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Short Circuit: A Roundup of Recent Federal Court Decisions

Desperate circumstances, deceptive edits, and the rule of orderliness.

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

New on the Short Circuit podcast: No Fly List games and a pair of sovereign immunity cases. Click here for iTunes.

  • The D.C. Circuit continues to rule on a bevy of motions to pause proceedings while federal agencies lack funding thanks to the government shutdown. In one, the court will indeed hear arguments next week regarding whether the USDA violated open records law when, a few weeks after the most recent presidential inauguration, it pulled from its website a trove of documents concerning its inspection and licensing of animal research facilities. And in another, the parties must still brief whether Portland, Ore.'s use of airport revenue to pay the city's sewer, stormwater, and water bill (even though some of the costs are not incurred on the airport's behalf and do not directly benefit the airport) violates federal law. (A dissent is frustrated by the circuit's failure to settle on a principled way to decide the stay motions and believes this case should indeed be stayed.)
  • Man makes false statement on mortgage application, application for hunting license. But that was in the '90s; his troubles with the law are well behind him. Now he runs a successful business, and the bank he once attempted to deceive issues him credit. Nevertheless, as a convicted felon, he is banned by federal law from owning a firearm. A Second Amendment violation? The D.C. Circuit says no.
  • Banning people from using the internet is tantamount to exiling them from society, says the Second Circuit. So if the district court is going to impose that (as well as a ban on viewing legal porn) as a condition of supervised release, the court needs to explain how such a drastic measure is necessary to meet the goals of sentencing. Which it wasn't in the case at hand, even for a sex offender.
  • In August, the Third Circuit released a 142-page opinion that partially upheld the conviction of a Philadelphia politician (a former U.S. congressman) on corruption charges. (The decision also vacated some counts while reversing acquittals on others.) This week, the court released an amended opinion that comes in at 165 pages. The Short Circuit staff regrets it has no idea what's changed. (CA3blog notes the typeface is now larger.)
  • Many local governments use the FBI's background check system to carry out certain of their obligations under state law (like processing applications for firearm licenses). Yikes! Though federal law requires it, the Department of Defense consistently fails to provide data to the system. NYC, Philadelphia, and San Francisco: DOD, you must comply. Fourth Circuit: Alas, while the cities may use the system, they may not use the courts to compel the gov't to make that system more useful.
  • Pro-life activists pose as reps from fetal tissue company, surreptitiously record videos at Planned Parenthood. Texas officials: The videos revealed "numerous violations of generally accepted standards of medical practice," so no more Medicaid funds for Planned Parenthood. District court: Can't do that. Fifth Circuit (including a picture of what seems to be fetal tissue): The district court needs to take a second look with more deference to Texas officials' findings. (Moreover, contra the district court, the videos were not deceptively edited. See footnote six.)
  • Allegation: Attorney suffered workplace harassment, retaliation, and discrimination at the hands of the Dallas, Tex. city attorney's office. Texas state courts kicked her case out for being untimely; normally this means that her federal case cannot continue, but a 38-year-old Fifth Circuit decision says that it can. What gives? Fifth Circuit: The rule of orderliness does not oblige us to esteem an old, "legally anomalous" case over decades of contrary precedent. "[D]isregarding on-point precedent in favor of an aberrational decision flouting that precedent is the antithesis of orderliness."
  • Law school grad does not take repeated bar rejections well, begins "a history of personally attacking decisionmakers whose decisions he does not like." That includes calling their employers, sending letters to their clients and friends, and picketing their offices. Sixth Circuit: And thus the Western District of Michigan didn't have to let the guy practice there. It's not what he was saying—it's how he said it.
  • Man is held for 58 days in Grant County, Ky. jail on a warrant for failure to pay child support. But call up Maury—he is not the father! So can he sue the officer who was holding him? Sixth Circuit: He cannot. The officer wasn't indifferent to the possibility of having the wrong guy.
  • Short-term rental hosts in Chicago must register with the city, acquire a business license, and comply with a host of other requirements and restrictions (including geographic eligibility; caps on the number of rentable units in a building; and health, safety, and reporting requirements). A nonprofit and individuals interested in renting (from or to others) sues, alleging the ordinance violates the First Amendment and 14th Amendment. Seventh Circuit: Dunno, but you'll have to go back to the district court to sort out whether the plaintiffs even have standing to bring this suit. We have grave doubts.
  • Allegation: Indianapolis detective arrests man for bludgeoning man's own octogenarian mother to death. But the detective's warrant application contains misstatements, omissions, and perhaps outright lies. (For instance, it states the son placed a call from his mother's house one hour before he says he found her. But he didn't; the call had been routed through a cell tower one time zone away.) Charges are dropped. The man sues the detective. Detective: Ah, but I get qualified immunity since the lies were not clearly material. Seventh Circuit: Absolutely not. To trial the case must go.
  • Wisconsin jury convicts man of threatening two state judges. Due to clerical error, man gets jurors' names and addresses. Yikes! After serving his time, man sends the jurors unsettling letters asking for their support in getting him a pardon. Double yikes. Another jury convicts him of multiple counts of stalking. And we will not disturb those convictions, says the Seventh Circuit, rejecting a battery of First, Sixth, and 14th Amendment arguments.
  • Allegation: City of Helena-West Helena, Ark. woman pays fines, but instead of documenting the payment, the Phillips County District Court clerk's office issues an arrest warrant against her for unpaid fines. She is arrested and her car towed before the mistake is discovered. She sues the city, alleging an unconstitutional policy of not documenting fine payments. District court: Aha! But the clerk is a state official, not a city official, so you shouldn't have sued the city. Eighth Circuit: Double aha! The law making Arkansas district courts part of state government wasn't fully implemented in Phillips County until 2017—after the alleged constitutional violations. So maybe the clerk was a city official after all. The case can proceed.
  • Allegation: Pretrial detainee was denied bed, slept on floor for his three-and-a-half-day stay at Los Angeles County jail facility. Can he sue the now-former sheriff? Nope, says the Ninth Circuit: exigent circumstances. Hundreds of inmates at facilities across the county were rioting at the time; jail staff had their hands full.
  • Pascua Yaqui, Ariz. cop pulls over car for speeding. Driver provides identification but front-seat passenger refuses demands for ID. And that refusal was not a constitutional basis for prolonging the traffic stop, says Ninth Circuit, so the six bullets later found in the passenger's pockets (giving rise to a felon-in-possession charge) should have been suppressed.
  • Fire breaks out at Tucson, Ariz. hotel in 1972, killing 29 people. A 16-year-old who was nearby is convicted "on the basis of little more than that proximity and trial evidence that 'black boys' like to set fires." Much later, evidence emerges suggesting that the fire was not caused by arson. (Prosecutors also allegedly withheld evidence of the same.) After 42 years of imprisonment, prosecutors offer him immediate release if he pleads guilty to the original charges. He accepts. Can he sue about the original prosecution? Ninth Circuit: No, he just pleaded guilty. Dissent: "Far from being the product of a new, constitutionally conducted second trial, [the man's] second conviction was the product of his desperate circumstances. In his 60's, he faced acceptance of the plea offer or waiting years for a habeas petition to work its way through the courts."

On Wednesday, the Supreme Court held a spirited oral argument for Tennessee Wine & Spirits Retailers Association v. Blair, a case that offers the court the rare opportunity to scrutinize the 21st Amendment. In what could set a major precedent for how states can regulate wine and liquor, many of the justices sharply critiqued state laws that do little more than protect in-state businesses from outside competitors in the alcohol industry. Click here to read more.

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  • TwelveInchPianist||

    " Ninth Circuit: No, he just pleaded guilty."

    More evidence that judges are terrible human beings.

    The very existence of the "time-served" plea.. (You can go home today, or stay in jail and assert your innocence) is proof that something is seriously wrong with our system.

  • mse326||

    I've been thinking for the past hour after reading that. I think ultimately it's the right decision from a legal perspective. I can't see a proper avenue otherwise; the dissent wasn't convincing to me.

    Clearly the dissent is right and this is a travesty, but I think it is more a travesty of the actions of the DA's office then and now for its handling of it, rather than the judges.

    This is a case begging for the judges to be a bit less "professional" and call out the people by name in the opinion. Make the right ruling but lambast them and hope it can go public and truly embarrass and maybe (hopefully) cost some people in that office their job.

  • TwelveInchPianist||

    Such pleas are coercive and not voluntary. I'm not sure how judges get there, but if they can't get there, what good are they?

    You are of course correct about the prosecutors.

  • Krayt||

    There was the other case a few weeks back where one of the judges seemed contented with the possibility of charging someone who plead guilty to a lesser charge based on a crime they didn't commit with a crime of perjury.

  • James Pollock||

    are pleas taken under oath?

  • Eddy||

    ...and if making a coerced, false plea is a crime, what about the people who did the coercing?

  • TwelveInchPianist||

    There are lots of things the prosecutors do that would be witness tampering if anybody else did it. I'm not sure why prosecutors get a pass, if there is some exception in the law or if they are just confident that they won't be prosecuted.

  • James Pollock||

    You're... surprised?... that prosecutors don't prosecute themselves?

  • TwelveInchPianist||

    When did I say I was surprised? I'm simply questioning whether they decline to prosecute themselves, or if witness tampering is legal when they do it.

  • Ben_||

    Here's what's seriously wrong: the people that make up the system, from top to bottom, mostly don't care about justice. They're working on behalf of a public who also mostly don't care about justice.

    Government is mostly a way to spend money other people earned. It's a vice that has infected the justice system -- but it mainly crowded out other vices.

  • Michael Ejercito||

    What evidence is there that the public mostly does not care about justice?

  • Harvey Mosley||

    Cases like this. If enough people cared about justice this would have never even got this far.

  • Michael Ejercito||

    So the jury failed?

  • JesseAz||

    Twitter Mobs.

  • TwelveInchPianist||

    You got 'im there.

  • awildseaking||

    Bad rules are meant to be broken.

  • bernard11||

    Agree. This is horrendous.

  • ||

    So a 30 year old non-violent conviction should prohibit one from owning guns for life, but any felon should be allowed to vote, because they should "get full participation in society after having paid their debt."

    No. Liberals support voting rights for felons because nearly all of them vote for Demoncraps. The Democrats are a party of thugs, criminals, government employees, homosexuals, welfare users, and other parasites.

  • James Pollock||

    "The Democrats are a party of thugs, criminals, government employees, homosexuals, welfare users, and other parasites."

    As are the Republicans.

  • Brett Bellmore||

    And they want to maximize the percentage of the voting population who don't care about infringements of a right they don't get to exercise anyway.

  • apedad||

    Don't worry; when you have a Republican House, and a Republican Senate, and a Republican President, then this law will be rescinded.

    Oh...wait...

  • ||

    So a 30 year old non-violent conviction should disqualify one from owning a gun for life, but they should get to vote the moment they get out because they've "paid their debts to society."

    Liberals are so full of sh*t, as are these Obongo appointed judges.

  • Rev. Arthur L. Kirkland||

    Liberals are so full of sh*t, as are these Obongo appointed judges.

    Artie Ray Lee Wayne Jim-Bob Kirkland says, "hey," Prof. Volokh. He also asked me to mention how much he enjoys your writings on censorship.

  • santamonica811||

    "Man is held for 58 days in Grant County, Ky. jail on a warrant for failure to pay child support. But call up Maury—he is not the father! "

    Can someone explain the expression: "Call up Maury." Is this a thing? I did a quick Google and got nothing. (There is a Maury show. But nothing explains why Maury was used, and not 'Call up Oprah' or "Call up Geraldo" or 'Call up Maddow' was not used. Is it a big part of the show to say, "Call up Maury!" at opportune moments?)

    Is this just a name/show preference by the writer? Some other meaning or explanation???

  • JeffR24||

    Maury Povich's show used the 'surprise guest: the real father' gimmick more frequently than contemporaries. Only Jerry Springer came close, and 'Jerry' is a more ambiguous one-word reference.

  • santamonica811||

    Ah, got it. Thanks Jeff . . . my failure to have watched more TV causes me to miss lots of these cultural references...especially ones that a Google search does not easily recognize.

  • James Pollock||

    Try Googling the catchphrases... "You ARE the father" and/or "You ARE NOT the father" and see what comes up.

  • santamonica811||

    James,
    Damn you!!! I did Google it, and the search took me to this compilation.

    https://www.youtube.com/watch?v=AAR9ikdpTb4

    I cannot un-see this. This was, literally, the worst--and dumbest--thing I have watched in at least several years, and I am officially 10 IQ points more stupid than I was 15 minutes ago, based only on that video being lodged in my brain-hole.

    Damn, damn, damn

  • James Pollock||

    In my defense, I didn't tell you to actually click on any of the links.

    Yeah, that's not sufficient. I'm so very sorry for your loss (of useful brain space).

  • Michael Ejercito||

    Man makes false statement on mortgage application, application for hunting license. But that was in the '90s; his troubles with the law are well behind him. Now he runs a successful business, and the bank he once attempted to deceive issues him credit. Nevertheless, as a convicted felon, he is banned by federal law from owning a firearm. A Second Amendment violation? The D.C. Circuit says no.


    So a person whose felony was not a violent act against a person is prohibited from owning a firearm-

    while a person convicted of multiple manslaughters arising from drunk driving is not prohibited from owning a motor vehicle.

    Makes sense.

  • MatthewSlyfield||

    What universe did you come from that you expect the law to make sense? You certainly can't be native to this one. :)

  • Deep Lurker||

    Gun laws in particular don't make sense - from the point of view of either side. They're a no-mans-land resulting from of decades of political trench warfare.

    It is interesting, however. When it comes to voting, the 14th Amendment does have an actual "except for participation in rebellion, or other crime" clause, allowing States to choose whether to let felons vote or not. But when it comes to guns, I can find no "except for..." clause anywhere, unless it's in one of the FYTW sections.

    And in an alternate universe where Justice Clarence Thomas asks questions during oral arguments he might suggest that there's something odd about how even a misdemeanor can result in a lifetime loss of a constitutional right.

  • Absaroka||

    Heck, they aren't even prohibited from buying/possessing/using alcohol. You can make a case that driving is a quasi-necessity, but not so much for booze[1].

    But they are prohibited from buying a gun, so there's that.

    [1]of course, prohibiting them from drinking wouldn't result in them actually not drinking; homebrewing, moonshine, straw purchases by associates, etc. It wouldn't work any better than gun laws keep crooks from getting guns. But at least they couldn't waltz right into the liquor store themselves.

  • James Pollock||

    "while a person convicted of multiple manslaughters arising from drunk driving is not prohibited from owning a motor vehicle."

    They may, however, not be allowed to legally operate a motor vehicle on public readways.

  • Michael Ejercito||

    True.

    But gun control laws go far beyond who may shoot them in public.

  • LiborCon||

    "...trial evidence that 'black boys' like to set fires."

    Yikes! I'm glad I don't live in 1972 anymore.

  • vaadu||

    "Many local governments use the FBI's background check system to carry out certain of their obligations under state law (like processing applications for firearm licenses). Yikes! Though federal law requires it, the Department of Defense consistently fails to provide data to the system."

    Didn't the Sutherland Springs church shooting sink in? Why are people in the DOD not getting court-martialed, fired or jailed for dereliction of duty?

  • James Pollock||

    Perhaps someone with the authority to do so told them not to do it.

  • tkamenick||

    Can't take away internet while somebody's enjoying state largesse out on parole, but can take away the explicit constitutional right to bear arms even decades after a minor and non-violent crime. Got it.

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