tactics
2) The State has an interest in preventing such deception
3) It is more effective and less onerous to prevent this deception by mandating the signs in advance than prosecuting each such center afterwards

There's a number of places where I disagree, but there is at least a putative logical connection between the alleged deception and the law at question.

[Stephen Lathrop]

nonzenze, I wish I had been that clear and succinct. Can I hire you as my editor?

[David Nieporent]

You are much better at constructing a logical argument than Lathrop, to be sure. But expressing it more coherently doesn't really help him on substance. (And I recognize that you said you aren't endorsing his argument.) Even if "It's easier to do it this way" were enough to abrogate first amendment rights, the problem is that the signs in question do nothing to prevent the deception in question. And they aren't narrowly tailored, either in terms of the alleged fraud victims or the topic of the alleged fraud.

[Stephen Lathrop]

Nieporent, as for "narrowly tailored," suppose the fraud in question were:

1. Administering an ultrasound to a woman who came looking for an abortion, and who hasn't been informed she came to the wrong place.

2. Discovering that her pregnancy will in approximately two weeks be past the statutory limit to receive an abortion.

3. Telling her she has at least 6 weeks to think it over, and scheduling her for a follow-up in four weeks.

Other than posting a sign to inform the woman she can't get an abortion where she is, and that she can get it elsewhere, what more narrowly tailored remedy would both prevent the fraud, and also prevent the damage to the woman?

[Stephen Lathrop]

The thing about citing Wikipedia in this instance is that folks (not you, but curious folks) are free to reference it, and free to apply all the skepticism you recommend, and will still likely conclude that a non-trivial fraction of crisis pregnancy centers practice fraud routinely and on purpose. Why? Because the article is full of corroborative detail, of the sort that knee-jerk skepticism and motivated reasoning have a hard time getting past.

[FlameCCT]

LMAO. SL whining because he was caught lying again then relies on "Wikipedia" as his source for information instead of the actual case files.

[Stephen Lathrop]

Conservative invective becomes less puzzling once you have seen enough of it to understand how many self-described conservatives are a little unclear about what lying actually is.

[jph12]

"So the Institute for Justice reads appellate decisions, picks the fact pattern most supportive of its policy preferences, and subtlely incorporates them into its Roundups as though they are the facts of the case. Nicely played."

No. You are ignoring the procedural posture of the case, which explains both the description of facts in the blurb and the Ninth Circuit's ruling.

[MonitorsMost]

Give me a break

"it is clear that this crucial fact is, in fact, a point of dispute between the parties and a significant reason why the case was remanded."

Taking the facts in the light most favorable to the appellant IS the flipping standard of review for summary judgment. To pretend that is a framing bias on behalf of IJ is ridiculous.

[markm23]

If an officer fears imminently being run over, standing there and shooting at the driver is one of the stupidest things he can do. Moving cars don't stop on the spot when the driver dies. They keep coming, probably at a slowly decreasing speed because the driver's foot slipped off the accelerator pedal, but it's not going to stop soon enough to save someone who is standing still in the car's path at a distance small enough for accurate pistol fire.

[Tempe Jeff]

The Asylum request was ridiculous on it's face. The fear of Domestic Violence requires you to move several Countries and a minimum of 1400 miles away? Passing several U.S. Embassies including the one in Honduras itself? If they did not apply in their home Country or the one in the Country next door; send them home immediately.

[ActualRightWingPatriot]

Of course it is, and liberals know it. But anything that stands in the way of replacing the American people with low IQ brown people (their words, not mine) for votes needs to be suppressed.

[santamonica811]

Ha ha ha. Of course.

If liberals are known for anything, it is for mockingly referring to people south of the border as "low IQ brown people." And if conservatives are known for anything, it's for using super-supportive terms to refer to Latino people. Somewhat related case in point: President Hillary Clinton referring to lots of Africa as full of "shit-hole countries." And it's why, when liberals lose a case heard by a judge with an Hispanic surname, they immediately get all racist and blame their defeat on the judge's ethnicity.

Stupid liberals.

[TwelveInchPianist]

Africa is full of shithole countries. If we want to liberalize immigration people have to start making arguments about why we should let people from shithole countries come here, instead of calling for the feinting couch because Trump said that Haiti is a shithole.

Of course there are plenty of good arguments for letting people from shithole countries come here, but they are more compatible with a small government free market economies than the Democratic Socalist welfare state agenda that people like the chick from NY want to establish.

[santamonica811]

The feinting couch???

[santamonica811]

I get the anti-immigrants policy you're talking about. And your proposition would work great to keep those people (I'm avoiding the cliche of putting ironic quote marks around that two-word phrase.) out of our country. But of course, I assume you agree that--if adopted--it would apply equally to all asylum claims, right? If you've been targeted for assassination by the Honduran government...then you need to apply for political asylum from El Salv., Guat., or Nic.. If you've been targeted by China, then you need to apply to one of the 14 countries that touch its borders. Your proposal is heartless. Pragmatic, bright-line, and easy to interpret. But heartless.

[Toranth]

Because 'heart' is the proper way to direct the most powerful government the world has ever seen. Because what you "feel" is the best way to control the lives of hundreds of millions of people.

If you are a parody of bad Leftist protesters, that's a great post. If not, well...

[Toranth]

Because 'heart' is the proper way to direct the most powerful government the world has ever seen. Because what you "feel" is the best way to control the lives of hundreds of millions of people.

If you are a parody of bad Leftist protesters, that's a great post. If not, well...

[santamonica811]

Since I have voted for a Republican candidates 3 of the past 4 elections, I'm not totally sure "liberal" is the most accurate term to describe me. (But, sure; liberal on non-gun social issues, I guess.) Governing with your heart as the only benchmark would be idiotic. But that's certainly not what I said.

For decades, liberals and conservatives alike said that America was something special (City on the Hill; a Guiding Force for Good, etc etc etc). And as part of that ethos; giving a crap about people from foreign countries other than Mexico and Canada played a large role. In other words; caring and compassion about the rest of the world should not have zero influence--nor anything close to zero influence.

I can respect a contrary viewpoint, and I (genuinely!!!) respect your honesty...you want to (metaphorically??) change the inscription on the Statue of Liberty to, "Please, do NOT give us your tired, your poor, Your huddled masses yearning to breathe free.... Okay, if you're from Mexico and Canada, we'll grudgingly take you. But the rest of you countries? Bugger off!!!"

I guess we will agree to disagree on this issue.

[santamonica811]

The last roundup talked about the ancient art of hair-braiding and the (quite welcome!) move by states to end restrictive and unnecessary barriers. Presumably this will lead to more practitioners and more braiding being done.

There's gotta be a "Braiders of the Lost Art" joke in here somewhere.

[nonzenze]

District judge dismisses indictment after female prosecutor fails to turn over evidence to the defense, chews her out: "You're supposed to know what you're doing?. It was a lot simpler when you guys wore dark suits, white shirts and navy ties?. We didn't let girls do it in the old days."

Pretty sure some male prosecutors also failed to follow Brady too.

The net result of course, is that the prosecutor slides for a Brady violation.