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Short Circuit: A Roundup of Recent Federal Court Decisions

Weeds, word counts, and would-be blood donors.

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

New on the podcast: A special Fifth Circuit extravaganza recorded before a live student audience at the University of Texas School of Law in Austin at the invitation of the UT chapter of the Federalist Society. Featuring: Jane Webre (a partner at Scott Douglass & McConnico), Kyle Hawkins (the solicitor general of Texas), Steve Vladeck (a law professor at UT), and Evan Young (a partner at Baker Botts and a law professor at UT). Click here for iTunes.

  • Plaintiffs: The Metropolitan Washington Airports Authority shouldn't be using revenue from Dulles airport's toll road to pay for a new Metrorail line (scheduled for completion in 2020) connecting Dulles to D.C. Metro. Indeed, the structure of the airport authority violates the nondelegation doctrine, the Guarantee Clause, and the Appointments Clause. Fourth Circuit: Not so. The authority is not a federal entity, so it is not subject to the limitations of the Constitution. Statutory claims fail, too.
  • A Texas plasma "donation" center rejects a man who limps and a woman who uses a service animal. The center claims they're not in good enough health to give blood; the would-be donors claim the center is discriminating against them because they're disabled. An Americans with Disabilities Act violation? Not bloody likely, says the Fifth Circuit; the center would have to be a "service establishment" for the ADA to apply, and getting paid for your blood isn't a service. But we're more sanguine about your chances under the state ADA equivalent. That question we certify to the Supreme Court of Texas.
  • Responding to the concerns of "aroused citizens," Dallas officials prohibit convention center from contracting with company that stages "love- and sex-themed" conventions. The company sues. City: We prohibited the convention center only from contracting with the company—we didn't say anything about contracting with the company's wholly owned subsidiary that was meant to stage this particular convention. Fifth Circuit (over a dissent): Nice try. The company has standing to sue.
  • A sad case. Woman visits a Baytown, Tex. Walmart nine times in 27 hours, each time buying cans of dust remover. (On one visit, she had soiled herself; on another, she was naked from the waist down. (Employees gave her a towel and a dress.)) She buys at least 60 cans total. Early the following day, she dies in the Walmart parking lot. Death by inhaling dust remover. Fifth Circuit: But that doesn't mean you can sue Walmart or its employees. Under Texas law, Walmart did not have to protect her from herself. Case dismissed. No second try in state court.
  • A sad case. Avid bow hunter, sitting at home with his bow, has accident; the bow's metal cable guard lodges itself deep in his brain. He dies. There are no witnesses. Bow manufacturer: He must have placed his head inside bow while pulling the drawstring; can't hold us liable for that. Family: He wouldn't have done that; the bow must have been defective. District court: The family failed to present evidence he was engaged in a reasonably anticipated use of the bow. Case dismissed. Fifth Circuit: Affirmed.
  • Akron, Ohio officer responds to call about two suspicious men in neighborhood, stops two men standing on sidewalk. One man twists away from a pat-down; a struggle ensues; the man's pistol discharges and he runs away. The cop shoots him dead. Sixth Circuit: No qualified immunity for the stop and frisk; we saw the dashcam video, and a jury should, too, to determine whether the men appeared dangerous. But qualified immunity for the shooting; a scuffle, discharged gun, and fleeing suspect might very well lead an officer to believe the situation dangerous.
  • A hot dog may or may not be a sandwich, but it would be "nonsense"—as Judge Thapar notes—to consider pizza to be a hotdog, hamburger, or bratwurst. Anyways, this appellant is going to jail for running drugs, and three judges on the Sixth Circuit have four opinions about whether that's right or wrong and whether Auer deference is good or bad.
  • Wisconsin teacher is listed as "under investigation" on public website for 17 months without explanation. Investigation is dropped; his name is removed. Teacher: Too late! The damage is done. Seventh Circuit: Can't sue the superintendent in his official capacity; that's barred by the Eleventh Amendment. Judge Hamilton, concurring: Which is the correct outcome, but "[t]he combination of stigma and delay poses serious due process questions even if [the teacher] himself is not entitled to relief under federal law."
  • Police officer, surveilling a Chicago house based on an informant's tip, develops a "hunch" that a man at the house has drugs in the bag he's carrying. Oops: He doesn't! No matter: Eight officers continue detaining the man until the officer develops a second "hunch" that drugs are probably in the house. And bingo: heroin! Sadly, says the Seventh Circuit, the Constitution doesn't allow officers to detain people while they develop serial hunches about places to search.
  • There are two things your humble editor knows with absolute conviction: You don't bring a knife to a gunfight, and you don't get into a debate about brief formatting with Judge Easterbrook of the Seventh Circuit. This pro se litigant was lucky to escape largely unscathed, and with a better understanding of the difference between Microsoft Word's "Properties" and "Word Count" features.
  • Woman purchases a vacant residential lot in her neighborhood for $1 from the city of Chicago with the intention of converting it into a community garden. A city inspector deems the vegetation too tall. Six months later, the city issues a citation to the property owner and, after a hearing, imposes a $640 fine. Property owner: The delay between inspection and hearing violated my due process rights. Seventh Circuit: "Although a six month delay between inspection and citation may not be a model of administrative efficiency," it's constitutional.
  • Seventy percent of the word's cocoa is produced in the Ivory Coast, where child slavery is rampant. Former child slaves who were kidnapped and forced to work for up to 14 hours a day without pay sue large chocolate companies in the U.S., alleging they aided and abetted slavery. Companies: U.S. courts can't hear the suit because any harm took place overseas. Ninth Circuit: The companies are alleged to have had employees from their U.S. headquarters regularly inspect operations in the Ivory Coast and report back to the U.S., where financing decisions were made. That's sufficiently domestic to allow the case to go forward.
  • Jury deadlocks in murder trial; prosecutors failed to establish defendant pulled the trigger; a state court judge dismisses the case "without prejudice." Prosecutors retry it, get a conviction. The defendant files a habeas petition in federal court: The conviction violates the Double Jeopardy Clause. While that petition is pending, a state court vacates the conviction. (Prosecutors withheld exculpatory evidence.) The defendant remains in custody, awaiting another retrial. Ninth Circuit: His federal habeas petition is not moot, even though the conviction it challenges is no more. On remand, he can convert it to a petition challenging his detention.
  • The Eleventh Circuit takes a tour through the history of copyright and the nature of authorship in exploring whether the state of Georgia can assert copyright in its annotated state laws and thereby prevent a nonprofit from making them available for free online. (It can't.)
  • Lawyer who is licensed in Kentucky, who has an office in Kentucky, and who is working only on matters before Kentucky courts makes fateful decision to work from her firm's office just over the river in Ohio (while her application for admission in Ohio is pending). Unauthorized practice of law? Yes, says the Ohio Board of Commissioners on Character and Fitness. No, says a majority of the Ohio Supreme Court, because Rule 5.5 allows "temporary" practice. Yes, says the concurrence (because this is not temporary practice), but Rule 5.5 is an unconstitutional (state and federal) restriction on the lawyer's right to pursue her chosen profession.
  • The rational basis test is hard to fail, says the Middle District of Tennessee, but Tennessee's policy of rescinding the driver's licenses of people who fail to pay criminal fines and fees is up—or maybe down—to the task.

For years, non-lawyers in Rhode Island have been offering real estate closing related services, subject to authorization by the General Assembly. "Not so fast!" says a committee of lawyers to the Rhode Island Supreme Court. Those things are the "practice of law," so only lawyers get to do them, notwithstanding the General Assembly and even if there is no evidence of public harm. "Not so fast!" says IJ, in a trio of amicus briefs. The committee's proposed restrictions violate the "fundamental right to engage in a lawful calling" under the state constitution as well as the First Amendment's protections for occupational speech. Read more about the cases and briefs here.

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  • BillyG||

    Regarding Wilkerson v. City of Akron
    Once an officer reasonably believes a suspect is dangerous to him, other officers, or other citizens, he may use deadly force and may do so even if the suspect attempts to flee.

    Reasonably believes? This situation is up for debate on whether its reasonable or not. In many cases, its an unreasonable belief at best.

  • nonzenze||

    Indeed, in many cases it's questionable. But in this one, I'm not convinced one way or another.

  • An Owl Named Dur||

    "Lawyer who is licensed in Kentucky, who has an office in Kentucky, and who is working only on matters before Kentucky courts makes fateful decision to work from her firm's office just over the river in Ohio."

    This may be the most egregious lawyer licensing cartel BS that I've ever seen. If this is the standard, I've practiced without a license more than a hundred times. Hell, when I'm on conference calls while vacationing in Hawaii, I'm practicing without a license:

  • David Nieporent||

    Vacations are temporary. The whole issue in this case was that her presence in Ohio was not really temporary.

  • nonzenze||

    Why does the office matter and not the subject matter on which she was working?

    If she's licensed in KY and working exclusively on matters before the KY courts, then what interest does Ohio have here?

  • David Nieporent||

    Licenses apply to physical location, not to subject matter.

    I am admitted to practice in NY and NJ. If I am physically present in one of those states, I am free to advise people on New York law, Kentucky law, French law, or Martian law. It could be malpractice for me to do so -- but it is not UPL, because I am not practicing law in Kentucky, France, or on Mars by opining on Kentucky law, French law, or Martian law. I am practicing law in NY or NJ.

    Now, if I'm on vacation with my family at Disneyworld and I give advice over the phone to one of my clients, yes, I'm technically practicing law in Florida without a license, but it's de minimis. (And many states, including Ohio's, expressly allow that in their rules of professional conduct.) But if I move to Orlando and continue advising my clients, that's a different story. That's what she did. And she wasn't just working from her home on the north side of the Ohio River and not telling her clients where she was; she was actually working out of her firm's Ohio office.

  • Jim Logajan||

    "Seventy percent of the word's cocoa is produced in the Ivory Coast,"

    Word: world's.

    "The Eleventh Circuit takes a tour through the history of copyright and the nature of authorship in exploring whether the state of Georgia can assert copyright in its annotated state laws and thereby prevent a nonprofit from making them available for free online. (It can't.)"

    I believe the grammar rule-of-thumb is that a pronoun refers to the closest antecedent. If so, then the "it" of "It can't" would seem to refer to the nonprofit, but the court ruling indicates "it" refers to the state of Georgia. Or maybe I have that rule wrong?

    Appreciate the roundups and effort required to briefly summarize them, but when the sentences involve multiple subjects, you may have to get more wordy to avoid pronoun ambiguity for those of us who already have a pretty hard time understanding wor(l)d problems!

  • bernard11||

    I'm not seeing the problem.

    It's a yes or no question. Can X prevent Y? It can't. The repeated use of "can" makes the meaning perfectly clear, to me. Here X is Georgia, Y is "the nonprofit publishing the code."

    "Did the guard rail prevent the car from sliding off the road? It didn't."

    "Can the armor prevent a spear from wounding the soldier? It can."

  • mse326||

    That may be the rule of thumb within a sentence, but I don't think that applies here. The rule of thumb here would be the pronoun used as the subject of an answer refers to the antecedent subject of the question. The subject of the question is the state of Georgia, so that is who the pronoun as subject of the answer refers.

  • santamonica811||

    "The Eleventh Circuit takes a tour through the history of copyright and the nature of authorship in exploring whether the state of Georgia can assert copyright in its annotated state laws and thereby prevent a nonprofit from making them available for free online. (It can't.)"

    Feedback: This one was poorly written. "It can't." refers to whom??? "It" might be the state of Georgia, or it might be the nonprofit. Impossible to tell from the context...when you give a result in your summary, it should make clear to readers which side prevailed.

  • santamonica811||

    Ah, I see Jim beat me to it.

  • Careless||

    I'm not sure why this would be confusing. It's incoherent if you try to apply it to it to the nonprofit. The "it can't" refers to the "whether" clause, which is about Georgia.

  • Intelligent Mr Toad||

    RE: "Responding to the concerns of "aroused citizens," Dallas officials prohibit convention center from contracting with company that stages "love- and sex-themed" conventions."

    Well, the citizens who complained don't NEED a love-and-sex-themed convention, because they are already aroused. Perfectly understandable.

  • Beldar||

    This reminds me of the people who criticized the Texas that criminalized possession, with intent to distribute for commercial sales, dildos. Possession of more than six was deemed prima facie evidence of intent to distribute, which apparently some people think is barbarous. Me, I think a six-dildo per person safe harbor is fairly enlightened, if you're going to have a dildo law at all, which I'd rather Texas didn't.

  • Sarcastr0||

    Six-dildo Safe Harbor would be a good album name.

  • Bruce Hayden||

    "The Eleventh Circuit takes a tour through the history of copyright and the nature of authorship in exploring whether the state of Georgia can assert copyright in its annotated state laws and thereby prevent a nonprofit from making them available for free online. (It can't.)"

    Looking at the substance of the ruling, instead of how the decision was presented, I liked the result. Georgia has official annotated state laws, that are created by Lexis, overseen by a commission or committee authorized by statute, with a majority on such being state employees, and formally adopted by the legislature every year. The Court essentially started from the premise that laws belong to the people, and thus are not copyrightable. Lexis (and West, etc) create annotations all the time, and lawyers depend on them on a routine basis. And those annotations are protected by copyright. What was significant here was that Lexis operated under Georgia state control, and the annotations became official, upon a vote of the legislature. You can look at the result (of there being no copyright in the annotations) as either being akin to there being no copyright in state (or federal) statutes or cases, or as a Work for Hire situation, with the citizens of Georgia owning the copyright (which puts them in the public domain).

  • LiborCon||

    You can get high on dust remover?

  • bernard11||

    My advice is, "Don't try it."

  • DjDiverDan||

    Actually, I think that the lesson of the Walmart case is that you can get dead on dust remover.

  • santamonica811||

    When I was first reading the summary, my first thought was, "This woman is mentally ill, has some sort of anti-germ phobia, and will be using all those bottles of dust remover to pathologically get rid of the (real and imagined) dust in her home. I *never* would have thought that this dust remover would be used for any other purpose than, well, blowing away dust/dirt. Unless Walmart had plenty of advance knowledge that it was often misused (eg, sniffing glue used to make model airplanes, as was reportedly done when I was a kid), it would have been crazy to blame it (ie, Walmart) in any way.

    But, definitely a sad case. Mental illness is a bitch, and one hopes this poor woman finally has some peace..

  • Beldar||

    We see what you did here: "more sanguine about your chances." Snort, snarfle.

  • JonFrum||

    "the Ivory Coast, where child slavery is rampant. "


    This is the second time I've seen this cited in recent months. And no one cares. What the fuck?

  • mad_kalak||

    Compassion fatigue.

  • ReaderY||

    For the drivers' licence case, I continue to think that suspending drivers licenses for nonpayment if fines passes the low bar for rational basis scrutiny. But the Excessive Fines Clause provides a legitimate, textual basis for applying heightened scrutiny. If a constitutional provision is clearly and directly relevant to a claim - the plaintiffs are claiming they can't pay their fines - courts have some leeway in interpreting it. It would be completely legitimate for courts to hold that a draconian remedy for nonpayment of fines, at least without a hearing to determine if payment is possible, violates the Clause.

  • David Nieporent||

    For the drivers' licence case, I continue to think that suspending drivers licenses for nonpayment if fines passes the low bar for rational basis scrutiny.

    It might in the abstract. But not if the drivers do not pay because they don't have the money to do so. The only reasons to suspend a license would be (a) public safety, or (b) to coerce people to pay their fines. But only suspending the licenses of people who can't pay their fines does nothing for public safety, and it can't coerce them to pay if they can't afford to pay. And in fact it's completely irrational, since it actually makes it harder for them to pay.

  • Soronel Haetir||

    Actually I could see even the premise that people who can't pay fines are a poor risk to allow onto the roads being enough for rational basis. Remember, being able to drive is a privilege.

  • ReaderY||

    But rational basis only requires rationality in the abstract - a rational person could think it rational. It need Only make sense in a subset of circumstances. It doesn't have to make sense for yours. You can't challenge the traffic laws just because you can show there was nobody else on the road when you sped or ran the red light.

    More fundamentally, if excessive fines fail due process, why would the Framers have enacted an Excessive Fines clause as part of the Bill of Rights? Decoration? Whimsy? There has to be some rational basis for each constitutional clause. Each clause has to provide something that the rest doesn't.

    It's the fact that the clause is sitting right there that makes it the clause one needs to interpret to address situations like this.

  • David Nieporent||

    More fundamentally, if excessive fines fail due process, why would the Framers have enacted an Excessive Fines clause as part of the Bill of Rights? Decoration? Whimsy? There has to be some rational basis for each constitutional clause. Each clause has to provide something that the rest doesn't.

    I don't understand your question. This isn't an excessive fines case. The plaintiffs didn't argue that the fines were too high, either in relation to the offense or in relation to their specific situations. The plaintiffs were challenging the policy of suspending licenses for nonpayment of fines even when the reason for nonpayment was inability to pay. The plaintiffs' victory would not lower the amount of money they owed; all it would do is allow them to drive.

  • ReaderY||

    I don't understand your failure to understand. Why isn't their argument that they were unable to pay their fines an argument that their fines were too high (for them)? And isn't what excessive means?

    Sure, the Supreme Court's precedents don't particularize the Excessive Fines Clause, just as they don't particularize the rational basis test.

    But if you're going to particularize a clause that wasn't previously particilarized, why not a clause whose text specifically addresses the plaintiffs' specific problem under a reasonable interpretation? After all, English law traditionally means-rested fines and required considering ability to pay, just as they traditionally did for bail. It would be perfectly legitimate to interpret "excessive" as "too damn high" for a particular person.

    I just want to make a legitimist case here. If you're going to rule liberally, why not make a liberal interpretation of on-point text? An expansive reading of on-point text may be a good or bad interpretation, but it's a legitimate interpretation. One could agree or disagree with such a ruling. But one couldn't challenge its legitimacy. Agree with it or not, the Court would be doing its job and applying its designated powers rather than using amorphous text to rule as it pleases.

  • MatthewSlyfield||

    "Why isn't their argument that they were unable to pay their fines an argument that their fines were too high (for them)?"

    Because they aren't challenging the validity of the fine itself, only one particular added penalty for non-payment.

  • David Nieporent||

    I don't understand your failure to understand. Why isn't their argument that they were unable to pay their fines an argument that their fines were too high (for them)?

    I don't understand your failure to understand my failure to understand. It isn't that argument, because that isn't their argument. They are simply not challenging the validity of the fines; that is not the claim they are raising or the relief they are seeking. They are saying, "Yes, we agree that we owe the money. Yes, we agree that we have to pay the money. But we don't think our licenses should be suspended."

    If they win, they still owe the full amount of the fines, because they didn't claim the fines were excessive. What they win is the right to keep their licenses (or, rather, a right to a hearing to determine whether they can keep their licenses).

    I am not saying that your proposed argument is crazy; I am simply saying that it isn't the argument that they raised.

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