Short Circuit: A Roundup of Recent Federal Court Decisions

Drug traffickers' idol, a voice from the grave, and all decent people.


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

Take now, pay later. Over at, IJ's Andrew Wimer explains that courts all over the country are allowing pipeline companies to seize land without paying property owners—sometimes for years. Which violates federal law and the Constitution. Click here for our cert petition asking the U.S. Supreme Court to intervene.

  • "It stands our criminal justice system on its head to hold that even a single extra day of imprisonment can be imposed for a crime that the jury says the defendant did not commit." So says D.C. Circuit Judge Millett, objecting to the practice of increasing defendants' criminal sentences on the basis of charges that a jury acquitted on.
  • South Carolina prisoner, handcuffed and surrounded by multiple guards, refuses to let them take his picture. After seven-ish minutes, one guard has had enough, and she tases the prisoner three times. (The guards get their picture.) Cruel and unusual punishment? Fourth Circuit: No if the guard was trying to secure compliance in good faith, but yes if she was acting maliciously. And this looks malicious enough to get past summary judgment.
  • Court emails notice of final judgment to attorney. But it goes to his spam folder, and he misses the deadline to appeal. Fifth Circuit, in two-page opinion: So no appealing.
  • Marquette, Mich. railway trackman sues his employer, alleging an on-the-job injury. Employer schedules an independent medical exam to assess his injuries. Trackman refuses to fill out medical questionnaire and refuses to answer examiner's questions. Also, his lawyer tags along to the exam, which is . . . uncommon. And the lawyer secretly records the exam on his cell phone. District court: Given the "flagrant and repeated misconduct exhibited by Plaintiff and his attorney," the entire case is dismissed. Sixth Circuit: Affirmed. Although we're generally reluctant to dismiss a plaintiff's suit merely to sanction the plaintiff's lawyer, both the trackman and his lawyer behaved badly here. Judge Sutton, concurring: Also, we shouldn't be at all reluctant to hold parties accountable for their lawyers' misdeeds, even if the parties themselves are not at fault.
  • It takes an awful lot to vacate a conviction under the plain-error standard of review. So why did the Sixth Circuit give two admitted drug dealers a new trial? Let's go to the transcript: "Defendant: I'm just a Catholic believer. Prosecutor: Catholic believer? Do you understand that there is a Commandment that says thou shall not have any god before me? Def: Yes, I understand. Pros: But yet you prayed to the idol for drug traffickers [Malverde] for protection?" Later, in closing: "Pros: I wonder how many prayers he has said to Malverde before he walked into the courtroom yesterday. I wonder if what's going through his mind this morning was, I'm going to say another prayer for protection from the jurors of Central Kentucky."
  • Robber flees a Fort Wayne, Ind. store. In the split second he opens the door, he's shot by a policeman. The officer says he thought the robber was armed. The robber says he was trying to surrender (or at least needed a chance to). The officer: I should have won at summary judgment; don't make me go to trial. Seventh Circuit: The district court said the facts are disputed, so we can't hear your appeal yet.
  • Brace yourself for a habeas head-scratcher. In 2008, Kenosha County, Wisc. husband is convicted in state court of murdering his wife. But at trial, the court admitted a "voice from the grave" letter in which wife wrote that she feared her husband would kill her. Seventh Circuit (2015): Which was a very wrong application of the Sixth Amendment's Confrontation Clause. District court (2015): So within 90 days, the state must either "initiate[] proceedings to retry" the husband or set him free. State court: Proceedings initiated. But wait! Intervening Supreme Court decisions have clarified that wife's letter is admissible after all. So since there's no point in holding a new trial, conviction reinstated. Seventh Circuit (2019): Technically, the state "initiate[d] proceedings to retry" the husband, which is all the federal district court required of it. So as far as appeals go, it's back to square one for the husband.
  • Milwaukee police patrolling high-crime neighborhood espy man with suspicious bulge in his pocket. He walks briskly away from them, appears to place an object between the screen door and front door of nearby home—his home. Officers follow him up onto the porch, check between the doors, find a gun. Suppress the evidence? No need, says two-thirds of a Seventh Circuit panel.
  • Mexican citizen (with U.S. citizen wife and kids) seeks to develop San Diego waterfront, contributes to local elected officials. Which is illegal. Does it violate foreign nationals' First Amendment rights to bar them from contributing to political campaigns? Ninth Circuit: No. Nor does it violate the Second Amendment to bar them from possessing firearms. (More on that from Eugene Volokh.)
  • In 2010, Fremont, Calif. landlord conducts background check of potential tenant, which reveals several criminal charges (but only one conviction). The would-be tenant's application is rejected. He sues the company that did the background check. Did the company violate federal and state law by including a 2000 charge (that was dismissed in 2004) in its report to the landlord? The suit should not have been dismissed, says a partially divided Ninth Circuit panel.
  • And in en banc news, the Sixth Circuit will not reconsider its decision permitting a substantive due process claim to proceed against officials responsible for the Flint, Mich. municipal water crisis. Judge Sutton, concurring in denial of rehearing en banc: If officials intentionally poisoned the water this case should proceed. But if officials were merely grossly negligent, the district court should put an end to this litigation. Judge Kethledge, dissenting: All decent people are sympathetic to plaintiffs, but the law is against them. Officials weren't on notice that there is a right to bodily integrity that can be violated by supplying bad water.

This month, Florida legislators passed a criminal justice omnibus bill that will, among other things, remove unnecessary restrictions on people with criminal records getting occupational licenses. Hear, hear! "When you take away someone's ability to earn a lawful living, the risk of recidivism increases. Clearing the way for people to earn an honest living is one of the best ways to prevent recently released individuals from re-offending," says Justin Pearson, managing attorney of the IJ Florida Office, who testified during the committee process. "But strict occupational licensing requirements make it harder for ex-offenders to find work." The bill now awaits the Governor's signature. Click here for more.

NEXT: Yemen, Iran, and the War Powers Act

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  1. “Officials weren’t on notice that there is a right to bodily integrity that can be violated by supplying bad water.”

    So, officials aren’t on notice that people have a right not to be poisoned?

    I hope somebody is compiling these, for the next declaration of independence.

    1. Poor Joshua!

      1. joshua???

        1. It’s from DeShaney v. Winnebago. I only remember that line because my professor read it out loudly.

    2. The problem is the falsification. There was active falsification of tests. That changes it from gross negligence to intentional.

    3. So, officials aren’t on notice that people have a right not to be poisoned?

      You think that a town having polluted water violates the United States Constitution?

  2. “allowing pipeline companies to seize land without paying property owners—sometimes for years. Which violates federal law and the Constitution.”

    The Constitution says nothing about timing of payment.

    This quote is misleading, its not that they don’t get fair market compensation, its that the “take” can occur first, then payment is hashed out in court.

    1. Assume, for the sake of argument, that 5 years after the pipeline took possession, the court says “that pipeline easement is worth $85,000, and the temporary construction easement was worth another $50,000.” The pipeline company, having already used the temporary construction easement and having already laid the pipeline, say “Whoa, wait a second, we never intended to pay that much. We’ll move the pipe to an alternate route that won’t cost that much.” So, what will it take to make the landowners whole? Pay them for the full value of the temporary taking? Require the pipeline company to remove the pipe and restore the land? What about trees cut down that can’t be replaced? And what if the pipeline company goes bankrupt – do the landowners only get an unsecured claim for damages?

      The delay in payment while the pipeline company has full possession and control of the land, to tear it up, cut down trees, interfere with access, etc., is unacceptable. If the pipeline company really needs ready access, let it come to an agreement on price. No agreement, no access until the trial establishing value is complete.

      1. You might be correct. But maybe it’s best to assess the value of the taking after all the building is complete…at that point, you do not have to speculate about the destruction to your property that surrounds the taken land–you can see and document ingress roads, accidental poisoning of the topsoil, etc etc.. (Really, I am appalled at the idea of getting someone’s land without paying for it up front. But the delayed valuation does have a few benefits.)

        1. Wouldn’t damage to surrounding property be a separate issue?

        2. The pipeline company seeking an immediate order could be required to provide a partial payment based on a rough guess after a single, expedited hearing, before it gets possession, that covers at least an estimated cost of use of the land during the proceedings and related damage, and a bond that covers the estimated cost of the rest if the pipeline company fails to pay. The estimate and the bond especially could err somewhat on the side of the landowner, since if the pipeline company pays the bond won’t be needed.

      2. What if the Rapture occurs? What then?

        You have to deposit estimated value before you can take possession in Ohio, subject to adjustment by the court. You think this differs elsewhere?

    2. The Constitution says nothing about timing of payment.

      Yes it does. “Just compensation” must be paid promptly, else it’s not just.

      Delaying payment reduces its value as a matter of basic finance, and may impose hardships as well.

      Even if you intend to pay interest, eminent domain doesn’t give you the right to force someone to lend you money at some non-negotiated rate.

      The pipeline company either pays immediately, or negotiates payment terms satisfactory to the seller, or goes elsewhere.

      1. Your interpretation of “just” is a big stretch.

        Ohio includes interest in pre-judgment takes where the owner receives payment afterwards. I would be very surprised if this was not universal.

        Relocation costs and loss business costs may also be awarded when appropriate.

        Wipe to spittle of your face and do some research and thinking.

        1. Would you just read the damn linked article before writing your comments.

          The case it discusses is in PA, not OH, and the landowners have not received not a dime since the taking, in 2015.

          And, no, my interpretation of “just” is not a stretch at all, even though innumerate lawyers, of whom there are way too many, don’t understand the issue. If just compensation today is $50,000, that doesn’t mean that $50,000 paid five years from now is also just.

          Get a brain.

    3. “The Constitution says nothing about timing of payment.”

      Of course it does. “…nor shall private property be taken for public use without just compensation…” implies the timing of the just compensation in the same way that “don’t leave the house with pants” tells you when you when you have to wear pants. You can’t be like, “It’s cool, Ima put ’em on later.”

      1. “don’t leave the house with pants” …“It’s cool, Ima put ’em on later.”

        How are you going to put them on later when you were told to leave them at home?

  3. “So, officials aren’t on notice that people have a right not to be poisoned?

    This lacks the level of specificity that SCOUTS has explicitly required for QI analysis.

    Correction: “So, officials aren’t on notice that residents of Flint, Michigan who are wearing yellow shirts on a Tuesday have a right not to be poisoned by their municipal water supply?”

    Circuit court: No, and we aren’t going to provide said notice at this time.

    1. Astonishing, isn’t it?

  4. That’s not the first time a Kentucky prosecutor has appealed to religious prejudice. I read an appeal transcript from the case of someone who had the prosecutor close with something to the effect “Now, I’m not saying it matters that he’s not a Christian”. He’s on Death Row now. The appeals court said it was just fine.

  5. In regards to the first item, a not guilty verdict does not say the defendant didn’t do it, it merely says the government did not prove the charge beyond reasonable doubt. There is a very wide gap between the two statements.

    1. In our system, defendants are supposed to be presumed innocent. While a not guilt verdict is not proof of innocence, it should leave the presumption of innocence intact.

      1. Which it is. The prosecution still has to prove the facts that the judge relies on at sentencing.

        1. Except the double jeopardy clause ought to prohibit prosecutors from even attempting prosecutors from even attempting to prove charges on which the jury returned not guilty verdicts for purposes of sentencing.

      2. The theory for what is happening in cases like this (i.e. using other crimes to enhance the penalty on those for which the defendant was found guilty) is that (a) for sentencing, the judge can take into account a wide variety of circumstances, including other bad activities the person did and (b) to that end, all that is needed is a preponderance of the evidence, not guilt beyond a reasonable doubt.

        So that means, if Defendant is convicted of Crime A but acquitted of Crime B, then he can only be sentenced on Crime A. And, in fact, as to Crime B, the state could not prove guilt beyond a reasonable doubt. But wrt to the sentence, the judge can say, you probably also committed Crime B (preponderance) and hence I am going to use that (among other things) in setting your sentence to Crime A.

        Yes, it grates against basic fairness, double jeopardy and the requirement of proof beyond a reasonable doubt in criminal cases, but it is the law today.

    2. And the double jeopardy clause is supposed to prevent judges from revisiting allegations that jurors have already rejected, at least if we could find judges who are able to count to two.

      1. See my other post above. The jury’s rejection just means there was not proof beyond a reasonable doubt. If the jury feels the guy is probably guilty but there is still significant doubt, they are duty bound to acquit.

        But at sentencing, the judge can use “probably guilty” to enhance the sentence on the crimes he was convicted for.

        1. I understand the reasoning, but until we amend the fifth amendment to say that someone can be twice placed in jeopardy of life and limb as long as you use a lower burden of proof the second time, then all these rulings tell us is that we need smarter judges.

          1. Consider: Adam and Bob are each suspected of committing 10 bank robberies. In both cases, the evidence is strong for 5 of them but weaker for the other 5.

            Adam is tried for all 10 of them, convicted of 5, and acquitted of 5.

            Bob is tried for 5 of them and convicted of all 5.

            Is your position that the judge in Adam’s case can only consider the 5 Adam was convicted of, but Bob’s judge can also consider the 5 uncharged ones, since Bob never risked trial on them?

            I agree that having acquitted charges affect sentencing seems odd, but if Sister Agatha and Al Capone both cheat on their taxes, must they be given the same sentence? If not, then we’re letting the judge use facts (suspicions?) a jury didn’t vote for affect sentencing. Why are not-quite-beyond-reasonable-doubt suspicions off limits only if charged and tried?

            (Is it the wily Scots that have verdicts of ‘guilty’, ‘not proven’, and ‘innocent’? I’d surely agree that an ‘innocent’ verdict in that system shouldn’t be used to enhance a sentence)

            1. “Is your position that the judge in Adam’s case can only consider the 5 Adam was convicted of, but Bob’s judge can also consider the 5 uncharged ones, since Bob never risked trial on them?”

              My position is that the double jeopardy clearly and obviously prevents the judge from finding that Adam committed the robberies that the was acquitted of, because he has already been placed in jeopardy for those charges. This is clearly and obviously spelled out in the Constitution, and any judge who says otherwise is a dishonorable little shit. “I was just following precedent.” is no excuse for something like this.

              I think the case of uncharged conduct is slightly less clear. Maybe judges who sentence people for uncharged crimes are slightly less dishonorable.

              But if judges in our system believe that they have figured out a loophole where they can send people to prison for crimes that they haven’t been convicted of, and have even been acquitted of, then we need to show them that they are sorely mistaken. And to the extent that this principle conflicts with discretion in sentencing, then discretion in sentencing has to go.

  6. Judge Millett is correct. Imagine being acquitted of DUI and vehicular manslaughter but convicted of speeding, only to have the judge find that you were drunk and killed somebody, and sentencing you to 20 years in jail. IIUC this can happen if the legislature gives the judge enough discretion in sentencing.

    1. Hasn’t this come up before, though? Isn’t there precedent for the stomach-churning idea that judges can sentence people for crimes they were not convicted of? I thought I’d read about this years ago.

      1. Yes, as Judge Millett explains in her opinion. One would think that this could be solved by simply making judges demonstrate, at their confirmation hearings, that they can count to two. But apparently the mendacity and intellectual dishonesty of judges goes beyond their inability to do basic math.

    2. Right, and if the legislature removes the discretion, then the same people whine that judges’ “hands are tied.” This happens with mandatory minimums, especially in the 924(c) context.

      1. Judges hands should be tied. The problem is that they are currently tied in the wrong place.

    3. What’s the difference between acquitted conduct and non charged or otherwise bad conduct? Do you think none of it should be used to determine where in the range of sentencing the judge should go?

      1. In practice, the broader the discretion, the more arbitrary the sentencing gets.

        It should be work enough for any judge to look at the circumstances of the crime of conviction, prior crimes of which the defendant has been duly convicted, and let her sentence be guided accordingly.

        Throwing in more stuff about a person’s overall badness or unhappy childhood or whatever just makes it more likely the sentence will be the equivalent of a roll of the dice.

        1. (Of course, this pushes the discretion back onto prosecutors in plea deals, and as soon as I come up with a good solution to the plea-bargain problem, as a good citizen I’ll share my solution with everyone else)

          1. ” and as soon as I come up with a good solution to the plea-bargain problem”

            Aside from the political difficulties in enacting it, what’s wrong with just prohibiting plea-bargains?

        2. But in this case the uncharged/acquitted conduct was a key aspect of the “circumstances of the crime of conviction”.

        3. But that is more a policy argument than a constitutional one. I can fully understand the policy argument. But I have a hard time with the constitutional argument. I just don’t see how acquitted conduct can be separated from non charged conduct constitutionally speaking.

    4. That’s technically correct but highly misleading. The judge still can’t exceed the statutory maximum penalty for the crime you’re being sentenced under, and I don’t know of any state that allows a 20 year prison sentence for speeding.

    5. But that presumes that the legislature has allowed 20 years for speeding. The statutory maximum is always a limiting factor, and in your extreme scenario, I doubt you would ever get there.

      1. “But that presumes that the legislature has allowed 20 years for speeding. The statutory maximum is always a limiting factor, and in your extreme scenario, I doubt you would ever get there.”

        Why not? You could make an argument to the legislature that broad discretion in sentencing is needed because of the difference of effects of speeding. In some cases, it’s a minor occurrence with no consequences, while in others it can result in fatalities.

  7. Yay Florida!

    There is no public safety advantage to denying former tax evaders or even wife beaters the opportunity to make a living as a barber or low-voltage electrical contractor. Those are examples of occupations which some states require licenses for, licenses which they deny to people with felony records.

  8. United States v. Richmond is a terrible decision. Terry allows frisk of a person (but not a search of the person), Long allows the search of a vehicle (which has always been treated differently). This decision allows the search of a home similar to a search incident to arrest based solely on reasonable articulable suspicion.

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