Short Circuit: A Roundup of Recent Federal Court Decisions

A misleading film, a misleading statistic, and misleading crackers.

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

This week, IJ filed a merits brief in the U.S. Supreme Court, which will soon consider whether a Tennessee law that requires people to live in the state for two years before they can receive a liquor license—and to live in the state for 10 years before they can renew it—unconstitutionally discriminates against new residents. Learn more here.

• Israeli-Belgian national is advised by Canadian border patrol not to board flight to U.S.; she's on a watch list. She seeks an explanation; the TSA issues order neither confirming nor denying her no-fly status. She sues. D.C. Circuit: Petition denied. She sued 62 days after the TSA issued the order, and the deadline is 60 days.
• Twelve-year-old deaf student quarrels with teacher over takeout food, hits teacher with stick, throws rocks. West Hartford, Conn. police arrive, stand behind the student and verbally instruct him to drop large rock. They rely on teacher standing in front of student to translate into sign language, then twice tase student when he fails to respond. Student: I didn't even know the cops were there! And I certainly didn't process any sign-language instructions. Second Circuit: Qualified immunity. Cop reasonably could have thought that his warnings were being conveyed to the student and that the student was deliberately ignoring them.
• Through NYPD's "no-fault" eviction program, police and prosecutors threaten to evict business owners, residents if somebody—even a total stranger—commits a crime at or near their business or residence. Hundreds of people sign settlement agreements, waiving their constitutional rights (for instance, agreeing to warrantless searches) in order to stay in their apartments and businesses. Second Circuit: A class action challenging the constitutionality of the program should not have been dismissed on Rooker-Feldman grounds. (This is an IJ case. Click here to read more.)
• Class action: "Whole Grain" Cheez-It crackers have more enriched white flour than whole grain in them. False and misleading advertising? Manufacturer: The front of the box says exactly how much whole grain is in them—5 or 8 grams. (Per 29-gram serving.) District court: Case dismissed. Second Circuit: Vacated. "Such a rule would permit Defendant to lead consumers to believe its Cheez?Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999% white flour."
• Filmmaker, a gun control proponent, asks gun rights activists how, without background checks, guns can be kept out of the hands of terrorists and criminals. The film then depicts the activists remaining silent, averting their eyes, and shifting in their seats. But wait! In real life, they actually answered the question. The filmmaker acknowledges the segment is misleading. Fourth Circuit: But it's not defamation under Virginia law.
• Man serving sentence in North Carolina for federal drug crimes is separately convicted of state crimes in Oklahoma. The Oklahoma judge orders that the state sentence run concurrently with the federal sentence, but the federal Bureau of Prisons thinks otherwise, effectively adding five years to the man's sentence. Fourth Circuit (2016): Why don't you rethink that. BOP: Okey dokey, we've thought about it and reach the same conclusion. Fourth Circuit (2018): Think harder.
• And via the rarely heard from Thirteenth Circuit, a genial admonishment to subscribe to our new podcast, Bound By Oath, which you will find congenial.
• After pat-down, Houston police believe contraband is protruding one inch from man's butt cheeks. Do a strip search? No, instead man is taken to hospital for anal cavity search, which yields no contraband. Can the man sue the officers? Maybe the magistrate who authorized the cavity search shouldn't have, says the Fifth Circuit. But the officers had a warrant, so no suing them.
• Sex offender serves his time, remains civilly committed. Sex offender: In squalid conditions and subject to daily random searches, property restrictions, staff harassment. Fifth Circuit: Civilly committed persons are entitled to more considerate treatment than criminally confined persons, but the conditions alleged are constitutional. Some of his other claims can go, though.
• Allegation: Bexar County, Tex. jail officer beat up inmate. Upon release, the now-former inmate sues. District court: Case dismissed. He didn't exhaust the administrative remedies available to him in jail. Fifth Circuit: He's not in jail anymore, so he didn't have to. His suit can proceed.
• Allegation: Prisoner makes sink overflow, so Kentucky jailor beats the hell out of him. "We're the law, dawg. We can do what we want." At jailor's trial, the gov't uses evidence that the jailor beat up another prisoner on a prior occasion. Sixth Circuit: Evidence of prior crimes normally isn't admissible at trial (lest it unfairly sway the jury). The exception the gov't relied on doesn't apply, so conviction vacated.
• Three-time deportee from Mexico enters the country a fourth time, gets caught, pleads guilty to illegal reentry, and moves for release on bail pending sentencing. Is he a flight risk? Yes, says the government, because if you let him out on bail we will deport him, and then how would he show up for his sentencing hearing? District Court: That's too clever by half. Sixth Circuit: Nope, it's just the right amount of clever; nothing in the statute prohibits ICE from deporting people pending trial or sentencing.
• In 2006, Jane Doe pleaded guilty to unlawful sexual conduct with a minor and was classified as a "sexual predator" under Ohio law. In Ohio, that classification is permanent, there is no mechanism for altering it, and it requires designees to comply with all manner of registration rules and housing restrictions. Doe sues, claiming a due process right to periodic hearings at which she can show she is unlikely to commit future sex crimes. Sixth Circuit: No. Whether or not you're currently dangerous, Ohio can regulate you as a sexual predator for life.
• Allegation: Missouri prison officials' Hepatitis C screening and treatment policies deny appropriate care and access to potentially lifesaving antiviral drugs. Eighth Circuit: This can proceed as a class action.
• In November, President Trump ordered that asylum for immigrants crossing the Mexican border would be limited to those coming through ports of entry. Ninth Circuit (in 65 pages, 10 days after the appeal was filed): Not so. Rather, the statute says what it says: Immigrants get to apply "whether or not at a designated port of arrival." So the new order stays on ice. Dissent: The statute says aliens can "apply"; it doesn't say the applications can't all be denied.
• At public meeting, hydrogeologist criticizes Albuquerque, N.M.-based water district for fortifying ditch roads with rock rubble. District employee complains to the state professional engineer board, claiming that hydrogeologist's critique amounted to the unlicensed practice of engineering. Correct, says the board. New Mexico Court of Appeals (2013): Actually, the First Amendment is pretty clear that state agencies can't punish folks for talking at public meetings without a license. Tenth Circuit (2018): Sadly, though, the hydrogeologist is now time-barred from seeking damages over this contretemps. (If all this talk of rogue engineering boards sounds familiar, it should: IJ is suing Oregon's for similar First Amendment violations. For more information on our case, check out Ludacris' Facebook page—belated thanks for the shout-out, Ludacris—or visit our website.)
• Allegation: CNN reports that mortality rate for pediatric open heart surgery at West Palm Beach, Fla. hospital is over three times the national average. But that's not so! CNN included less risky closed heart surgeries in its figure; in fact, there is no statistically significant difference between the hospital's mortality rate and the national average. Nevertheless, the hospital closes its pediatric cardiology program and forces its CEO to resign. The now-former CEO sues CNN for defamation; CNN moves to strike the complaint under Georgia's anti-SLAPP (strategic lawsuit against public participation) statute. Eleventh Circuit: Anti-SLAPP conflicts with federal rules and can't be used here.
• And in state court news, the Supreme Court of Kansas allows the warrantless entry of a home because police said they smelled marijuana—inside a Tupperware container, inside a locked safe, inside a bedroom—when they were at the front door. (Click here for local journalism.)

Pennsylvania law demands that applicants for cosmetology licenses prove they have "good moral character," a requirement that prevents our clients, two women who have criminal convictions from years ago when they were struggling with substance abuse, from moving forward with their lives as productive members of society. It's a requirement that doesn't apply to barbers; one can shave, but not tweeze, hair absent a finding of good moral character. This week, Courtney Haveman and Amanda Spillane filed suit in Pennsylvania state court. Click here for more.

Comments

[gormadoc]

About the deaf kid, everything seems reasonable except for tasing him. If he hadn't noticed the cops why couldn't they restrain him without tasing him? Even if he did, he's a twelve year-old and they're two grown cops. They should be able to deal with a kid without tasers.

[DRM]

1) He alleges in his suit that he didn't notice the cops, which is not actually the same thing as it being factually established that he didn't notice the cops. The court never gets to the question of whether it was true, because it determines that even if we accept his allegation at face value, the undisputed facts mean the cops had qualified immunity.

2) Whether they should be "able" to deal with the kid without tasers, the undisputed fact is that they were not able to get him into handcuffs until after the second use of the taser, which indicates he was effectively resisting Officer Christopher Lyth's efforts to wrestle him into restraints even after being tased once.

[Brett Bellmore]

"Even" after being tased once?

I guarantee you that if somebody tased me out of the blue, I'd be damned uncooperative at the very least until I recovered enough to figure out what was going on. AND it might take me a while to recover enough composure to make a reasoned decision to comply. My first inclination would be to cripple that SOB, and I'd be paying more attention to where I could cause the most pain, not how they were dressed.

[DRM]

If you were just tased out of the blue, do you really expect you'd be able to offer effective resistance to being handcuffed, no matter how uncooperative you wanted to be?

The whole point of a taser, after all, is to incapacitate people who don't want to cooperate (which, of course, the second jolt did). If someone is successfully resisting being restrained immediately after being shot once by a taser, it's a fairly good indication that they'd have been able to resist being restrained pretty well if not shot.

[Brett Bellmore]

"Effective"? Maybe not, I'm going to be 60 in a few weeks. But I'm pointing out that tasing somebody without warning is not a way to make them cooperative. All they know at that point is that they were attacked without warning, and your instinctive response to that is not submission!

In the kid's version of things the first time he knew anything was going on was when he was tased. He was just attacked out of the blue, he wasn't already resisting.

You have to give somebody a chance to comply, observe actual resistance, before moving to incapacitate them with a weapon capable of averse health effects. You can't say they don't want to cooperate if they never had a chance to cooperate in the first place.

[James Pollock]

" If someone is successfully resisting being restrained immediately after being shot once by a taser, it's a fairly good indication that they'd have been able to resist being restrained pretty well if not shot."

That's not a valid assumption. Tasers can be anywhere from completely effective to not at all based on a variety of factors. For example, if the probes don't penetrate the clothing, you can get a glancing shot that stings briefly but doesn't incapacitate. That's why "why'd you have you shoot him... you had a Taser!" doesn't automatically win excessive-force lawsuits.

[Milhouse]

"Out of the blue"? He wasn't minding his own business and holding a cup of tea. He had recently been engaged in a violent confrontation, and was still holding a weapon he had wielded in that confrontation; whether he knew for a fact that the cops were there or not, he disobeyed (as far as the officers knew, and as far as we know) instructions to put down his weapon, and he should have expected some sort of response.

In any event, surely the cops' first duty, before worrying about his welfare, was to disarm him so he didn't hurt anyone (including them). Would your response have been different were he holding a knife rather than a rock? A gun?

[Ben of Houston]

It's a lot harder to restrain someone if you are trying not to hurt them. One officer could definitely restrain him with ease, if they didn't mind taking him to the hospital afterwards.

[Brett Bellmore]

If you're applying 20,000 volts, you're not trying not to hurt them.

[RoyMo]

There is this amazingly widespread belief that tasers can not possibly hurt anyone. It ie this belief was different that governs all these cases.

[Milhouse]

But you are trying not to injure them.

[Brett Bellmore]

Speaking as somebody who regularly bakes, "whole grain" bread is routinely mostly white flour. Seriously, look up some recipes.

[James Pollock]

Speaking as someone who doesn't, you'd think putting the amount of "whole grain" is in your "whole grain" product would seem to guard against false advertising claims, unless the amount of "whole grain" you "whole grain" package claims is objectively incorrect.

[DRM]

Yeah, the court is full of shit when it says "Such a rule would permit Defendant to lead consumers to believe its Cheez?Its were made of whole grain so long as the crackers contained an iota of whole grain, along with 99.999% white flour." If the label said "Contains 29 milligrams of whole grain per 29 gram serving", then anyone who claims to be deceived needs to be immediately declared incompetent and placed under a guardian.

[MaverickNH]

Labeling laws require disclosure of ingredients. They don't require vendors to say "If you're buying Cheese-its versus Cheetos because you heard whole-grain is more healthy, think again."

[Krayt]

I wonder how many grams of atoms their atomic cheddar Cheez-Its contain.

[James Pollock]

"Allegation: CNN reports that mortality rate for pediatric open heart surgery at West Palm Beach, Fla. hospital is over three times the national average. But that's not so! CNN included less risky closed heart surgeries in its figure; in fact, there is no statistically significant difference between the hospital's mortality rate and the national average"

How does this work, mathematically? How does including lower-risk procedures in your calculations of higher-risk procedures give you a bad-outcomes rate that is incorrectly high?

[wnoise]

Presumably they included the lower-risk procedures in the national average, but not the hospital's rate.

[gormadoc]

Yes, as learned through the special power of reading the damn pdf, I can confirm.

[Michael Ejercito]

So tenants can be evicted for the acts of total strangers on the.property they lease...

But cops get qualified immunity because they do not know the law.

[MaverickNH]

And property can be seized by financial institutions that pay unpaid back taxes when said tax liabilities are sold by municipalities to them.

Tenenats are just a less privileged class of serfs than homeowners...

[MaverickNH]

"Filmmaker, a gun control proponent, asks gun rights activists how, without background checks, guns can be kept out of the hands of terrorists and criminals. The film then depicts the activists remaining silent, averting their eyes, and shifting in their seats. But wait! In real life, they actually answered the question. The filmmaker acknowledges the segment is misleading. Fourth Circuit: But it's not defamation under Virginia law."

"The crux of appellants' defamation claims is that the edited interview "manufacture[d] a false exchange . . . that made [appellants] look ridiculous, incompetent, and ignorant about firearm ownership and sales, including the policies surrounding background checks." Although we agree that the filmmakers' editing choices were questionable, the edited footage simply does not rise to the level of defamation under Virginia law."

The media's bias against guns it well established but the job gets even easier now. It appears that the media can manufacture misleading evidence with judicial impunity, with lies and half-truths amplified over and over in the liberal media. If and when caught, it's only FOX News that will publish the story. Google News algorithms, driven by frequency of news story coverage, perpetuate the lies in archives for journalists to reference into the future.

[Brett Bellmore]

"If and when caught, it's only FOX News that will publish the story. "

You're behind the times: Murdock's kids are taking over at FOX, and the network is currently transitioning to the dark side. So FOX News wouldn't publish the story, either.

[Krayt]

Then there's money laying on the ground for a new news organization to pick up.

[Milhouse]

True, but not the court's problem. The only question before the court was whether the producer's lies were inherently defamatory of the plaintiffs, and the answer is no. The lies were designed to mislead viewers into thinking that the question posed is unanswerable, not that there's a ready answer but the plaintiffs were too incompetent to give it.

[nonzenze]

Three-time deportee from Mexico enters the country a fourth time, gets caught, pleads guilty to illegal reentry, and moves for release on bail pending sentencing. Is he a flight risk? Yes, says the government, because if you let him out on bail we will deport him, and then how would he show up for his sentencing hearing? District Court: That's too clever by half. Sixth Circuit: Nope, it's just the right amount of clever; nothing in the statute prohibits ICE from deporting people pending trial or sentencing.

This makes sense as interpreting the statute. But what happens at sentencing when the defendant can't show up due to (let's assume) lawful actions of the government?

FRCrP 43(a)(3) requires the defendant to be present at sentencing unless waived, and a guilty plea does not waive this right except if the defendant is voluntarily absent (c)(1)(A). In the case of removal, that absence is obviously not voluntary. It's even more confusing when considering ICE removing a defendant pending trial, before the defendant pleas out.

It seems like ICE and the USA should confer and align on whether they want to try/sentence (and then possibly remove before or after serving the sentence) or just remove 'em (if removable). It makes no sense at any rate to have a trial if you don't want to see it through . . .

[ And I can see reason to convict removable alien in case they show up for a fifth time. But that implies finishing the trial, eh? ]

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