Short Circuit: A Roundup of Recent Federal Court Decisions

Deadlocked juries, shooting at truckers, and the Adventure of the Seas.


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  • A 30-year-old precedent mandating prompt disclosure of jurors' identities after the end of a trial may have been handed down "well before the first tweet was tweeted," but it still binds this First Circuit panel.
  • Allegation: Though lacking reasonable suspicion, Customs and Border Protection officers barge into cabins on cruise ship, the Adventure of the Seas. The search yields no drugs but does yield naked and partially dressed vacationers. For shame! Two days earlier, the Third Circuit had ruled that CBP needed reasonable suspicion before it could search for drugs in a cabin on the Adventure of the Seas, the very same cruise ship. So the vacationers' suit can proceed? Indeed not, says the Third Circuit. Two days was not enough time for the CBP officers to digest the new opinion. Qualified immunity!
  • District court holds that, depending on the facts, defendant state-court judges may not be entitled to judicial immunity for setting up a system under which people arrested for failing to pay fines and fees were denied counsel or hearings about their ability to pay. Which, the Fourth Circuit notes, is not actually appealable until the district court has a chance to figure out what the facts are.
  • Road trip pro-tip: Don't shoot at truckers. Besides the obvious reasons, the trucker could be a gov't contractor transporting mail for the United States Postal Service. Which would make the shooting a federal crime, affirms the Sixth Circuit—while itself committing among the gravest of usage crimes: "free reign."
  • Appearing as a creditor in bankruptcy court, the National Labor Relations Board tries to save a claim against the debtor by relying on issue preclusion. But it provides only a general discussion and doesn't show how the elements are met. Strike one. Then on appeal to the district court, the NLRB tries to rely on issue preclusion, but it again provides only a general discussion and doesn't show how the elements are met. Strike two. On appeal to the Seventh Circuit, the NLRB "persists in providing only a generalized discussion of preclusion doctrine." Guess what happened.
  • Wisconsin's open enrollment system lets students transfer from their resident school district to a different district, but only if the new district has capacity. Three students with disabilities, denied transfer, sue under the Americans with Disabilities Act, alleging that the system discriminates against them because of their disabilities. Seventh Circuit: Not so. The open enrollment system merely lets schools assess whether they have the resources to comply with disabled students' individualized education programs.
  • Man spends more than two years in pretrial detention based on allegedly fabricated police reports. After the charges are dropped, he sues Chicago police. Permitting the case to go forward, the Seventh Circuit does some constitutional housekeeping and clarifies that pretrial detention based on fabricated evidence violates the Fourth Amendment but not the Fifth.
  • Quinquagenarian lawyer applies for senior in-house counsel gig, but he's rejected in favor of 29-year-old applicant. Age discrimination? Can't say, says the Seventh Circuit (sitting en banc). The relevant statute protects only current employees, not outside job applicants. Dueling dissents disagree, with one dubbing the majority's approach "deliberately naïve" and blind to "fifty years of history, context, and application."
  • Woman enters the U.S. in 2002 using a fraudulent visa. She's caught, agrees to be sent back to Cambodia. But officials there won't take her back, so she's been permitted to stay in the U.S. subject to an order that allows her to be deported at any time. In 2017 (and now married to a U.S. citizen), she files a habeas petition, arguing the REAL ID Act makes said order invalid. Tenth Circuit (over a dissent): Dunno about that, but the REAL ID Act does say we can't hear your claim.
  • An Alabama jury deadlocks, sends six notes over two days regarding their inability to reach a verdict; the judge's responses include such gems as "justice is after all, but an approximate science." Upon learning that the lone holdout juror is doing crossword puzzles, the judge orders all reading materials removed. Eighteen minutes later, the jury returns a guilty verdict (and the defendant gets life without parole for armed robbery). Habeas granted, says the Eleventh Circuit. This verdict was coerced, and the defendant received ineffective assistance of counsel. (For an added bonus, the court discusses several 17th-century English methods to ensure unanimous jury verdicts.)
  • In briefing news, seven retired federal judges including Richard Posner (7th Cir.), Shira Scheindlin (SDNY), and Nancy Gertner (D. Mass.) filed an amicus brief in the Federal Circuit. They argue that PACER—the main repository of federal-court documents—should be free. "Wealth should not control access to justice." (Fun facts: The Internet Archive, home of the Wayback Machine, has offered to host all current and future PACER content for free, forever. And the RECAP Project is creating a free copy of PACER that already has tens of millions of documents.)
  • And in en banc news, the Fifth Circuit will not (over a "respectful[] but strenuous[]" dissent) revisit its earlier decision upholding Louisiana's law requiring a doctor to have nearby hospital admitting privileges in order to perform abortions.

In Tennessee, failure to pay court fees means you can lose your driver's license. But can that rule possibly apply to poor people who just don't have the money? Taking away a driver's license makes it that much harder to get to work, which makes it that much harder to pay the fees. Indeed, says an IJ amicus brief to the Sixth Circuit, the rule is irrational, counterproductive, and unconstitutional. It harms not only drivers but also society writ large—consuming law enforcement, prosecutorial, judicial, and penal resources without improving public safety. Click here to read the brief.

NEXT: Law Swag

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  1. “Free reign” (instead of free rein) seems like a spelling crime, not a usage crime.

    1. I don’t think so.

      “Free rane” would be a spelling error.

      The writer probably really thinks “reign,” rather than “rein,” is the right word, and spelled it correctly.

      1. Possibly. I see what you’re saying. Though if I had to bet, I’d go with the author not thinking that hard, and just spelling it how how he/she thought it was spelled without thinking of the difference between reign and rein. But maybe that’s a usage error after all (not sure how to classify it). My favorite language post on this blog is when Stewart Baker insisted that cry pres was pronounced “see pray” instead of “sigh pray” because in French is “see,” and Bryan Garner was called in for a ruling and ruled that “see pray” is a repatriation, and thus “sigh pray” is the proper pronunciation in America.

        1. *cy not cry. Darn you Reason and your lack of an edit button. (I’m too lazy to preview before submitting, so I spend more time correcting after the fact.)

  2. “Quinquagenarian” — learn something every day. Here I learned that my first guess (50s) was correct, and I should not have been confused by someone so young in an age-discrimination scuffle.


    Thanks for that link. The examples of jury persuasion are hilarious.

    I should sell “Long Live Bushel” shirts outside the courthouse where the jury pool reports for voir dire. I could be rich.

    If you want to know who Bushel is, I recommend reading the linked opinion. It’s worth your time.

    1. And it’s right at the beginning, so no search required.

      1. I thought Penn and the other defendant were charged with rioting for assembling for Quaker worship in a public street (the authorities had locked their meetinghouse). The opinion says it was sedition.

        Also, I thought the problem with trying to force the jury to agree was that they found hims “guilty of preaching” which was not the proper form. Then they were locked up without food drink or smokes and finally said, “OK, Not Guilty then.” Since the court thought they should have voted Guilty, the judge fined them all and put them in prison until they paid (as was the custom at the time). Bushel(l) was one of the jurors who refused to pay the fine, which is why they were able to use habeas corpus.

        Correct me if I got any of this wrong.

  4. At the time of the Framing, what was in fact the practice if jurors couldn’t agree?

    1. look at the comment above yours

      1. look at the comment below that.

  5. Yeah. 10 years from now, courts will hold that CBP can raid cruise ship staterooms for drugs because 10 years is not a reasonable time for CBP to have read the ruling saying it was unconstitutional.

    1. Y’know, I’m not sure you’re wrong.

    2. How often do the courts use this reasoning? It seems pretty clear that the violations happened while the first case was bring litigated, so CBP should have known it was at least questionable and could have waited until the conclusion of that case.

      1. The previous case had been litigated for four years, and involved different people. It seems unreasonable for the on-the-ground staff to know what lawsuits the main office is involved in, especially when they take place a thousand miles away. Their supervisor, on the other hand, is a different matter. Their supervisor should certainly not have immunity – knowing this sort of thing, and telling the employees, is exactly what that job is for.

        Of course, since normal people don’t get any leeway in knowing the law, I don’t see why government employees (whose job it is) should, either. Law changed yesterday? Too bad for you! Maybe you should have been paying attention better – ignorance is no excuse.

        1. I agree, but why would anyone at CBP think it was OK to just search cabins like that to begin with?

          Do they really need to have a court explain to them that it’s not? Amazing.

          Apparently both ignorance of the law and lack of common sense are excuses for these guys.

          1. The justification is that the ship had left US territory (docked at a non-US port) and had now returned to US territory (St Thomas), and thus had crossed a border.

            That’s not a bad argument, in my mind. They are the Customs and Border Patrol, after all.

            1. Except for the barging in on nude people part. Border power to search without warrant shouldn’t mean they don’t have to knock.

          2. “why would anyone at CBP think it was OK to just search cabins like that to begin with?”

            Borders get different rules (as blessed by USSC).

            My guess is that the cabins belong to the shipping line, so if the shipping line says it’s OK to search, there’s no unreasonable searching.

  6. “The Internet Archive, home of the Wayback Machine, has offered to host all current and future PACER content for free, forever. ”

    Forever, as in ‘until we run out of money.’

  7. I have to say, the 7th Circuit decision on special education law was a bit weird. Two students with autism were denied transfers because the receiving districts said they did not have the resources available. Ok. Students with autism can require a huge range of additional resources. It’s possible to imagine that they represented genuine potential hardships for the schools. The third case, though:

    “S.B. applied to transfer from the Milwaukee School District to the Shorewood School District in 2014. His application was initially accepted. But when Shorewood later discovered that S.B. had an IEP, it promptly revoked his acceptance . . . and expelled him from the school.”

    It’s hard to know what to make of that, since the opinion doesn’t say how much “later” the district “discovered” the IEP, why it didn’t know about it from the transfer application, whether the student was actually attending when they were “expelled,” exactly why a student with ADHD’s IEP required more resources of them than they had, and so on. It just sounded weird to me. Oh noez an IEP expel! It doesn’t help that the opinion is refreshingly devoid of specific facts.

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