MENU

Reason.com

Free Minds & Free Markets

VOLOKH CONSPIRACY

Mostly law professors, blogging on whatever we please since 2002 · Hosted by The Washington Post, 2014-2017 · Hosted by Reason 2017 · Sometimes contrarian · Often libertarian · Always independent

Short Circuit: A Roundup of Recent Federal Court Decisions

Body slams, reasonable retaliation, and Russian software.

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

Last week, IJ argued civil forfeiture at the U.S. Supreme Court. This week, at the Pennsylvania Supreme Court, we argued municipalities shouldn't be able to ticket homeowners for something that's not prohibited—or even mentioned—in the zoning code. And we launched two new cases: a challenge to a Fort Pierce, Fla. law that bans food trucks from operating within 500 feet of a restaurant and a challenge to a Seattle ordinance that requires renters to allow city inspectors into their homes without a warrant. Good times.

  • Kaspersky Lab makes antivirus software. It's also based in Russia, and its founder used to work for Russian intelligence. Which is why, in 2017, Congress thought it was maybe a bad idea for the federal government to keep using Kaspersky software. D.C. Circuit: And that is A-OK. This is obviously about national security, not punishing Kaspersky. The law doesn't run afoul of the rarely litigated "bill of attainder" clause of the Constitution, which prohibits Congress from passing laws to punish specific individuals.
  • How do federal courts defer to law enforcement? The First Circuit will count the ways: Manchester, N.H., man's 5-to-15-second drive was detectably drunken? His car in a parking lot at midnight was a traffic hazard that needed to be searched and towed? His moving his hand to his hip was "indexing," a subconscious suggestion that there was contraband in the car? Check, check, and check. Conviction affirmed.
  • Rensselaer County, N.Y. officer, Officer A, illegally accesses a confidential law enforcement database to stalk his ex-girlfriend's new paramour. Officer B (the ex-girlfriend's brother) reports Officer A's crime, triggering threats and reprisals from A and other gov't officials. Officer B sues for First Amendment retaliation. Second Circuit (over a dissent): It's only illegal retaliation if Officer A's crime was "a matter of public concern," and how could any of the retaliators have known whether it was? So qualified immunity for everyone.
  • New Jersey bans firearm magazines that hold more than 10 rounds (except for retired cops). A Second Amendment violation? The Third Circuit says no; nobody needs more than two or three bullets for self-defense (except for retired cops). Dissent: "Intermediate scrutiny requires more concrete and specific proof before the government may restrict any constitutional right, period."
  • This week, the Short Circuit team launched a new podcast series, Bound By Oath, on the Fourteenth Amendment. Episode One takes a look at the world before the Fourteenth through the story of John Rock, the first African-American admitted to the Supreme Court bar. Listen to it. Please.
  • Newark, N.J. police can detain occupants of car that's illegally idling fewer than 25 feet from a crosswalk in a "high crime" area, says the Third Circuit. But a clever firearm enhancement on top of a firearm possession conviction? That's too clever by half.
  • Charleston, W.Va. drug task force agent slaps a GPS tracker on a car without a warrant. Which is a "flagrant constitutional violation," says the Fourth Circuit, suppressing the evidence.
  • Honduran man caught illegally re-entering the U.S. from Mexico after 2012 deportation. Feds: His sentence should be enhanced as he was convicted in 2006 of beating his brother-in-law to death with a baseball bat in Missouri. Fifth Circuit (panel): Our precedent requires us to declare that such a crime is not one of violence, so a sentence enhancement is inappropriate. Fifth Circuit (en banc): "It is high time for this court to take a mulligan" on this issue, and we overrule 15 years of precedent.
  • Ocean Springs, Miss. officials pass resolution requiring that the state flag (complete with Confederate battle flag in its canton) be flown over the city hall and other government buildings. Nonprofit org and city residents sue under the Fair Housing Act, alleging that the flag illegally deters African-Americans from moving to the city. Can't sue over that, says the Fifth Circuit; exposure to the Mississippi state flag does not amount to an injury.
  • The Seventh Circuit says the district court was too hasty in concluding that a challenge to Illinois' wine-shipping restrictions was barred by the 21st Amendment—though the court notes that the plaintiffs will have an uphill battle if a currently pending Supreme Court case doesn't go their way. (That Supreme Court case, Tennessee Wine & Spirits Retailers Association v. Blair, is an IJ case.)
  • Illinois woman pleads guilty to charges related to drug manufacturing. A 2-decade-old felony conviction for drug possession in California triggers a recidivist enhancement that would double the five-year mandatory minimum. But wait! Before sentencing, a California state court reclassified the woman's previous conviction to a misdemeanor. So no enhancement, right? Seventh Circuit: Nice try, but reclassifying a crime doesn't change the historical fact that you were previously convicted of a felony. Ten years it is.
  • Federal law criminalizes "encouraging or inducing" an alien to come to or remain in the U.S. (so long as the encourager knows of or recklessly disregards the fact that the alien will be doing so illegally). That, says the Ninth Circuit, looks a whole lot like a law criminalizing speech. Tons of speech, including, for example, a grandmother's saying to her undocumented grandson: "I encourage you to stay." The scenario actually before the court is far less sympathetic. (Mail fraud featured prominently.) But even so, the court concludes, the law's overbreadth makes it invalid under the First Amendment.
  • Enthusiasts of locomotive-engineer chairs rejoice at the Tenth Circuit's 20-page opinion (complete with a photo) on whether injuries caused by one such chair give rise to strict liability on the part of the train company under the Federal Locomotive Inspection Act, an amendment to the Federal Employers' Liability Act. For the vanishingly few of you who don't want to read the opinion in full, the answer is: thumbs up to strict liability.
  • Arrestee arrives at El Paso County, Colo. jail with a broken foot encased in a medical boot. Allegation: The jail's medical provider removed the boot, took away the arrestee's wheelchair and crutches. Forced to hobble, the arrestee suffers new fractures in his foot. Tenth Circuit: His suit can proceed against the medical provider individually (though not against her employer or the county).
  • And in en banc news, the Eighth Circuit will reconsider its decision to grant qualified immunity to a Wymore, Neb. officer who body-slammed a 5-foot, 130-pound woman as she walked away from him. (Click here for local news. Click here for an amicus brief urging the court to grant rethink on qualified immunity.)

Attention 1Ls and 2Ls! Every summer, IJ hires the most reasoned and reasonable law students to work in our offices in Arlington, Austin, Miami, Minneapolis, Seattle, and Tempe. Fellows get an unparalleled opportunity to make an impact on IJ's cutting-edge constitutional litigation. Not only is the summer extremely substantive in terms of work product, but students also participate in intensive legal and communications trainings, attend seminars, and integrate fully into IJ's office and culture. Learn more about the program here and apply now.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Pyrroc||

    "The Third Circuit says no; nobody needs more than two or three bullets for self-defense (except for retired cops)."

    Apparently retired law enforcement officers are worse shots than members of the general public?

  • a ab abc abcd abcde abcdef ahf||

    This is known.

  • TangoDelta||

    Why doesn't the 14th Amendment's equal protection clause doesn't apply to retired cops or is it just a matter of some animals are more equal than others?

  • TangoDelta||

    Damn isn't button still edit working.

  • Noscitur a sociis||

    How do federal courts defer to law enforcement? The First Circuit will count the ways: Manchester, N.H., man's 5-to-15-second drive was detectably drunken? His car in a parking lot at midnight was a traffic hazard that needed to be searched and towed? His moving his hand to his hip was "indexing," a subconscious suggestion that there was contraband in the car? Check, check, and check. Conviction affirmed.

    I realize these summaries emphasize entertainment value over rigorous accuracy, but this description is pretty much an outright lie.

  • jdgalt1||

    Please enlighten us.

  • MatthewSlyfield||

    I'll take a crack at this, piece by piece.

    "Manchester, N.H., man's 5-to-15-second drive was detectably drunken?"

    I'll call that a fair characterization.

    "His car in a parking lot at midnight was a traffic hazard that needed to be searched and towed?"

    Not so much.


    Robinson and Zigler testified that, when a driver is arrested for driving under the influence, HPD policy calls for the vehicle to be towed. However, both officers also stated that they sometimes permit an unimpaired, licensed person authorized by the arrestee to take the vehicle themselves in order to save the arrestee the
    cost of a tow. In this instance, the officers stated that two individuals came forward at the scene of the arrest and identified themselves as Davis's friends but refused Robinson's offer that they take the Vehicle away on Davis's behalf.

    As to the search of the vehicle, Davis was not the registered owner of the car, and the court notes that HPD policy is that an inventory search be done on any vehicle towed when the driver is arrested and the owner of the vehicle is not present

  • MatthewSlyfield||

    " His moving his hand to his hip was "indexing," a subconscious suggestion that there was contraband in the car?"

    Yeah, I'll put this in the same category as officers who shoot suspects who turn out to be unarmed and later claim they shot because the suspect was "reaching for his waist band" with the implication that they believed that the suspect was reaching for a gun in the waist band.

  • TangoDelta||

    Sounds like he was lucky the cops didn't proceed with a mag dump into his body.

  • ||

    The 3rd Circuit decision on gun magazines was written by a black man and a Jewish woman, each appointed by Obongo.

  • Rev. Arthur L. Kirkland||

    Do conservatives still wonder why their preferences seem destined to be doomed as America improves in predictable ways?

    Carry on, clingers. So far as your betters permit, anyway.

  • ||

    If you think the presence of these perverts on the bench improves America, I'd like to know what you think detracts from it.

    Jewish women are ugly, rude, disgusting, emotional, bossy, unpatriotic people. There's a reason I refused to date any (to my parents' chagrin) after adulthood.

  • PoxOnBothYourHouses||

    Your loss is their gain (the women's; I don't know about your parents')

  • ||

    I'm happily married to a conservative gentile woman, and my life is better for it.

  • Rev. Arthur L. Kirkland||

    What is her opinion concerning the 'women should not be permitted to vote' debate?

  • ||

    She agrees, and votes the way I tell her to.

  • Ben of Houston||

    Even for a parody account, you're being a bit over the top.

  • Stormy Dragon||

    ARWP thinks only white Christian men should be allowed to be judges, and he is totally not racist.

  • RoyMo||

    You may be too quick to judge, how do we know he would discriminate against an American Indian Asatru adherent or a South Asian Scottish Rite Freemason?

  • Jimmy the Dane||

    Most Freemasons are of the Scottish Rite. Only a few Lodges still give out York Rite degrees (for the first 3).

  • ||

    Sorry, but I've seen little evidence that anyone outside of white Christian men are capable of objectivity.

  • Per Son||

    Then why do you vote?

  • Eddy||

    "Rensselaer County, N.Y. officer, Officer A, illegally accesses a confidential law enforcement database to stalk his ex-girlfriend's new paramour. Officer B (the ex-girlfriend's brother) reports Officer A's crime, triggering threats and reprisals from A and other gov't officials. Officer B sues for First Amendment retaliation. Second Circuit (over a dissent): It's only illegal retaliation if Officer A's crime was "a matter of public concern," and how could any of the retaliators have known whether it was? So qualified immunity for everyone."

    And in the linked opinion, the court says: "It was score‐settling, and had small practical significance to the public."

    This is I think what they call a fallacy of the false dilemma. Of course, score-settling is how the public finds out about a lot of misconduct by public servants. While one would like to think that faithful public servants, out of a pure and disinterested sense of duty, would turn in their criminal colleagues, a real-world perspective suggests that we shouldn't put too much faith in this. A personal grudge is more likely to inspire a cop to fink on another cop than a purist devotion to the public weal.

  • Eddy||

    And the opinion notes that the cop who illegally accessed the criminal-records database - as a result of his colleague turning him in - pled guilty to computer misuse (if only on a misdemeanor level).

    So...truthfully revealing criminal violations of privacy seems like speech on a matter of public interest.

    But they had a precedent! Apparently a teacher turned in a school official for forging the teacher's signature, and that was held not to be a matter of public concern. So that precedent helped create enough ambiguity that it wasn't "clearly established" that illegally accessing criminal databases was a matter of public concern.

  • bevis the lumberjack||

    As an engineer who is not a lawyer, I can't understand how a public employee using a database to stalk a private citizen who has no idea he/she is being stalked is not a matter of public concern. I mean, if they're inclined to do it to one of us, all of us are subject to being stalked.

  • Eddy||

    Technically, they said that you couldn't expect the cops to *know* if it was a matter of public concern.

    I mean, just because the matter involved behavior which got an officer convicted of a crime doesn't mean the public was entitled to know about it.

    The sooner they bury this hairsplitting-inducing doctrine the better.

  • Eddy||

    I mean, someone is probably already compiling a list of cases like this for their brief for abolishing qualified immunity.

  • TangoDelta||

    If it's not a matter of public concern then why is it illegal?

  • KevinP||

    The First Circuit just rubberstamped Massachusetts' May-Issue law.

    Hopefully, this finally makes it to SCOTUS since Kennedy is now off the bench.

    The Third Circuit is now evenly split between R and D appointees, with one R appointee pending in the Senate who will tip the balance after Flake flakes out forever. Hopefully, this will cause the mag ban to be struck down en banc.

  • ||

    The liberal judges don't even pretend anymore. They know their rulings are extrajudicial, and they don't care.

  • jdgalt1||

    If I were Officer B, the lesson I would learn from all this is that I should retaliate using the same methods as Officer A rather than trusting in the courts for a remedy.

    I don't know if the court will then learn a lesson about the incentive it has created by its ruling, but it ought to.

  • PoxOnBothYourHouses||

    jdgalt1: "I don't know if the court will then learn a lesson"

    You're not assuming that Officer B would deliberately get caught, are you?

  • Dilan Esper||

    "This week, the Short Circuit team launched a new podcast series, Bound By Oath, on the Fourteenth Amendment. Episode One takes a look at the world before the Fourteenth through the story of John Rock, the first African-American admitted to the Supreme Court bar. Listen to it. Please."

    I am so glad you guys are doing feature on John Rock. He is a great, forgotten historical figure. He coined the phrase "black is beautiful", among other things.

  • eyesay||

    "Manchester, N.H., man's 5-to-15-second drive was detectably drunken ..." Here is a restatement of the case without the bullshit. Musician performs at bar, departs, attempts to return to use the restroom. Even though he was providing entertainment services to the bar, the bar refuses to allow him back in to use the facilities. He borrowed keys to a friend's car and drove it with permission, but under the influence of alcohol, in search of a restroom. In a clear state of mind, he probably would have remembered that the owner of the car kept a loaded gun, but in his intoxication and urgent need of restroom facilities and desire not to unlawfully relieve himself in public, he didn't immediately remember this, and if he did remember, it was only after his restroom-search mission had started.

    Memo to law enforcement and the courts: driving while intoxicated is a crime. Needing to pee is not a crime. Driving someone else's car with permission is not a crime. If that car happens to have a weapon that is legal for the owner to have, but not for the vehicle borrower to have, and the borrower was intoxicated on entry of the vehicle, the crime is driving while intoxicated, not possession of a weapon that is not even his.

  • RoyMo||

    Thanks

  • Noscitur a sociis||

    In the opinion that I read, a felon drove his girlfriend's car while he was drunk, acknowledged that he knew about the gun and pretended to have a permit for it, then committed perjury at his trial. Good work by Hampton Police.

  • ranrod||

    They proffer Article 6, paragraph 2 of the U.S. Constitution – the 'supremacy clause' – for their notion of judicial supremacy. But when you read Article 6, paragraph 2, you realize that the Supreme Court isn't even mentioned, nor are federal courts of any kind mentioned. Article 6, paragraph 2 – known as the supremacy clause actually gives supremacy to the Constitution!
    Wholly opposite of this view of 'judicial supremacy' was the view held by America's founders. They viewed the judiciary as being the weakest branch of the government.
    At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous."
    https://lessermagistrate.com/ the-odious-fiction-destroying-america/

  • ranrod||

    Depending on Federal Judges to Protect Your Gun Rights Is a Bad Plan.
    This is a really bad strategy.
    At its core, the Second Amendment exists as a limit on federal authority. When you sue in federal court, you do so in the hope that the federal government will limit itself.
    Remember, federal courts operate as part of the federal government, and federal judges are nothing more than politically connected lawyers drawing federal paychecks. When we keep these facts in mind, it becomes pretty obvious we shouldn't count on federal courts to limit federal power, and uphold or preserve the Second Amendment.
    James Madison gave us the blueprint. When the federal government commits unwarrantable acts, the Father of the Constitution didn't say "file a lawsuit in federal court." Madison advised a refusal to cooperate with officers of the union. Don't depend on politically connected lawyers to protect your right to keep and bear arms.

  • Jimmy the Dane||

    I have a lot of friends who live in NJ. To call it a "may issue" state as the 3rd Circuit does is an absolute joke. A 2015 public records release showed there are fewer then 2000 active carry permits in the state. To get one basically you have to prove you have been beaten by a spouse/lover, running from a gang, or a state politician. The chief of police has to sign off on it and then a judge has to approve it. Also, since it doesn't cost the state any real money to do so, they usually appeal an approval again unless you are one of the above.

    NJ is essentially just like CA, a de facto no issue state.

  • ReaderY||

    Suppose I am the head of a gang, and I tell my gang members "I encourage you to kill Judge Tashima."

    Judge Tashima is shot. Have I committed a crime? Under 9th Circuit precedent, I have not. Merely encouraging or inducing a person to do an action is simple speech. And simple speech cannot be criminalized. It simply doesn't matter that the action I am encouraging or enduring is illegal. Nor does it - or should it - matter whether the law making the underlying action illegal is one the 9th Circuit likes or doesn't like.

  • Ben of Houston||

    Actually, in that case, an argument can be made for murder-for-hire. If your subordinates believe they are killing the judge on your orders, and you reasonably could have expected that result, it would be the same as killing the Judge yourself.

  • ReaderY||

    Suppose there was no payment?

    The fundamental problem is that the 9th Circuit is acting as if an entire categorical exception to the First Amendment - solicitation to commit a crime - simply didn't exist. It is applying standard over breadth doctrine to dictionary definitions of "encourage" or "induce" as if there were no intervening body of solicitation-to-commit-a-crime law making creating specialized terms of art and construing them as constitutional anti-solicitation laws.

    Contrast this case to, for example, Rice v. Paladin Enterprises, where the 4th Circuit held the book "Hit Man," a manual on how to operate a freelance contract murder business, was unprotected by the First Amendment. The opinion's whole point that the book didn't simply describe facts about contract murder, it encouraged and induced people to do it.

    The case was controversial. But if you're going to disagree with a case, you should cite it and disagree with it. You shouldn't simply pretend it doesn't exist, and act as if the language being challenged was taken from thin air with a dictionary the only way to understand what it means.

  • mse326||

    This is where encouraging vs inciting is involved. Your hypo seems pretty classic incitement to do an illegal act. Could there be some things said that would mean someone "incited" a person to come to or stay in the country illegally? Conceivably, yes. But encouragement is not enough for incitement so the law was overbroad.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online