Short Circuit: A Roundup of Recent Federal Court Decisions

Waterfowl production, Officer Outlaw, and all-white juries.


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

Two businessmen suspected of but not charged with illegal gambling say that Fresno, Calif. police seized $225k in cash and rare coins while executing a search warrant—and that the loot never made it to the evidence room. Does this kind of allegation give rise to a Section 1983 claim? Curiously, the Ninth Circuit recently said no. IJ and seven other nonprofits have thus signed on to an amicus brief urging the court to reconsider en banc. IJ's Nick Sibilla has more over at

  • After the NYPD arrested Luis Hernandez for public lewdness, a Department of Homeland Security officer (named, truly, "Outlaw") issued an immigration detainer against him. Whoops! Mr. Hernandez is a U.S. citizen born in Brooklyn. DHS was looking for Honduran citizen Luis Enrique Hernandez-Martinez. False imprisonment or a reasonable mistake? Second Circuit: Hernandez is the 11th most common surname in the United States. A reasonable officer would have taken a closer look at the discrepancy between the names.
  • New Jersey family court refuses to reduce Surender Malhan's child support obligations even though he now has primary custody of his children and his ex is making more money than he is. Will Surender surrender? Never! He sues in federal court. District Court: His claims are all barred by a variety of abstention doctrines. Third Circuit: What is it, the '90s? We don't do that anymore.
  • African American man is charged with felony murder. At trial, his jury venire consists of 60 people, only two of whom are black. Ultimately, he is convicted of murdering a white man by an all-white jury. Seeking habeas review, he presents statistical data suggesting that although 10.7% of the community is black, only 4.9% of the jury pool is black. A Sixth Amendment violation? Third Circuit: We don't know if these numbers are reliable, so you lose. Concurrence: Even if these numbers are reliable, you lose. Dissent: The majority and concurrence have raised the bar for reliability and disparity so high that everyone will always lose.
  • National bank sues former executive for alleged embezzlement. Executive responds with a letter-writing campaign to the bank's institutional shareholders, which he hopes will lead to a favorable settlement. The judge then orders a halt to the mailings. But wait just a minute, writes Bibas, J., for the Third Circuit: If the judge wants to get into the serious business of restricting litigants' speech, more analysis is required. Gag order vacated. [Bonus: Jump to CA3blog to learn why Judge Bibas' opinions reflect the best typography in the circuit.]
  • Lackawanna County, Pa. transit officials thrice reject atheist group's request to run bus ads displaying the word "Atheists" (along with the group's name and website). Officials: We don't allow ads that are religious or atheistic. Which, affirms two-thirds of a Third Circuit panel—in open "disagreement" with the D.C. Circuit—violates the First Amendment. (We discussed D.C. Metro's ad ban on the podcast.)
  • Jackson, Mich. police officer blunders into private apartment, promptly shoots the family dog. No qualified immunity, affirms the Sixth Circuit. Viewing the evidence in the dog owners' favor, the dog wasn't being unusually aggressive. So a reasonable officer would have known not to shoot him. (Requiescat in pace, Kane Lee Chaney.)
  • How many times can an eye surgeon accidentally operate on the wrong eye before his surgical privileges are revoked? Three is the magic number at the Murfreesboro, Tenn. Veterans Affairs hospital. Sixth Circuit: And the revocation does not violate the due process of law.
  • Allegation: Pretrial detainee is taken to Kane County, Ill. hospital after suicide attempt. He steals a gun from his guard, who hides and fails to warn anyone. The detainee takes nurses hostage. SWAT kills him three hours later. Can two patients (who were distressed but not physically harmed) sue the guard? The guard may be a "feckless coward," says Judge Easterbrook of the Seventh Circuit, but no. (The nurses' claims against a variety of defendants settle for $7.9 mil.)
  • Landowner wants to drain water from wetlands on his South Dakota property so he can farm them instead. But wouldn't you know it—those "waterfowl production areas" implicate two different government agencies, and they think different things about which areas he can drain. The U.S. Fish and Wildlife Service sends him one map, and the U.S. Natural Resources Conservation Service sends him a different one. He follows the second map and is promptly prosecuted for not following the first. Eighth Circuit (over a dissent): His conviction can't stand. The jury wasn't told the offense requires at least negligence, and, given the conflicting maps, he might not have acted negligently.
  • Allegation: While executing search of home pursuant to warrant, female IRS agent insists on accompanying woman to bathroom, views her naked body. (Her husband, the subject of the investigation and warrant, was able to use the restroom in peace.) In 2018, the Ninth Circuit held that the woman could sue the agent under Section 1983. But wait, doesn't that apply only to state officers? And wasn't the officer here federal? The Ninth Circuit in 2019: Oops, yes, but the agent can still be sued under Bivens, so it's fine.
  • Wyoming motorist driving 74 mph on unpaved road (posted speed limit: 35 mph) loses control, dies. Insurance company: He died while committing a crime, speeding. So we need not pay out his accidental death benefits. (They do pay $247k in life insurance benefits.) Tenth Circuit: Sounds right. Dissent: Speeding is a traffic violation and not a crime under either state law or the insurance plan's informal guide.
  • State game wardens cite man for fishing without a license at Adair County, Okla. pond. The wardens then learn he has an arrest warrant. The man flees. A warden tackles him into the pond and shoots him dead after a brief struggle. Tenth Circuit: Qualified immunity.
  • Allegation: Florida is unnecessarily institutionalizing medically fragile kids. Can the feds sue the state under Title II of the Americans with Disabilities Act? District Court: No. Titles I and III expressly give the feds a cause of action, but Title II says it's creating only a private cause of action. Eleventh Circuit (over a dissent): Reversed. There's enough cross-referencing going on among the various titles.
  • Habitat for Humanity declines to sell home to quadriplegic man because the $9k/year he receives in disability benefits does not meet the nonprofit's minimum income requirement of $10k/yr. Eleventh Circuit: Which might violate fair housing laws. Habitat must explain why it doesn't count money the man receives from his family in addition to his disability benefits.
  • And in en banc news, the Seventh Circuit will reconsider its decision nullifying a jury verdict that ordered Polk County, Wisc. to pay $4 mil to inmates who were sexually assaulted by a corrections officer. (IJ urged this course of action in an amicus brief.) The D.C. Circuit, however, will not reconsider its decision to revive the due process claim of a Yemeni citizen held at Gitmo for 17 years with no charges on the basis of undisclosed classified evidence. (Judges Henderson and Rao dissent.)

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  1. As sad as it is, Allegheny County, PA has a large jailed population, approximately 50% black. I’d expect the felon population to be similarly skewed. The disproportionate jury pool might just be due to chance and disproportionate felon populations, with a bit of a nudge from the fact that the black population skews younger and the white population older.

  2. Ultimately, he is convicted of murdering a white man by an all-white jury.

    I don’t see how this is relevant. If a population is 90% A and 10% B then every sample drawn from that population will not be exactly 90% A and 10% B.

    How representative does the jury have to be? How many white people are allowed on a jury that convicts a black man? Would it have been OK if he was convicted of murdering a black man by a white jury? Can a white man complain that he was convicted of murdering a white (or black) man by an all-white jury? Could he complain if his jury is not white enough, or black enough?

    Complaints about the racial makeup of the jury should be thrown out. As long as the process of selecting the jury is not racist then it shouldn’t matter if the selected sample of the population doesn’t match the exact racial makeup of the community.

    1. Going way out on a limb… you’re a white dude, aren’t you?

      1. Why do you think that? Are only white dudes capable of understanding elementary statistics?

      2. Going out on a limb, you have some racist notion that that’s relevant to the legitimacy of his point? Only people of the right skin color are allowed to make certain arguments?

        1. “Going out on a limb, you have some racist notion that that’s relevant to the legitimacy of his point?”

          Or a non-racist one.

          1. There is no non-racist basis for such a belief about somebody where all you know is their race; Racism is precisely thinking somebody’s race informs you about them, so that you don’t need to know their individual details to judge them.

            1. How do you feel about racial profiling by the police?

              1. I am completely opposed to racial profiling, including in the liberal Democrat cities that are so dangerous and oppressive to minorities.

                Freddie Gray’s death in the liberal Democrat city of Baltimore: Should it really be illegal to carry a knife in the city?

                In the end, Freddie Gray paid the ultimate price for the crime of clipping a common knife to his pocket.

                After Mr. Gray ran from police seconds after “making eye contact,” officers quickly grabbed the 20-something black Baltimore man and arrested him for carrying what they called a concealed deadly weapon banned by Maryland – what turned out to be a short-bladed folding-knife similar to ones worn everyday by millions of law-abiding Americans.

                The issue also resonates as the country debates the essential fairness of the US justice system, where critics say obscure laws like knife bans have at times been used selectively by police and prosecutors to clean up poor minority neighborhoods under zero-tolerance and “broken windows” style policing.

                1. We don’t live in municipal dictatorships. How much control over police do you think city governments have?

                    1. Not in any operational sense.

                      Blaming liberal mayors for presiding over what is the general national trend of police violence and racial issues is impressively myopic.

                    2. I’m not following you here, Sarcastro. There are exceptions, and a few constitutional limitations, but in general the mayor/city council write the laws, hire and fire the police chief (and officers), etc, etc. Specific to KevinP’s topic, unless someone succeeds with a 2nd Am. argument or state preemption or something, they can make their knife laws say whatever they want, instruct the police chief to make enforcing them a priority or not, have the police department adopt whatever internal policies they like, and so on.

                      I fear I’m missing your point – the mayor and/or council have complete operational control over local law enforcement. As Harry T’s desk plaque famously said, ‘The Buck Stops Here’. If they don’t like some national trend in policing practices, they shouldn’t follow the trend.

                    3. What happens when a mayor, of any party, tries to regulate the police? Strikes, angry police union statements, and they back down.

                      Those trying to blame Ferguson police’s continued racism on the Democratic mayor being secretly racist are not arguing in good faith.

                    4. “and they back down.”

                      So it is their fault.

                    5. Sorry that political realities are a thing that exist.

                      No one blames mayors for tilting at windmills on other issues. Heck, no one blames mayors generally for this issue either.

                      Again, blaming Ferguson’s mayor for Ferguson’s police is naive and ridiculous. And anyone who is trying to do that is just interested in scoring partisan points only they keep track of. Don’t be that kind of tool.

                    6. “What happens when a mayor, of any party, tries to regulate the police? Strikes, angry police union statements, and they back down.”

                      Goodness. In the vast majority of this country, carrying a pocketknife isn’t a crime. Heck, I have done so almost every day since 1970 or so. The police union hasn’t been making any angry statements. NYC and apparently Baltimore are quite the anomalies here.

                      There are dumb laws. Take the War on Drugs, for example. For most of the last several decades a mayor who said ‘we need to stop arresting people for having a joint’ would face opposition from the various drug warrior constituencies. I think mayors willing to fight for rolling back the War on Drugs are right and deserve praise, and ones that are outliers in supporting a strict WoD deserve condemnation for it. Pocketknife bans are no different.

                    7. None of that seems on topic, Absaroka.

                      Decriminalization of drugs is happening so slowly because of law enforcement pushback.

                      Picking your impractical idealism to own the libs makes it not actually idealism at all.

                    8. “None of that seems on topic”

                      The headline of the article KevinP posted is “Should it really be illegal to carry a knife in the city?”.

                    9. Yeah, I’m looking at ‘Freddie Gray’s death in the liberal Democrat city of Baltimore.’

                      I don’t know who the csmonitor is, but as I’ve laid out, that’s pretty dumb in a way independent of knife or firearm laws.

                    10. “I’m looking at…”

                      Ahhh, yes, the ‘in the liberal Democrat city’ is KevinP’s addition.

                      Baltimore (and Chicago) seem to have pretty dysfunctional governments, but is’s better to criticize (or defend) them based on their policies and corruption, not reflexively based on tribe.

                      There is a quote something like ‘I care not a whit about a man’s religion if it doesn’t affect how he treats his dog’. That’s worth remembering in today’s world, where the blue and red tribes have taken on the divisive role religious sects once had.

                      “I don’t know who the csmonitor is…”

                      I don’t subscribe, but I think that for many years it has been generally considered one of the better newspapers.

                    11. Ah, the Christian Science monitor. Yeah, they’re legit.

                      I would concur with you that there’s plenty to criticize about the government of Baltimore et. al. But trying to make a broad partisan point is indeed tribal and silly.

                      I think we may part this little go-round on the same page.

              2. The Volokh Conspirators and this blog’s commenters are dedicated defenders of misunderstood, disadvantaged, and persecuted heterosexual white intolerant religious American males against the predations of blacks, atheists, women, Muslims, gays, agnostics, and modernity.

                1. “…against the predations of blacks, atheists, women, Muslims, gays, agnostics, and modernity.”

                  Bullshit. There’s nothing wrong with blacks, women, Muslims, gays, or agnostics.

                  1. Rev think there’s something wrong with them. He also thinks Google isn’t a monopoly or engaged in monopolistic behavior.

                2. And RAK chimes in to once again prove that his is far and away the most bigoted commentor here.

            2. “There is no non-racist basis for such a belief about somebody where all you know is their race”

              You’re an idiot. I don’t know his race.

              “Racism is precisely thinking somebody’s race informs you about them, so that you don’t need to know their individual details to judge them.”

              Great, but not even vaguely relevant here. I’m going the other way… I’m using his individual details (his stated opinion on whether an all-white jury is relevant to the verdict) to make a guess as to his racial makeup.

              And I thought the leftists were quick to see racism in everything. You’ve got them beat.

              1. Ah, I see, you were reasoning from his opinions to his race, not from his race to the opinions he’s allowed to have. Still racist, but in a different way.

              2. I cant imagine how you thought this would work out well for you.

    2. From reading the opinion the issue appears to be less focused on “how representative must a jury be” and more focused on the process by which the prospective jury pool is attained by the district. Allegheny County’s prospective jury poor (or Master List) is created using names from Allegheny County’s list of registered voters and the PA Department of Transportation’s driving records. So, starting with the entire population of Allegheny County, the first stage of “winnowing down” involves taking from that population only those individuals who appear on those two lists.

      The second state of winnowing down involves the current statutory restrictions on jury duty, listed under 42 PA C.S.A. 4502(a). This includes: (1) those unable to read, write, speak and understand the English language; (2) those incapable, by reason of mental or physical infirmity, to render efficient jury service; or (3) those who have been convicted of a crime punishable by imprisonment for more than one year and have not been granted a pardon or amnesty therefor.

      A third stage of winnowing down would then include those who do not respond to the jury summons or who claim an exclusion by showing that jury service would require an “undue hardship or extreme inconvenience.” The fourth stage of winnowing down would then be those excluded by counsel using for-cause and peremptory challenges. The final output would be 12 jurors and 2 alternates who are empanelled.

      This is only a rough sketch of the process based on a cursory look at the opinion and the “Best Practices for Jury Selection and Service in Pennsylvania” report issued by the Pennsylvania Interbranch Commission for Gender, Racial and Ethnic Fairness in 2016. A “perfect research design” (assuming such a thing is possible) intended to identify systematic exclusion would capture the demographics at every stage of the winnowing down process to identify how different demographic groups are affected via each stage. A secondary question might then be why certain groups are more affected then others at different stages and, assuming the goal of accurate population representation at the final stage, what changes could be made to better achieve that result. The Commission’s report states that “The exclusive use of voter and vehicle registration lists for juror selection often leads to a panel of prospective jurors that is over-representative of older, middle and upper-income, well-educated, and non-minority members of the community.” It appears that PA passed a law in 2007 creating a state-wide voter list that culls names from the Departments of Public Welfare, State, Revenue, and Transportation. However, the 60 judicial districts in PA differ with regards to whether they use this list or their own lists. The report also states the the lifetime ban of those convicted of crimes punishable by imprisonment of more than one year automatically excludes about 30% of all African-American males.

      I certainly don’t know what the “perfect” process is and the exclusion of those convicted of certain offenses seems a question that involves competing values. But, based on some of the evidence, it does seem clear that the winnowing down process is the major factor that determines the level of representation on the final jury as compared to the population as a whole. If I were making an argument for the defendant in this case I would focus on this process and try to argue how different factors systematically exclude blacks (whether intentionally or not). If I were making an argument for the county it would be that the process adopted takes into account competing values and ultimately adopts rules in accord with the values of the voters and in furtherance of judicial efficiency.

      1. I was commenting on the choice of words. There is an implication that it is somehow improper if a black man is convicted of murdering a white man by an all white jury.

        This is not an uncommon sentiment.

        1. ” There is an implication that it is somehow improper if a black man is convicted of murdering a white man by an all white jury.”

          NECESSARILY Improper? No. Possibly improper? yeah. Except in the Third Circuit, of course.

          1. There are a lot of reasons that a jury verdict may be “possibly improper” without resorting to racism.

            The race of the jurors should not, by itself, be a reason to question the verdict of the jury.

    3. Even if it is racist, I don’t see an issue. Batson was a Constitutional abomination. No one has a right to have or not have jurors of any particular race. They’re only entitled to impartial.

      1. The defendant’s argument in this case wasn’t based on Batson.

        1. I know. But it’s based on the same principle.

  3. These cases would turn out better if government agents paid more attention to the Warrant:


  4. QuantumBoxCat, thanks for the interesting post.
    Eddy, Eddy, Eddy, realize you’re the resident Puck here but, please get help.
    Or at least get Led Zeppelin III.

    1. The voices assure me I’m perfectly sane.

  5. Change the channel?

  6. Second Circuit: Hernandez is the 11th most common surname in the United States. A reasonable officer would have taken a closer look at the discrepancy between the names.

    Good. There are way too many cases of lazy police officers picking up literally the wrong person or raiding the wrong address.

    If you are less competent than a pizza delivery driver at delivering pizza to the right house and person, then you should not be in law enforcement.

  7. It appears we can add Ukraine to Judge Kozinski on the list of familiar subjects the proprietor wishes to avoid during the Trump era.

    I doubt silence will rescue any reputations in this context.

    1. If there was a noteworthy court of appeals case about Ukraine that came out this week, feel free to post a link.

    2. “It appears we can add Ukraine to Judge Kozinski on the list of familiar subjects the proprietor wishes to avoid during the Trump era.”

      Well, there’s not much to talk about until Zelensky completes his investigation.

      1. Not for Trump-appeasing clingers.

      2. Withholding taxpayer-funded foreign aid unless another country smears your political rivals is a helluva thing to be blase about.

        1. Also a helluva thing to get worked up about in the comment section to a post about recent notable court decisions.

          So when someone posts about it for no apparent reason on than to throw insults at the blog authors and readers, a snarky response seems fitting.

          1. Yeah, I’ll spot you that one. If I don’t like it when the other side whattabouts, I shouldn’t jump to defend it on my side.

  8. A small quibble on the eye surgeon case. The 6th Circuit denied the discrimination claim, saying that the other doctors who got only a warning had only one botched eye surgery, and because he also got a warning on his first and was fired only after he failed his second chance, he wasn’t treated any differently. They held his due process claim was time barred and didn’t actually decide the merits.

  9. The Wisconsin case has enormous implications of, whenever it is found a violation of the traffic laws occurred, the insurance company doesn’t have to pay. If it sticks, it would basically make most auto insurance worthless.

    1. I recognize the awe is from Wyoming and limited to ERISA situations. But nonetheless it eviscerates the long-standing view of most states, including Wyoming, that a traffic offense like speeding is something less than a crime.

      1. it eviscerates the long-standing view of most states, including Wyoming, that a traffic offense like speeding is something less than a crime.

        Reader, as explained in the opinion, that view is contrary to the fact that § 31-5-1201(a) of the Wyoming Statutes does make speeding a misdemeanor, and therefore a crime.

  10. Those of you who followed the typography-related link to the CA3blog, and are convinced that one space after period is somehow always “correct”, are advised to review the following archived article entitled “Why two spaces after a period isn’t wrong (or, the lies typographers tell about history)”.

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