Short Circuit: A Roundup of Recent Federal Court Decisions

Covered cheeks, cheeky hyphens, and uncovered booking photos.

Friends, federal law gives private natural gas pipeline companies the power of eminent domain to take land—but not the power to take immediate possession of land. Can courts issue injunctions granting immediate possession despite Congress' refusal to delegate that power? IJ argues no in this petition for rehearing filed with the Third Circuit.

• Man acquitted of felony theft by reason of insanity is committed to Augusta, Maine mental hospital where he spends 10 years. He's then moved to a group residential program, but after a year, medical staff decide he needs to be recommitted. Man does not take the news well, whips knife out of his pocket, starts stabbing himself. Police officer shoots him three times without warning. Qualified immunity? First Circuit: Not if a jury agrees with the man's version of events. Go to trial.
• Fifth Circuit (September): A Louisiana law that requires erotic dancers between the ages of 18 and 20 to fully cover their breasts and buttocks is probably unconstitutionally vague. Fifth Circuit (on panel rehearing): Just kidding. Dancers may "want to wear the bare minimum, but the Constitution does not guarantee them that level of specificity." The authorities can continue enforcing the law while the suit proceeds.
• Woman serving time (for drug possession) agrees to testify in trial of man who allegedly raped her 12 years earlier. Officials transfer her to Harris County, Tex. jail to await the trial. Meanwhile, her release date arrives, but prosecutors and jail officials keep her in custody for an additional 53 days. Fifth Circuit: Tough. No liability for anyone.
• Plaintiff wins $1,000 in statutory damages for technical violation of Fair Debt Collection Practices Act. (Debt collector illegally used the words "credit bureau" in its business name.) After plaintiff's lawyers seek $130k in fees, district court awards them the princely sum of $0. Fifth Circuit: Just so. While fees are ordinarily mandatory, "special circumstances" obtain here: The record suggests that the plaintiff colluded with her lawyers to generate this "outrageous" fee-heavy lawsuit in Texas instead of in her home state of Louisiana. We also deplore "the poor draftsmanship that permeates the pleadings," the court notes (before honoring Muphry's law with a cheekily errant hyphen in the next sentence).
• Allegation: Mississippi prisoner needs hip replacement surgery; prison medical administrator refuses to pay for it. Fifth Circuit: No qualified immunity for that. You can't be deliberately indifferent to a prisoner's medical needs. On remand, the district court should seriously consider giving the prisoner a lawyer. Concurrence: But there's also evidence that the surgery didn't happen because of the prisoner himself. The district court should seriously consider that too.
• Was it unconstitutional for Dearborn Heights, Mich. officials to deny a conservative pundit's Freedom of Information Act request for booking photos of a Muslim woman without her headscarf? No, answers the Sixth Circuit, in an opinion not much longer than this summary.
• Allegation: For years, the nation's third-largest cable TV distributor declined to distribute TV networks operated by an African-American-owned company. Moreover, the cable distributor's executives put off meetings, proffered disingenuous explanations for its refusal to do business, and told African-American protesters outside the distributor's HQ "to get off welfare." Ninth Circuit: If discriminatory intent played any role—even as a single factor among several—in the distributor's decision not to carry the networks, then the distributor violated federal law. And while we're here, that federal law does not violate the First Amendment.
• Residents challenge Los Angeles' redistricting of Council District 10, claiming it was impermissibly race-based. Ninth Circuit: Dismissal affirmed. Residents had to show that redistricting decisions were motivated predominantly by race. And, says the court, it's not enough that the official who drafted the initial proposal might have been so motivated. Or that the L.A. Council president said that racial considerations were his "priority." Residents still couldn't show that those considerations predominated over the deliberations as a whole. Nor could the residents depose officials who were involved in the redistricting.
• After anonymous 911 tip about armed man near shopping plaza, Indio, Calif. cop approaches man matching tipster's description. Man flees. Cop pursues, shoots man three times in the back. Ninth Circuit: There's a factual dispute about whether the fleeing man had a gun in his hand during the chase. For esoteric qualified-immunity reasons, the court can't immediately review that issue, so to trial it must go. But, the court adds, the cop's initial interaction with the man (pre-chase) was not clearly unconstitutional; the 911 call prompted enough suspicion for an investigatory stop.
• American mother flees Panama with her infant sons without telling their Panamanian father. A federal court orders them returned. While custody proceedings are pending in Panama, the mother flees with them a second time. District court: In the two and a half years it took the father to locate them, they became so settled that an exception to the Hague Convention on child abduction applies; no need to return the boys. Eleventh Circuit: Return them.
• Can a fax message from a gov't official asserting ownership over land constitute a "physical taking" of the land? No, says two-thirds of a Federal Circuit panel, in an opinion that reproduces a map from 1887 but sadly does not explain why people are still sending faxes. (Via @NY_Condemnation.)
• Feds prosecute doctor for allegedly performing female genital mutilation upon nine children in Livonia, Mich. clinic. But does Congress have the power to enact the law banning the procedure? Eastern District of Michigan: No. Neither the Necessary and Proper Clause nor the Commerce Clause authorizes this law. This is local criminal activity that doesn't involve economic enterprise; it is for the states to regulate, not Congress. (Click here for local news coverage.)
• Woman testifies that the father of her children beat her up, held a knife to baby's throat. She also states that she didn't want to testify, but prosecutors threatened to jail her and put her children in foster care if she didn't. The next day of the trial, she partially recants, says the man didn't hold a knife to the baby. He's convicted. She's indicted, pleads guilty to perjury, sentenced to probation. Georgia appeals court: No need to revisit the man's conviction. (Via @ASFleischman.)

Comments

[Hasdrubal]

Interesting double standard there in the Ninth Circuit: If you're a corporation, " If discriminatory intent played any role?even as a single factor among several?in the distributor's decision not to carry the networks, then the distributor violated federal law." But, if you're a government, "Residents had to show that redistricting decisions were motivated predominantly by race. And, says the court, it's not enough that the official who drafted the initial proposal might have been so motived. Or that the L.A. Council president said that racial considerations were his "priority."'

[Ben of Houston]

What gets to me is that they cannot even depose the officials. That's a catch-22, as you cannot proceed unless they say race was a dominant factor, but they are obstructed from getting the most basic of evidence they would need.

[AmosArch]

Judges, even up at the highest levels are often not as smart as their vaunted reputation suggests. I figure half the people here could put together more a more coherent, consistent, and logical body of opinions than many at the highest levels of state and federal judiciary. Heck even people like Sarcastro and Kirkland might make as good a judge as some of them.

[Jeff_Kleppe]

Judge Kirkland... now there's a healthy dose of nightmare fuel. He'd spend the first part of his rulings describing his progressive education and the rest calling both parties "clingers". Ugh

[sscrane]

If you read the cases, they're relying on completely different standards based on completely different case history for the two different cases. Discrimination in contracts is covered by 42 U.S. Code ? 1981 and recent Supreme Court precedents have determined one standard to use for such cases, whereas the redistricting case is about voter rights and is based on different Supreme Court precedents (the one they seem to quote the most being Cooper v Harris from 2017).

In the one case, the plaintiff has to argue that racial discrimination was a contributing factor in their being denied a contract. In the other, the plaintiff has to argue that racial discrimination was a predominant motivating factor in the legislature's districting. These come straight from recent Supreme Court cases on the specific issues being discussed, the 9th Circuit didn't just pull the standards from thin air.

Also, as is probably not surprising, it's hard to sum up the facts of a multi-year lawsuit into two sentences.

[Toranth]

Residents challenge Los Angeles' redistricting of Council District 10, claiming it was impermissibly race-based. Ninth Circuit: Dismissal affirmed. ... it's not enough that the official who drafted the initial proposal might have been so motived. Or that the L.A. Council president said that racial considerations were his "priority." Residents still couldn't show that those considerations predominated over the deliberations as a whole. Nor could the residents depose officials who were involved in the redistricting.

I wonder if the Ninth Circuit will hold to this ruling in immigration cases...

Oh, who am I kidding. They've already ruled the exact opposite several times in the magic realm of law the 9th has discovered - TrumpLaw.

[santamonica811]

Wah, wah. The Ninth Circuit has been overruled most frequently . . . other than, of course, 3 other Circuits that have a higher rate of reversals. But I like Trump, and I don't like the Ninth Circuit, so something something something Ninth Circuit bad!!!

Brilliant legal analysis. Simply spot on.

[JesseAz]

Youre an ignorant fool as usual. I like how you use two ideas that aren't the same. Frequency and rate of reversal. The prior refers to number of reversala, by count. The latter by number of reversala by number of cases adjucated. I don't expect you to be intelligent enough to understand why you fucked up there though.

Your first inference is wrong. By full number the 9th is more frequent in reversals as they have more cases adjucated by the USSC. The latter you are right solely based on the number of cases taken from the 9th.

Your argument is that reversing 2 of 3 I'd worse than reversing 10 of 20. It's an idiotic talking point pushed by the dumbest of the left.

[mse326]

Frankly I find reversal counts in general a terrible way to judge. I'd be more receptive with reversals by at least 7 justices. Otherwise it seems enough of a reasonable position (I'll admit there are times even majority opinions that I don't think are reasonable but you'd have to go to the actual cases rather than mere count if we are going that route). 7+ at least requires "bipartisan" (sorry CJ Roberts) support. We can all agree the make up of the Court can and does change their ruling so deriding a Circuit Court because of when it got up there doesn't seem to be productive.

Counts should also include positions, not just cases. Most cases that go to the Court do so with a circuit split. There is no reason to only praise/denigrate a circuit just because their case was the one ultimately chosen of multiple that could have.

[MatthewSlyfield]

Except the raw case counts don't make a good metric because there is a very significant difference in the size of the populations of the various circuit courts and therefor in their overall caseload.

US Circuit Court populations

Not only is the 9th the largest circuit, it serves a population almost double that of the second largest circuit.

Out of 12 geographically defined Circuit courts (the 11 main circuits and the DC circuit), the 9th Circuit by itself serves nearly 20% of the US population, 19.74% to be exact.

Their case load reflects this, so they likely handle twice as many cases as any other circuit.

[TwelveInchPianist]

"Wah, wah. The Ninth Circuit has been overruled most frequently..."

Huh. They way I read the comment, Toranth pointed out an inconsistency in 9th circuit case law, and didn't mention their reversal rate at all. But you do you.

[Toranth]

Yeah, you read my post correctly.

I'm not sure where reversal counts or rates came in to it. Maybe they were responding to the wrong post?

[Eddy]

"Stop stabbing yourself...or I'll shoot!"

[santamonica811]

I had the exact same reaction. And for some reason, it brought to mind the famous quote, "The beatings will continue until morale improves." Not sure why that was.

[Cyclops]

My first thought was of Blazing Saddles -- when the Sheriff is surrounded by gunmen and then pulls his own gun to his head and says "Hold it! The next man that moves, the ni***r gets it!" See: https://www.youtube.com/watch?v=Z_JOGmXpe5I

[DiegoF]

What a weird law Louisiana has--18-to-21s can do erotic dancing (presumably even lap dancing) but must do only go-go, no topless (or th-thong-th-thong-thong-thongs). I don't know whether to be more surprised at this particular bit of paternalism toward younger adults, or surprised that no one else has tried it!

[DiegoF]

Also I wonder if--assuming this is an isolated provision and not part of a larger distinction between stripping and go-go regarding alcohol service, etc.--it has had the practical effect of banning 18-to-21s from adult entertainment, or whether any club in the state has bitten the bullet and just decided to specialize in teen dancers even though they have to keep their pasties on.

[Naaman Brown]

Paternalism toward young adults?
The new wisdom is that 18-20 year-olds are insufficiently mature to buy rifles.
18-20 year olds are now official considered and treated as immature minors.
Young adult will soon be just a literature genre at Amazon Kindle.

[MatthewSlyfield]

But there is a push in some state to lower the voting age to 16. Go figure.

[Brett Bellmore]

That's the sort of thing you do, when you doubt your party can do well among people who aren't gullible and immature.

[MatthewSlyfield]

It's generally the progressive Democrats behind the pushes to lower the voting age to 16.

[Longtobefree]

It is self evident that any person legally 'old enough' to decide to kill a baby without parental knoeledge is old enough for anything else.

[DiegoF]

That black cable channel is owned by Byron Allen! Way to bury the lede!

[DiegoF]

On the face of it, the idea of mutilating children's genitals automatically being a Federal crime is insane. But is it really so in light of other types of Federal overreach...The ridiculous expansion of the Commerce Clause into other areas? Decades of Federal "hate crime" legislation on behalf of "civil rights violations"? The Federal partial-birth abortion ban? I think the folks who are scandalized by this decision may have at least a certain point, in context.

[Naaman Brown]

Man acquitted of felony theft by reason of insanity is committed to Augusta, Maine mental hospital where he spends 10 years. He's then moved to a group residential program, but after a year, medical staff decide he needs to be recommitted. Man does not take the news well, whips knife out of his pocket, starts stabbing himself. Police officer shoots him three times without warning.

Here in Tennessee, as I have been told, it is illegal to use lethal force to stop a suicide.

[DiegoF]

"It's against Roman law to take one's own life. The penalty is death!"

--A Funny Thing Happened on the Way to the Forum

[Michael Ejercito]

So how is the Matthew Shepard Hate Crime law constitutional, under Judge Friedman's reasoning?

[William_Zanzinger]

Friedman's opinion only addresses arguments about application of the Necessary and Proper Clause (to enforce treaty obligations) and the Commerce Clause. Hate crime legislation would more likely be reviewed under the Equal Protection Clause of the 14th Amendment. So the analysis would be completely different.

[Michael Ejercito]

An equal protection challenge is not a challenge based on Congress's Article I authority.

[Noscitur a sociis]

Section five of the fourteenth amendment expressly provides that Congress can pass laws to enforce its provisions (including, obviously, the equal protection clause).

[mse326]

But the 14th is only addressed to states. The Court has made clear Section 5 only allows Congress to make laws regarding states, not individuals. That is why the Civil Rights Act is justified under the commerce clause.

[mse326]

The constitutionality of federal hate crime laws has been debated from the start. Many still don't think it is and I don't think SCOTUS has ruled on it yet. I know the Fifth Circuit has held it constitutional under the 13th Amendment.