Short Circuit: A roundup of recent federal court decisions

Queen Anne's Revenge, Cindy Lou Who, and a pile of deference.


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

This month marks the 150th anniversary of the ratification of the 14th Amendment, which is a super big deal. Sheldon Gilbert, the director of IJ's Center for Judicial Engagement, explains why in USA Today.

Also of note: This week IJ signed on to an amicus brief urging the Supreme Court to reconsider the doctrine of qualified immunity. Submitted by appellate litigator extraordinaire (and past podcast guest) Cate Stetson on behalf of no fewer than 15 groups (of widely varying ideological orientations), the brief argues that QI prevents victims of unconstitutional conduct from obtaining justice and harms law enforcement by undermining the public trust necessary for officers to do their jobs. Click here to read it.

  • In 1935, Germany's Nazi government strong-armed Jewish art dealers into surrendering the Welfenschatz, a large collection of medieval relics and devotional art. Can the heirs of those art dealers bring suit in America to recover the art (conservatively valued at $250,000,000). D.C. Circuit: They can't sue Germany itself, but they can sue the museum that houses the art.
  • The Federal Energy Regulatory Commission approves natural gas pipelines. It's also statutorily required to recover its costs from regulated industries. Does this create an improper incentive to approve new pipelines, as environmental group claims? D.C. Circuit: FERC no!
  • A news editor submits a Freedom of Information Act request to the CIA, seeking documents he believes will shed light on the assassination of JFK. After 15 years of litigation and four trips to the D.C. Circuit, is he entitled to recover attorney's fees? D.C. Circuit: The district court said no, and we'll review that with "deference piled on deference," so no. Dissent: "In my view, my colleagues pile their deference far too high."
  • Boston union representing hotel and food service workers has collective bargaining agreements with multiple employers; a union member asks to see agreements with employers other than her own. Union: Nope. Feds: Let her see them. Union: Okay, she can read them, but she can't take notes or have copies of them. Retired Justice Souter, pinch-hitting at the First Circuit: Which is what Congress intended.
  • A one-woman play that imagines a grownup, comically dissolute Cindy Lou Who, of Dr. Seuss' How the Grinch Stole Christmas!, does so in the service of parody, says the Second Circuit. So the public's interest in free expression trumps the asserted copyright and trademark violation claims, and the show must go on.
  • Bronx, N.Y. man dishonorably discharged from the military, and thus banned from possessing guns or ammunition, is found with one round; he's sentenced to three years of supervised release. Does the ban violate the Second Amendment? The Second Circuit says no.
  • Man arrested after fight outside Winslow Township, N.J. bar is released pretrial but barred from leaving home except for work. Man: A recent New Jersey law that did away with money bail in most circumstances is unconstitutional. I have a constitutional right to pay money to a bail bondsman or insurance company and be released pretrial without this ankle bracelet. Third Circuit: Doubtful. Also, an insurance company that will lose money because of the law does not have standing to challenge it.
  • Allegation: TSA screeners falsely accuse woman of assault. She gets hit with lots of charges, spends 18 hours in Philadelphia jail, is ultimately acquitted. Can she sue the screeners? No can do, says two-thirds of a Third Circuit panel. TSA screeners are not "law enforcement officers" but "employees," and Congress has not waived sovereign immunity for employees accused of committing intentional torts, like fabricating criminal charges.
  • Videographer obtains the rights to film Queen Anne's Revenge, Blackbeard's 40-cannon flagship that ran aground near Beaufort, N.C. in 1718. State officials then make his videos publicly available. Videographer: Which violated my copyrights. (The parties settle, but the state allegedly reneges, puts the videos back online.) State officials: No matter, we'll just pass this new law declaring that footage of shipwrecks is public property. Fourth Circuit: The videographer can't sue. Federal copyright law doesn't waive the state's immunity to suit, and the state officials have qualified immunity.
  • Allegation: Man hits his wife, flees from Grand Prairie, Tex. police. On hearing canine approach, the man drops pocket knife, lies down spread-eagle. The dog bites him for one minute (until he's cuffed), during which time he cries out in pain, and the officers laugh. District court: Qualified immunity for the initial bite, but a jury might think the prolonged chewing (which tore muscle from bone, caused infection that required four surgeries) was unlawful. Fifth Circuit: Nope. That was fine, too. The man's mother told police he'd rather die than surrender, so the police reasonably feared for their safety.
  • Allegation: Decorated Iraq war vet suffers mental health crisis, enters woman's apartment, apparently thinking it's his own, at 5 a.m., carrying large knife. He leaves without harming her, tries to get back in. Columbus, Ohio police confront him outside, shoot at him; he flees; they give chase, shoot him dead. Sixth Circuit: Qualified immunity. Judge Stranch, partially dissenting: A jury might think shooting him again, after he'd collapsed on the ground, and then failing to render aid (other than calling EMTs, who arrived after his death) is unlawful. And while we're on the topic of qualified immunity, "I think we have embarked on the wrong road and the place to which it leads will prove detrimental to law enforcement, those with mental health issues, and our society as a whole."
  • Allegation: Ohio judge made vulgar remarks about female lawyer's sex life, retaliated against a court staffer who reported the remarks. District court: The staffer can sue the judge. Let's go to trial. Sixth Circuit: We don't have jurisdiction over the appeal because the judge's qualified immunity argument questions factual inferences drawn by the district court. Dissent from Judge Sutton: This is not what the Supreme Court meant when it held appeals courts lack jurisdiction over factual disputes in qualified immunity cases; it meant that defendants can't just say the plaintiff is lying.
  • Allegation: Wisconsin prison officials dither, delay, ultimately decline to provide hormone therapy to transgender inmate. After her release, parole officers forbid her from seeking such treatment or dressing as a woman. Seventh Circuit: Her claims against a prison doc and parole officers should not have been dismissed.
  • Allegation: Illinois inmate serving life sentence is confined alone 23 to 24 hours a day in dark, noisy, insect-infested cell that is cold in winter and hot in summer—for 11 years. Inmate: I'm suicidal. This is unconstitutional. District court: You've already filed three frivolous suits. We'll not appoint you a lawyer for this one. Seventh Circuit: Get him a lawyer anyway (though in point of fact he only has two strikes).
  • Indianapolis police investigate cop for stalking, rape, battery of his ex-wife (also a cop). The cop suspects there is a GPS tracker on his car, and a friend of his (another cop) confirms it. Ten days later, the cop drives to ex-wife's house in another car and kills her, himself. The ex-wife's estate unsuccessfully sues the city and the cop's friend. Seventh Circuit (over a dissent): The city doesn't have to pay the friend's legal bills.
  • Man takes hostages at Neenah, Wisc. motorcycle shop. Police enter, exchange gunfire, retreat. A hostage, the shop's co-owner, escapes out the back. The man fires at him; the co-owner takes cover, pulls out his own gun. Police shoot the co-owner dead. Can the co-owner's widow sue the officers? The Seventh Circuit says no. (Side note: The co-owner was suing police for a prior SWAT raid on the shop (an unsuccessful effort to find a large-scale drug operation), which was signed off on by a judge whose brother was on the task force that conducted the raid.)
  • In Illinois, sex offenders are prohibited from living within 500 feet of places—like playgrounds—where children regularly go. When the state added in-home day cares to the list of prohibited places, Chicago police ordered two sex offenders to move out of their homes within 30 days because one owned a home (where he had lived for 25 years) 475 feet from a day care and the other rented an apartment 480 feet from one. Can the sex offenders challenge the law as unconstitutionally retroactive and a taking of their property without compensation? No, says the Seventh Circuit, the complaint doesn't even state a claim.
  • Eighth Circuit: No need to reconsider $2.5 mil jury award to be paid by two St. Louis cops who framed man on drug, gun charges. (Click here for the man's profile on The National Registry of Exonerations.)
  • Arkansas state cop searches bag stowed in commercial bus's luggage compartment because it lacks a name tag, which is suspicious. But wait! The bag has a name tag. District court: The officer lacked probable cause, reasonable suspicion, and consent; the search violated the Fourth Amendment. But no need to suppress the evidence. A drug doggie's subsequent alert on the bus's luggage compartment (not on any particular bag) rendered sufficient probable cause (untainted by the previous search) to search the bag, which contained contraband. Eighth Circuit (over a dissent): Affirmed.
  • The feds spend two years investigating fowl murder, accuse Parma, Idaho farmer of leaving corn unharvested, spreading kernels about his field, which he then flooded, to attract ducks. A gov't witness says state officials even hunted there. Ninth Circuit: Conviction for illegal duck-baiting affirmed. (So 15 days in jail and a $40k fine.)
  • Among other misdeeds, Las Vegas softball coach takes explicit photos of himself with 17-year-old player. Distribution of child porn? Coach: No, I never shared the photos with anyone other than the player. Ninth Circuit: That's still distribution. But it seems the district court increased your sentence because you opted for a trial, so (over a dissent) resentencing is in order.
  • Allegation: Transgender inmate gets hormone therapy in Kansas prison but needs greater doses, gender affirming surgery. Can she sue prison officials for deliberate indifference to her serious medical needs? The Tenth Circuit says no.
  • Pima County, Ariz. police seize $120k from Florida man during traffic stop. He returns home and files claim for the money; he says he can't afford to travel back for deposition. Arizona trial court: Come back in person. No depositions via telephone or videoconferencing. Man: I couldn't do that (or comply with some other discovery requirements). Arizona appeals court: So you lose.

Friends, a startup called Vizaline provides a useful new service to small community banks in Mississippi. It uses publicly available legal descriptions of property to draw lines on satellite photos so that banks can visualize their property assets and identify issues that need to be looked into by a lawyer or assessor. (For instance, if a property's legal description doesn't describe a completed shape.) But the Mississippi Board of Licensure for Professional Engineers and Surveyors has sued to shut down Vizaline and require it to return all its earnings to satisfied customers because it says the startup is engaged in "unlicensed surveying." This week, IJ and Vizaline countersued. Drawing lines on maps is not surveying, and Vizaline has a First Amendment right to use existing information to create new information to sell to willing customers. Click here to learn more.

NEXT: Religious Leader Demands Suppression of "Blasphemous" Plays

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  1. The Varquez v. Fox decision appears to define retroactivity in a way that renders the ex post facto clause a nullify.

    Supposed the state passes a law that for persons previously convicted of a crime, anyone found outside a state penitentiary will be sentenced to 20 more years in jail.

    By the 7th circuit’s definition, this statute would be prospective. It prohibits only future conduct, being present outside a state penitentiary. Since it’s prospective, the law would survive ex post facto review without further inquiry.

    But if that passes ex post facto review, then the ex post facto clause is a nullify. Any punishment can be reframed as prospective conduct. Fines can be reframed as bans on the ownership of money or property. Prison can be reframed as a prohibition on being outside prison. A death penalty can be reframed as a prohibition on breathing.

    It seems to me that in order to classify a law as prospective in a way that doesn’t completely nullify the ex post facto clause, the law has to prohibit something that could be prohibited in ordinary people, who didn’t commit the past offense. If the sole basis that a prohibition on new conduct could be lawful is because of the person’s past conduct, then the prohibition isn’t really prospective in character, it’s looking backwards (retrospecting) to that past conduct. The question of whether it is punitive – to me the essential question here – would still remain.

    1. What you’re describing is not the test that the Seventh Circuit applied in this case. Rather, the court used test that the Supreme Court used in Smith v. Doe, 538 U.S. 84 (2003):

      The Court’s framework asks if the legislature intended to impose punishment, and if not, whether the civil regulatory scheme is “so punitive either in purpose or effect as to negate” the legislature’s nonpunitive intent. Smith, 538 92 (quotation marks omitted). Vasquez and Cardona do not argue that the Illinois legislature intended to impose additional punishment, so we skip directly to the second step. To determine if Alaska’s registration law was punitive in effect, the Court examined several factors: whether the regulatory regime “in its necessary operation… [would be] regarded in our history and traditions as a punishment[,] imposes an affirmative disability or restraint[,] promotes the traditional aims of punishment[,] has a rational connection to a nonpunitive purpose[,] or is excessive with respect to this purpose.” 97. The Court assigned no particular priority or weight to any of these factors: they are “neither exhaustive nor dispositive” but merely “relevant.” Id.

      1. To claim that such a law is not punitive in both intent and effect is tantamount to claiming the sky is green. It’s nonsensical.

        These people are being forced to leave their homes via a post-facto increase in their sentence. If that’s not a punishment, I cannot see what it is.

        1. Well sure, if you assume that the statute constitutes a retroactive increase in punishment, it’s very hard to deny that it violates the ex post facto clause.

      2. The 7th Circuit did indeed say this. But as I noted in my comment, there are two tests, the retrospective test and the punitive test, both of which need to be met for the Ex Post Facto clause to apply.

        The language you are quoting involved the punitive test, which the 7th Circuit addressed in an abundance of caution. But it did say that because the retrospective test wasn’t met, it didn’t actually need reach the punitive test.

  2. It seems the Eighth Circuit is saying that any luggage in a common carrier’s luggage compartment is subject to search whenever the cops can get a drug dog to alert in the luggage compartment. That means that every piece of checked luggage can be searched any time a drug dog is present.

    1. They explicitly deny that their ruling should be construed to mean that, and argue that in this case the dog’s alert was sufficient because the bus was practically empty (and that in another case, if there might be a hundred other passengers, this kind of alert might be insufficient).

      1. “…might be insufficient.” But it might not be. And what if there are “only” 85 passengers? Regardless of the denial by the court it leaves enough of a gray area that an officer can say “Well, I thought it would be okay because there were 76 passengers on the bus.” That’s enough for a “good faith” exception with the weakened state of the Fourth Amendment today.

        1. The US Constitution is null and void any time police dogs are present.

  3. I don’t have an issue with the gun ban as applied to Jiminez, but the 2nd Circuit’s decision is atrocious.

    1. When they called him, did he reply, “My name… Jos? Jim?nez.”

      1. Just wondering how old you have to be to get that reference?

        1. Older than me! And I’m over 50 (barely).

          1. Harvey,
            No. I’m just about your age, and I got the reference immediately. (Of course, my folks thought it would broaden our horizons if, even at a young age, our family watched SNL together.)

            1. …um, never mind (face-palm). I mixed up Garrett Morris and “beessseball…has been berry good…to me” routine with the Bill Dana character, which was–indeed–years before us.


        2. Not that old; the act was a major plot point in the film “The Right Stuff,” 1983.

          1. I wonder if that movie can survive our current times and several of the terms used.

        3. Anyone that has seen the movie, The Right Stuff (1983) should get the reference too.

  4. BLACKBEARD: “Arrrr, I see North Carolina still be cool with piracy.”

  5. If society thinks sex offenders are some sort of permanent threat beyond the level of even murderers and violent robbers and need to be punished forever, they need to start simply locking up these people permanently. No more of this charade of you’ve served your time PSYCH! and seeing how much we can annoy what is claimed to be a ticking timebomb while they’re running around loose on the streets. Also it’d be nice to finally see some stats about whether or not keeping the guy who whizzed behind a building or the guy who had drunk sex with his girlfriend 20 years ago 500 ft away statistically improves the murder/sexual abuse rate of children in the given jurisdiction.

    1. Why can not those people be required to wear a distinctive armband when out in public?

    2. Also it’d be nice to finally see some stats about whether or not keeping the guy who whizzed behind a building or the guy who had drunk sex with his girlfriend 20 years ago 500 ft away statistically improves the murder/sexual abuse rate of children in the given jurisdiction.

      For what it’s worth, the Illinois law only applies to sex offenders who committed crimes involving children (in this case, possessing child pornography and indecent solicitation of a child).

  6. I liked Souter’s opinion that a union member’s right to “inspect” various union documents did not include the right to take notes on them. Admirably textualist – where was this Mr Hyde version of Souter when he was on SCOTUS ?

    But it made me wonder. America is thick with laws and regulations allowing various government flunkeys and busybodies to wander onto business premises to annoy the proprietor and “inspect” for this or that. I wonder how many of those laws and regulations remembered to add a power to make notes while doing so ?

    1. I would think this would be an awesome opportunity for an ADA challenge, just need the right plaintiff.

      1. Actually, I’m not very convinced by Souter’s argument. Sure if you put some store on legisative history, he has a case (Congress’s first draft apparently said “inspect and copy” and copy was chopped. And Committee notes say the chopping was deliberate.) But I am not one who sets much (ie any) store by legislative history when the text is clear.

        The point, it seems to me, is that Congress doesn’t need to supply you with a right to take notes while you’re inspecting; any more than it needs to supply you with a right to breath or scratch your backside while inspecting. It’s your pencil, your note pad and your mind thinking up 1st Amendment protected writings that you may wish to write down on your notepad.

        The question is – is your statutory right to inspect union documents subject to a condition whereby it disappears if you take a pencil and a notepad into the room and start taking notes. Does the union have a statutory right to exclude you if you do that ? And there’s nothing in the statute that says that they do.

        You might draw a parallel with Sessions and his efforts to impose conditions on sanctuary cities getting cash. The reason he keeps losing is that there’s nothing in the appropriation that makes it conditional. And ditto for union members taking notes. The statute imposes no condition on their right to inspect. The union doesn’t have a right to impose one.

        1. I suppose I should add that the statute doesn’t give the union member the right to breach the union’s statutory or property rights, while busily inspecting documents in the union office. So you can breathe and scratch your backside and take notes, because none of that infringes the union’s statutory or property rights. But you can’t break the furniture or doodle on the walls.

          And if the union has copyright in the documents you’re inspecting then your notes would need to be consistent with copyright law – ie the extracts you might copy must not be so copious as to constitute a copyright infringement.

          1. And if the union has copyright in the documents you’re inspecting then your notes would need to be consistent with copyright law – ie the extracts you might copy must not be so copious as to constitute a copyright infringement.

            Even if there were such a copyright, in the context we’re discussing, even complete copying would almost certainly be fair use.

    2. I wonder how the court(s) would respond to someone “reading” the contracts out loud and recording with their cell phone. Obviously that is neither copying nor taking notes. It is obvious that Souter, are way behind the times.

  7. Qualified immunity seemed like a good idea when it first appeared. But it’s wildly impracticable, an exercise in crystal-ball gazing into the past to discern what a hypothetical state actor ought to have known the law to be. Anyone pretending to do it is engaged in hubris to think meaningful judgments can be made about relative degrees of hypothetical levels of obscure knowledge ought to have been, even if those judgments are being made under compulsion of precedent so requiring. I’m not sure what the better way would be to balance the interests that qualified immunity was invented to balance, but surely there is SOME better and more honest way to do that.

    1. But it’s wildly impracticable, an exercise in crystal-ball gazing into the past to discern what a hypothetical state actor ought to have known the law to be.

      The only opinion on the list that used this aspect of qualified immunity in its holding is the shipwreck video case. And I would say its use there is both sensible, easily applied, and unlikely to have affected the result (since the court seems to think that the state official’s position was the correct one).

      1. I’m still trying to understand how the government can take the videos and post them without permission. Just because the object whether shipwrecks or city skyline, etc. are public (government) property does not allow a taking without compensation.

  8. I enjoy Short Circuit but whenever you start your closing with, “Friends,” (which is about every time) I half expect Paul Harvey to cut in and start chatting about Bose speakers.

    1. And now for the rest of the story.

  9. In the Holland v. Rosen case, the 3rd Circuit is saying that the Excessive Bails Clause, a textual constitutional right, isn’t fundamental and therefore simply doesn’t count.

    What’s interesting here is the ACLU did a brief for the state, arguing the Excessive Bails Clause isn’t a fundamental right and shouldn’t be something citizens should expect.

    I’m wondering if this is the first time the ACLU has gone to court to argue against judicial recognition or enforcement of a written textual constitutional rights. The implications of this are considerable. It would seem the organization may perhaps be in favor of civil liberties for its favored constitutents, but not for Americans generally.

  10. In Escobar v. Monterey, what kind of mother would invite and effectively urge the police to shoot her son?

    1. Escobar vs. Montee

  11. I’m not disagreeing with providing alternatives to bail for low-risk people who merely can’t pay. Indeed, the EXCESSIVE bails clause itself suggests bail levels should be connected to means.

    However, whatever is done for people who can’t pay, because bail is a textual constitutional right, bail cannot be denied to low-risk people who can pay. If we want what we think is a fairer system, we need to amend the constitution.

  12. Conviction for illegal duck-baiting affirmed.

    Whew! Glad to see that the scourge of serious criminal activity is finally being dealt with by the feds!

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