Short Circuit: A Roundup of Recent Federal Court Decisions

Intellectual creatures, abashed racism, and so, so much self- defecation.

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

After a Texas administrative agency ruled that a home health aide had committed misconduct (thus forbidding her from ever working in the field again), officials told her (and regulations directed her) to appeal by contesting the ruling in court. But when she did, officials argued the suit was barred (and all judicial review foreclosed) because she hadn't first sought rehearing within the agency—and a state appeals court agreed! Today, IJ urged the Texas Supreme Court to grant review and hold that due process provisions of the U.S. and Texas Constitutions do not allow gov't to actively lie to citizens about procedures designed to protect their rights. Click here to read more.

• Federal law gives Amtrak the power to establish rules for use of tracks owned by freight railroads. D.C. Circuit (2016): Due process is violated when Amtrak—a for-profit outfit—sets regulations that affect its own bottom line. D.C. Circuit (2018, with puns): But no need to actually invalidate the law. We can remedy the violation with a minor tweak. Dissent: That leaves Amtrak's ability to impose self-serving regulations intact; the entire law should go. (We discussed the 2016 decision on the podcast.)
• Citizen: I renounce my U.S. citizenship. Gov't: You're kidding. You're not a citizen anywhere else, and you have nowhere to go. Citizen: I really mean it. Gov't: You can't be serious. We would have to detain you. Citizen: I understand, but I really do mean it. Gov't: No you don't. D.C. Circuit: Problematic as it may be for all involved, this gentleman clearly does intend to renounce his citizenship.
• Protesters protest money in politics across the street from NYC hotel where President Obama is holding 2011 fundraiser. NYPD officers put up barricades, boxing them in for two hours. (Two require medical attention.) An unconstitutional detention? Probably, but officers couldn't have been expected to know that, says the Second Circuit.
• State police conduct pre-dawn raid of Galen, N.Y. home with Border Patrol agents present to provide "translation assistance." Second Circuit: It's fishy the gov't didn't produce a copy of the warrant justifying the raid. Could be that the officers, rather than seeking a fugitive, were just rounding up Hispanics to check their immigration statuses. Certainly merits an evidentiary hearing.
• Man gets life sentence for 2006 killing of Harrisburg, Pa. gas station clerk. Yikes! The jury never heard that, among other things, details of his purported confession are contradicted by video. New trial? District court: Nope. For that, he would need new evidence, and all his evidence was available (if unpresented) at trial. Third Circuit: Because his lawyer may have been ineffective, new proceeding. Judge McKee, concurring: Evidence of innocence is substantial; "for some inexplicable reason, police simply refused to follow even the most obvious leads that did not confirm their suspicion that [petitioner] was the killer."
• Catholic nuns sue to challenge use of their property for a natural gas pipeline. Third Circuit: The nuns had to challenge the pipeline during an earlier administrative proceeding before the Federal Energy Regulatory Commission, even though the nuns were not a party to that proceeding. Now that their property is at risk, it is too late to raise this claim.
• Fairfax, Va. bank employee convicted of reaping $231k through fraud scheme is ordered to forfeit over $1.5 mil, including assets the gov't stipulates were not fraudulently obtained. Fourth Circuit (2017): Freezing her assets prior to trial doesn't violate the Sixth Amendment; she may have had to go heavily into debt, but she retained her counsel of choice. Fourth Circuit (2018, on remand from SCOTUS): But she's not liable for the full $1.5 mil; no more forfeiting untainted assets.
• Mocksville, N.C. police officers anonymously report their chief to state authorities for embezzlement, pulling people over without authority. (He's an "administrative" chief and not certified to do traffic stops.) State officials send an investigator friendly with the chief; the officers get unmasked, promptly fired. Fourth Circuit (2015): No qualified immunity. Could be the chief is liable for violating the First Amendment. Jury: He totally is. Fourth Circuit (2018): Point of fact, the town is also liable for violating the First Amendment.
• Property owners say the condemnation of their property to build a pipeline violates the Constitution. But the statute says such claims can be pressed only in the D.C. Circuit and that, says the Fourth Circuit, is not here.
• The Fifth Circuit has repeatedly told prosecutors to refrain from improper conduct, such as implying that the court has already determined that a witness for the prosecution is truthful. Yet these prosecutors did it again! Fifth Circuit: For which there will, again, be no consequences beyond a stern finger-wagging, which we hope will teach them a lesson. Conviction (and 30-year sentence) affirmed.
• Drunken mixed martial artist taps woman on her posterior with the back of his hand "to say hi." What follows includes a Grand Rapids, Mich. cop being thrown through the air by a "spin move," alleged choking, and so, so much self-defecation. Sixth Circuit: Qualified immunity for everybody.
• "Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder, and challenge their own ideas and those of others." So says the Seventh Circuit, blocking, for now, an Indiana law requiring women to view a transvaginal ultrasound and listen to a fetal heartbeat (unless they sign a state form certifying they don't want to) at least 18 hours before getting an abortion.
• Legal immigrant drinks and drives with his young son in the car. Feds: That's child abuse, as we interpret the relevant statute, even if no harm came to the boy. So you're deported. Ninth Circuit: The feds' interpretation is entitled to Chevron deference. Dissent: The new interpretation of the law means conduct driven by poverty (like leaving a child home alone to run an errand) can get you deported. Fault the guy for endangering his son, but breaking a family apart is not what Congress intended here.
• Ninth Circuit (2016, en banc): The Second Amendment does not prevent cities or states from barring people from carrying concealed firearms in public. Ninth Circuit (2018, over a dissent): But the Second Amendment does prevent Hawaii County, Hawaii, from banning people from openly carrying handguns. (We discussed the 2016 decision on the podcast.)
• Nevada judge presides over 1990 murder trial where victim was an FBI agent who had investigated the judge for corruption, perjury (before he became a judge)—a fact known to the judge and not disclosed to the defense. The judge denies a motion to suppress the defendant's confession (allegedly obtained via gruesome torture at the hands of Mexican police); the defendant is convicted, sentenced to death. Ninth Circuit: New trial.
• The Supreme Court has signed off on prayers before legislative sessions, but does this extend to prayers before school board meetings at which students are present? Ninth Circuit: Nope, this is more like prayer at high school football games, which the Supreme Court has not signed off on.
• The Maricopa County Sheriff's Office, under the leadership of Joe Arpaio, violated the Fourth Amendment when it raided the home of a businessman who leased (allegedly undocumented) employees to two restaurants. But was it such an "egregious" violation that evidence should be suppressed in a separate ICE proceeding? Ninth Circuit: Indeed it was. Suppress the evidence.
• Pro tip from the Tenth Circuit: Attorneys should tell the court if their clients die.
• In 2016, Birmingham, Ala. officials imposed $10.10 minimum wage, but the next day state legislators preempted it, enacting a statewide minimum wage of $7.25. Plaintiffs: Which discriminates against blacks, who make up 72 percent of Birmingham and most of its City Council. Eleventh Circuit: "Today, racism is no longer pledged from the portico of the capitol or exclaimed from the floor of the constitutional convention; it hides, abashed, cloaked beneath ostensibly neutral laws and legitimate bases, steering government power toward no less invidious ends." Plaintiffs' equal protection claim should not have been dismissed.
• And in en banc news, the Third Circuit denied rehearing and issued a revised opinion that permits a Boyertown, Penn. high school to continue allowing transgender students to use bathrooms and locker rooms consistent with their gender identity. Dissenting from denial of en banc review: The school probably wins here because the policy doesn't violate anyone's privacy, but the panel shouldn't have addressed the school's superfluous claim that Title IX requires the policy.
• And in further en banc news, the Fifth Circuit, by a vote of 8–7, will not reconsider its decision upholding a federal statute that bars handgun dealers from selling directly to customers who reside out of state, lest dealers be expected to learn and comply with 50-plus other jurisdictions' gun laws. With dissents that invoke Rodney Dangerfield, hoplophobia, and the liberty of the individual.
• Allegation: Cecil County, Md. officer pulls over woman with dwarfism, who stands 4'6", simply for making eye contact; he's enraged when she declines to roll down her window the whole way. Thinking he's about to break her window, she drives slowly to a well-lit area, but another officer cuts her off. They drag her out of the car and throw her on the pavement, breaking her arm. A search yields no contraband. (She's convicted in state court of "obstructing and hindering.") District court: A jury might think the officers acted with malice or gross negligence.

Jon McGlothian is a former Army Ranger with decades of experience managing projects in the business world. And for years he's also taught project management courses to clients ranging from Fortune 750 companies to military units. But Virginia forbids him from teaching the very same material directly to individuals without first obtaining a vocational school license, and State Council of Higher Education for Virginia officials have repeatedly denied him one—for no defensible reason. This week, Jon, his wife, Tracy, and IJ sued the state. The First Amendment ensures that the public, not the gov't, gets to decide who is worth listening to and learning from. Click here for more.

Comments

[Bubba Jones]

"breaking a family apart"
The boy isn't allowed to leave with father?

"18 hours before getting an abortion."
So, a woman doesn't need a waiting period for an abortion, but (in some states) she does need to rethink her decision to buy a gun for protection?

"Nevada judge presides over 1990 murder trial where victim was an FBI agent who had investigated the judge "
Wouldn't that make the judge *more* sympathetic to the defendant?

[Careless]

Wouldn't that make the judge *more* sympathetic to the defendant?

Ninth Circuit and a death sentence.

[bernard11]

So, a woman doesn't need a waiting period for an abortion, but (in some states) she does need to rethink her decision to buy a gun for protection?

What does the Indiana law have to do with a waiting period?

[Soronel Haetir]

The law in question apparently requires either an invasive medical procedure or a waiting period before an abortion can legally be performed.

[BillyG]

That's the first time I've ever heard an ultrasound described as invasive.

[bernard11]

It's not the same as an ordinary ultrasound:

"Transvaginal" means "through the vagina." This is an internal examination. Unlike a regular abdominal or pelvic ultrasound, where the ultrasound wand, or transducer, rests on the outside of the pelvis, this procedure involves your doctor or a technician inserting an ultrasound probe about two or three inches into your vaginal canal.

Sounds invasive to me.

[Brett Bellmore]

Technically invasive relative to (most) other sorts of ultrasound, but not particularly invasive relative to the procedure she's already volunteering for.

Still, is there some good technical reason to specify that particular sort of ultrasound?

OK, I looked it up, and indeed, before 6 weeks it is the medically indicated approach.

Although I think Roe a bad decision, I am somewhat sympathetic to the court's reasoning here, given that Roe is still 'good' law. But I'm somewhat put out that the invented right to an abortion is still better protected than some enumerated rights.

[bernard11]

not particularly invasive relative to the procedure she's already volunteering for.

The word I put in bold is pretty significant here. I would have thought a determined libertarian would understand that. Partisan blindness at work, I suppose.

It's not up to you, or Mike Pence, or the Indiana legislature, to decide whether a woman ought to have such an ultrasound, nor is it OK for them to mandate any procedure less invasive than an abortion because, "Hey, she already signed up for one invasive procedure, so let's make her undergo another one, just so we can posture to our constituents."

[James Pollock]

"Technically invasive relative to (most) other sorts of ultrasound, but not particularly invasive relative to the procedure she's already volunteering for."

Yes, I suppose, on a technicality. If she chooses a medical abortion, she will have to swallow the pill, and it does go all the way down to her stomach.

[bernard11]

She has to wait 18 hours after she has the procedure and is given some state-mandated misinformation.

[Noscitur a sociis]

Wouldn't that make the judge *more* sympathetic to the defendant?

The court's "logic" is that the judge would have been afraid that people would think he was sympathetic to the defendant, and thus would have overcompensated by being actually biased in favor of the prosecutors.

[David Bremer]

No, that's not at all what was said. Did you even read the decision? The court explained that the judge could be fearful that, by ruling against the FBI, the investigation against him could be reopened:

Judge Lehman was well aware of the FBI's efforts to ensure Echavarria's conviction. [Several paragraphs about FBI's efforts.]

The State argues that there was no risk of bias because federal and state authorities had previously declined to prosecute Judge Lehman. But the question before us is not whether, a few years before Echavarria's trial, Judge Lehman had escaped prosecution. The question is whether an average judge in Judge Lehman's position would have feared that the FBI might reopen its investigation or renew its advocacy for state prosecution if he made rulings favorable to Echavarria. . . .

Judge Lehman was no ordinary judge, and Echavarria was no ordinary defendant. Rather, Judge Lehman personally had been criminally investigated by the very FBI agent that Echavarria was accused of killing, and the case required Judge Lehman to determine, inter alia, whether FBI agents had known about or been involved in the use of torture in obtaining Echavarria's confession.

I understand disagreeing with the Court's reasoning. But at least be honest about the logic applied.

[David Bremer]

After reading that, I was too strident. If by "people" you meant the FBI agents that could re-open an investigation, then I suppose it's generally correct.

I just don't know how you can look at the case without considering the fact that the judge would have known the FBI could go back after him. I understand why that would at least raise a concern of bias.

[ReaderY]

Yes, there is no constitutional right for aliens to enter or reside in the United States, and yes, the Administration pretty much as free choice in deciding who to permit and who to deny. Presidents can make their own decisions on these matters, and our current one certainly has.

But if, for example, Congress were to require hearings to be held or certain pieces of evidence to be considered before a decision can be made, suc a requirement might be bad policy. But would we really say that such a requirement insults the President's intelligence, that it demeans him as a person, that respect for his status as an intelligent, thinking person necessarily invalidates it?

Mr. Trump would certainly agree with this position. He has said hearings and judges are really stupid things for an intelligent nation to have. The administration can jolly well make the necessary decisions on its own and needs nobody butting in trying to second-guess, preach, or, more to the point, delay.

Apparently the 7th Circuit thinks so too.

[bernard11]

But would we really say that such a requirement insults the President's intelligence, that it demeans him as a person, that respect for his status as an intelligent, thinking person necessarily invalidates it?

That's not the full reason given by the court. Basically, they found that the law set up useless barriers to the exercise of a Constitutional right. It's sort of as if the President were required to consult with Congressional leaders before issuing a pardon.

[Brett Bellmore]

I guess we'd have to see what percentage of women change their minds after viewing the ultrasound, to determine if it's useless. "informed consent" is a legitimate legal requirement, even if some people would prefer the other sort of consent.

[James Pollock]

"even if some people would prefer the other sort of consent."

Odd phrasing, considering just a few comments ago you had no problem with the state sticking an ultrasound probe where the state legislature mandates said probe to be stuck.

YOU are one of the "some people" preferring the other sort of consent (which is to say, non-)

[James Pollock]

"I guess we'd have to see what percentage of women change their minds after viewing the ultrasound, to determine if it's useless."

You'll need to control for more variables.
Would the women who change their minds after viewing an ultrasound have ordered an ultrasound absent a mandatorily-delivered one? If so, then mandating one is still useless, since in that case it would only be ordered for women who don't change their mind after viewing.

Of course, the cynical person would want to see the ultrasound-machine-manufacturer's lobbying expenses, too, as a separate matter.

[bernard11]

Brett is consistent, but not in the usual way. Maybe "predictable" would be a better term.

[Jerry B.]

May the dissenters in the 5th Circuit Court interstate hand gun sales case be appointed to SCOTUS soon, please.

[ActualRightWingPatriot]

The idea that an overly broad statute doesn't violate the Constitution because it would be difficult to administer a narrower one is absurd.

[ActualRightWingPatriot]

The 11th Circuit case violates the common principles that states can preempt any of its municipalities (unless of course it's based on "animus" against people who like to have anal sex with other men, but I digress).

I should note that Jordan is a Cuban appointed by Obama, Wilson is a black appointed by Clinton, and Conway is a woman appointed by Bush Sr. (who incidentally appointed a lot of crap judges).

[Noscitur a sociis]

I should note that Jordan is a Cuban appointed by Obama, Wilson is a black appointed by Clinton, and Conway is a woman appointed by Bush Sr. (who incidentally appointed a lot of crap judges).

Why exactly should you do that?

[James Pollock]

Because it avoids the criticism this person keeps getting for his fascination with men having anal sex.

"See? Anal sex? I can talk about other things besides anal sex! Anal sex. With men!

[ActualRightWingPatriot]

Because it proves my hypothesis that, with few exceptions, only white heterosexual men are capable of logic and critical reasoning.

[James Pollock]

You're so exceptional!

[bernard11]

So much for decentralized government.

Federalists are jerks.

[jph12]

One of these days bernard11 will learn what a federalist is.

[VinniUSMC]

But not today. Or realistically any other day ending in "y".

[Eddy]

"Women, like all humans, are intellectual creatures with the ability to reason, consider, ponder, and challenge their own ideas and those of others."

The Wicked Witch of the West must be so jealous - the 7th Circuit just showed her how to *totally destroy* a straw man.

[David Nieporent]

The 11th Circuit case is frivolous. The plaintiffs should have been suing the local board of education in Birmingham for failing to teach them economics, such that they don't understand what minimum wages do.

[James Pollock]

"they don't understand what minimum wages do."

They make wages higher.

[JesseAz]

Hourly yes, but per the recent Oregon/Washington study it decreased monthly wages on a wrage.

[JesseAz]

Stupid phone... On average.

[James Pollock]

Ah, yes. The old "make wages higher, but allow fewer hours per month" dodge. And they fell for it!

[Pettifogger]

And so they do for the lucky ones who keep their jobs. But legislating that people who produce no more $7.25 an hour in value must be paid more than $7.25 will always and forever work unintended mischief.

[David Nieporent]

[Minimum wages] make wages higher.

For the people who keep their jobs.

[James Pollock]

"For the people who keep their jobs."

And also the people who replace the people who didn't keep their jobs.

[Rossami]

Which completely misses the point that many of those jobs are never replaced. Raising wages creates an incentive for employers to switch to "substitute goods". In the context of labor, that means investing in automation or doing without.

This isn't a "dodge" that people "fall for". It's empirical fact backed up by both evidence and a coherent economic theory that has stood the test of time and which produces testable predictions in this and other markets. Claiming otherwise is to deny basic science.

[James Pollock]

"Which completely misses the point that many of those jobs are never replaced."

If the job is never replaced, then they represent work that didn't need to be done.
Which has nothing to do with wages.

[Rossami]

Still missing the point, James. The work often clearly needs to be done or employers would not switch so consistently to automation.

Employers also switch to "substitute goods" in the form of labor that is not subject to the minimums. In other words, salaried managers take on new responsibilities and do work that had previously been delegated to minimum wage employees or they consolidate responsibilities to reduce the overhead, etc.

The point is that employers don't do any of those things unless they have an economic incentive to do so - which is often in the form of higher wages.

[Toranth]

In this instance, the Court should be praised for throwing out all the other, even more absurd, claims - that the state violated the Voting Rights Act, for example.

It is unfortunate that the idiot claim that a white lawmaker proposing a bill that impacts a majority-black town is racist is being allowed to proceed, but it is entirely possible that reason and math will win out at trial...

[Pettifogger]

I wouldn't bet on math winning out. Most lawyers are would-be engineers who can't do math.

[bernard11]

they don't understand what minimum wages do.

What minimum wages do depends a lot on the nature of the labor market.

Many labor markets are far from competitive in the sense of the assumptions that drive your argument.

It's a tricky question, not really answered by chapter 1 supply-demand curves.

[loki13]

"The 11th Circuit case is frivolous. The plaintiffs should have been suing the local board of education in Birmingham for failing to teach them economics, such that they don't understand what minimum wages do."

It is ... surprising.

After the ACA litigation, I guess I have internally re-calibrated what frivolous means.

What I would say is that, while apparently true, the allegations still can't make a legal claim.

[Pettifogger]

It's comforting to know the guy renouncing his citizenship has a human right to emigrate to Mexico.

[James Pollock]

Better that than the "Sovereign Citizen" nuts who want to renounce their citizenship and stay here. Because Admiralty law, and fringe on the flag in the courtroom!

[Pettifogger]

Sovereign citizens are nuts as are the Texas Republic buffoons with whom I've had some dealings. I had to acquire title to real estate from people who insisted that the entity holding title was a common-law corporation. They disclaimed the common law of any particular state, claiming to rely on some ethereal common law not tied to any government. When it became clear to them that they'd get no money unless the entity were treated as a Texas general partnership, they eventually came around.

[James Pollock]

My favorites are the ones who insist they don't need driver's licenses, because they aren't driving, they're "traveling".

[ReaderY]

The "diverting resources" argument has always struck me as a very weak basis to claim standing. Is an advocacy organization on, say, abortion injured-in-fact by the Donald Trump's having having nominated Kavanaugh for Supreme Court, since by doing so they have to devote resources they would prefer to be spending on other things and could spend on other things if someone more favorable to abortion had been nominated instead?

Since standing doesn't depend on whether ones case has legal merit, any advocacy group opposing any position on any issue can claim "injury" by saying a law, or even advocacy, supporting the position forces it to devote resources "against its will."

Why in the world is it against its will? Nobody is forcing the advocacy group to advocate anything. It is choosing to do so voluntarily. A law an advocacy group doesn't like, and the allocation of resources against it, causes it no concrete injury for standing purposes.

[Michael Ejercito]

Who has made this "diverting resources" argument?

[David Nieporent]

Some of the organizational plaintiffs in the minimum wage case.

[David Bremer]

The "diverting resources" argument requires an illegal act and the organization spending funds to oppose those illegal acts.

I'm not sufficiently knowledgeable about the area to argue the nuances of this. But it seems that the president nominating someone to the Supreme Court wouldn't come anywhere near this doctrine. So, if you're going to argue about it, it seems like you'll need a much better example.

[ReaderY]

But ordinary standing doesn't depend on whether the act was legal or not -that's a merits question. In ordinary standing, the plaintiff has to have been injured in some fashion other than by the pure illegality of the act. And in any case where lthere's a legitimate basis for jurisdiction, the advocacy group should be able to find plaintiffs who experienced actual injury (as occurred here.)

Can a lawyer claim to have been personally injured by having to advocate for a client instead of taking up some other case? Does every time a lawyer advocates for a person claiming an injury, or perhaps does so pro bono or at a reduced rate, the act of advocacy injures the lawyer and gives the lawyer standing to sue?

What's the difference between the advocacy group and the advocate?

[ReaderY]

In the immigration search case, the deportees might have a claim against the New York State Police, but why would they have a claim against ICE? Only "the people" have any 4th Amendmenf right to security in their persons, papers and effects and to freedom from unreasonable searches and seizures. The Equal Protection Clause might make the 4th Amendment more broadly applicable in a claim against a state. But no Equal Protection Clause applies to the federal government, and aliens are a classic example of the difference. How can an illegal alien claim the protection of the 4th Amendment against the Federal Government, any more than claim (say) a right to own a gun?