Short Circuit: A Roundup of Recent Federal Court Decisions

Rails-to-trails, unfair competition, and nonactionable puffery.

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

New on the Short Circuit podcast: A special live episode at University of Georgia Law featuring Prof. Michael Wells of UGA, Prof. Eric Segall of Georgia State, and Andrew Fleischman of Ross & Pines. Thanks to FedSoc and ACS for sponsoring the event!

• Washington, D.C. wine bar that hosts private events for international delegations and domestic public interest groups sues President Trump, alleging that he and the Trump International Hotel engaged in unfair competition by using the perception that, by patronizing the hotel, lobbyists and diplomats would ingratiate themselves to the president. The president removes the case to federal court, where it is dismissed for failure to state a claim: D.C. Circuit: Which was the correct result. Merely having a famous proprietor is not unfair competition. (No word on how control of the world's most powerful military should weigh into the analysis.)
• In a short opinion, the Second Circuit politely reminds district courts that they really oughtn't dismiss cases under the Rooker-Feldman doctrine anymore.
• Drug dog alerts to package arriving in the U.S. Virgin Islands. Turns out there are no drugs, but there are gun parts and ammunition. A search of another package from the same sender turns up similar contraband, leading to the sender's arrest for illegal transport of a firearm. Defendant: They're the U.S. Virgin Islands, so the border exception to the warrant requirement doesn't apply. The evidence should be thrown out. Third Circuit: There are different kinds of borders, and although the Virgin Islands are a U.S. territory, Congress has established a customs border between them and the mainland, so the evidence stays in.
• In a short opinion, the Sixth Circuit also politely reminds district courts that they really oughtn't dismiss cases under the Rooker-Feldman doctrine anymore. Judge Sutton concurs to politely remind district courts that, for the love of all that is holy, they need to knock this off already.
• Nashville, Tenn. officer, responding to an alarm at a night club, arrests man outside, declines to investigate man's story that he spent the night working in the club and his belongings are locked inside. (Criminal charges are dropped.) A Fourth Amendment violation? Although the officer was "either mentally deficient or dishonest" during deposition, the district court grants the officer qualified immunity. But the Sixth Circuit reverses, explaining that the officer's refusal to consider the circumstances was the "antithesis of probable cause." But the dissent argues that the officer should be forgiven because it was late at night and cold outside; it's the club manager who's to blame.
• Battle Creek, Mich. officer, responding to reports of an armed man at a drive-thru liquor store, finds a teenage boy armed with a black BB gun. In a two-second flurry, the boy discards the gun and the officer shoots the boy. The precise sequence of events is disputed. Sixth Circuit: Because everything happened so quickly, the officer gets qualified immunity. Dissent: "It should go without saying that reasonable police officers do not shoot disarmed young boys with upraised hands."
• After three and a half years of litigation and more than a thousand docket entries in this protracted attorneys' fees dispute, the Seventh Circuit delivers a well-deserved bench slap to the opposing counsel from hell (who still walks away from it all with $800,000 in attorney's fees).
• Eight years after the death of his wife, Illinois criminal defense lawyer is charged with her murder. After two trials, he is finally acquitted in March 2017. Shortly thereafter he sues the police, the coroner, and others, alleging they had framed him. Must the judge recuse herself because her daughter is an attorney at the Exoneration Project, a group funded by the lawyer's lawyers? Seventh Circuit: No, the daughter has been screened off from the case. Her merely being related to the judge isn't enough to merit recusal, nor is the judge's previous attendance at an Innocence Project fundraising dinner at which the plaintiff and other exonerees were honored.
• After a Dallas, Ore. school district adopts a new policy allowing a transgender male high school student to use boys' bathrooms and locker rooms, the parents of students who feel uncomfortable changing clothes in front of someone born biologically female sue, alleging a host of constitutional objections, along with a Title IX claim. Ninth Circuit: We recognize the sensitivities of all involved, but the claims fail.
• After YouTube restricts access to and demonetizes educational videos by conservative group Prager University, PragerU sues, alleging that YouTube violated the group's First Amendment rights and violated the Lanham Act by falsely advertising that it is committed to free speech. Ninth Circuit: Friendly reminder that the First Amendment restricts only government action. YouTube may be a virtual public square, but that doesn't make it a state actor. As for YouTube's "braggadocio" about its commitment to free speech, that's all nonactionable puffery.
• After pulling a woman over for a busted taillight, LAPD officers arrest her for an outstanding warrant. She informs them that, due to a shoulder injury, she cannot place her hands behind her back. They ignore this and her cries of pain, handcuff her behind her back. Excessive force? District court: Qualified immunity—no case says cops can't do that. Ninth Circuit: Uh, no. We've said for more than 20 years that cops can't handcuff a suspect in a way to cause pain if there's no immediate threat. Might've violated the Americans with Disabilities Act, too.
• Allegation: A week prior to teen's homicide trial, Hobbs, N.M. auto shop owner produces invoice showing that the car police suspected was used in drive-by shooting was in fact in the repair shop—something police could easily have verified the day after the shooting, nine months earlier. Police obtain a warrant for business records related to repair of the car and enter the owner's residence (which is on the same property as the shop) with guns drawn, seize all electronic devices. An unreasonable search and seizure? Retaliation for producing exculpatory evidence? District court: Can't sue over that. Tenth Circuit: Can't sue over that.
• Wichita, Kan. police shoot and kill an unarmed man as he walks to a parking garage after last call. Police say the man had a gun, and they saw him shoot it. Everyone else says he didn't and, therefore, couldn't. Medical experts say the police shot that man at least three times while he was lying face down on the ground. Tenth Circuit: The officers are entitled to qualified immunity for (1) shooting an unarmed man and (2) failing to warn him before they opened fired. But no qualified immunity for (3) shooting while the man posed no threat, lying on the ground. Dissent: "The Constitution clearly prohibited both officers from shooting an unarmed individual posing no threat to anyone."
• When a quinquagenarian detainee at Cobb County, Ga. jail politely asks a guard to make a phone call, the guard shoves the detainee to the concrete floor, breaking his hip. Then, as the man howls in pain, the guard tries to drag him to his feet and berates him. This being the twelfth time the guard had been investigated for violating jail policies and the sixth time he was found to have violated them, he's fired. Eleventh Circuit: The detainee can sue the (now-ex) guard. Partial dissent: He should be able to sue the supervisors, too.
• In 2016, railroad asks the feds for permission to convert a 1.2-mile stretch of track in Miami into a recreational trail. Abutting landowners: Whoa, the railroad got permission (in 1924) to conduct trains through our backyards. If they want to use the land for something else, the gov't must pay just compensation. Federal Circuit: Florida law does indeed give landowners bordering railroads an ownership interest up to the center line of the right of way. (N.B.: We have it on good authority that nearly every other state has a similar law.) The suit should not have been dismissed.

When the port district officials in Louisiana condemned Violet Dock Port's port business, the company was awarded almost $30 mil in just compensation after a trial. The port district took the property (and continues running the port business at a profit), but there's a twist! Despite the judgment, the district says it doesn't want to pay anything for the property and nobody can make it. Which, argues the Institute for Justice in this amicus brief filed with the Fifth Circuit, is only half right.

Comments

[Kazinski]

"(No word on how control of the world's most powerful military should weigh into the analysis.)"

Did Trump threaten to nuke the wine bar owner? I think a credible threat to nuke the competition should be legally actionable.

[MatthewSlyfield]

I'd say unless or until someone has evidence that the foreign officials paid the Trump hotel above market rates, it's irrelevant.

[Ben of Houston]

This is just another "emoluents" case that boils down to "business owners cannot be president". It's a nonsensical claim on its face

[MatthewSlyfield]

I think you might be able to make a valid emoluments case, if it could be shown that the president's businesses were able to get above market prices because the owner was president.

[Kazinski]

But that isn't what an emolument is, its revenue derived from holding office.

I'll also point out that there is a separate presidential emoluments clause that is much less restrictive than the foreign emoluments clause, which id argue doesn't apply to the President. Any abuses by the President which might be covered by the foreign emoluments clause would also be covered by the impeachment clause " treason, bribery, and other high crimes...".

[bernard11]

But that isn’t what an emolument is, its revenue derived from holding office.

But how are payments above market rates, because the President owns the hotel, not "revenue derived from holding office?"

[Brett Bellmore]

It still wouldn't be an "emolument", though that certainly could be a laundered bribe.

If you want a modern example of an "emolument", take a look at this. THAT is what an "emolument" looks like.

[rsteinmetz]

Don't you know the only people who can be trusted are people with long government service, including in some cases academics, becasue they understand the needs of people better.

[David H.]

I have read every single one of those posts since whenever Johj started posting these a few years ago (?) and today was the first time I realized he posts the bullet items in numerical circuit order. It was the two Rooker-Feldman blurbs not being reported consecutively that caught my eye.

[Noscitur a sociis]

You just blew my mind.

[MatthewSlyfield]

It's a mind field out there. Proceed with extreme caution.

[Squirrelloid]

Why did they need a warrant for records of the car (in the teen murder trial), when the records for the car were already turned over? And why would a warrant for said records allow the seizure of *all* electronic devices? Feels like there should definitely be a valid lawsuit here.

[Bill Poser]

Just a guess: maybe the police think, or claim to think, that the owners of the auto shop are in cahoots with the defendant and fabricated the alibi for the car? If that were so, there might be legitimate need to investigate the shop, e.g. to find records contradicting the invoice submitted as evidence.

[Kazinski]

Either that or they are upset that there neatly packaged case just blew up. Its hard to tell sometimes with cops and prosecutors whether they are being diligent or vindictive.

That said, I don't really have a problem with them going the extra mile in vetting a piece of evidence that could potentially clear an innocent man, or let a murderer off scot free.

[rsteinmetz]

The last minute presentation of the exculpatory evidence would seem to require further investigation to verify it.

[Ben of Houston]

The judge approved the warrant. This seems excessive, and I think the judge and police should both be reprimanded. However, if the warrant is legitimate, then there is no case.

[santamonica811]

I never noticed that. (And, to be honest; I never would have noticed that.) Nice catch!

[santamonica811]

I nest this comment under the comment that pointed out that these weekly tidbits were done in ascending order of Circuit Court. No idea why--now that 20-minutes has elapsed--it ended up here. Evidence # 2098 on why the Reason site sorta sucks...in oh-so-many ways.

[santamonica811]

Pro tip to all would-be criminals trying to illegally smuggle weapons:

If you're gonna do this sort of crime, do not pack the weapons in a room filled with marijuana smoke. Do not leave the weapons on piles of marijuana for a period of time so lengthy that the arms pick up the funk of pot.

There's not an sentencing enhancement for criminal stupidity. But there should be.

[Brett Bellmore]

Assuming the claim that they thought there was pot wasn't just a ruse, and it wasn't just a bit of parallel construction due to their not having a legal explanation for why they knew the guns would be there. It isn't hard to get a dog to falsely alert.

[santamonica811]

When I saw the summary, my first thought was, "Wait; if this is a drug dog, why is it signaling for weapons? That seems bogus." But when I started to read the actual opinion, it does say that the evidence was that, after the dog 'spotted' the package and it was opened (the package, not the dog), the cops were greeted by the overwhelming scent of pot. If we accept that as true; then of course it makes sense that the dog was alerted to it.

[MatthewSlyfield]

"after the dog ‘spotted’ the package and it was opened (the package, not the dog), the cops were greeted by the overwhelming scent of pot. "

Cops lie.
Never believe the cops without video.
The smell of pot won't show up on a video so this must be a lie.

[Brett Bellmore]

I wouldn't say that it "must" be a lie, but I consider it a serious possibility. Parallel construction is a real thing, and the legal system doesn't crack down on it, it enables it.

[David Nieporent]

I don't think you understand that the odor of marijuana is a magic thing that follows police around like a trained puppy, alighting wherever the cops need it to.

[neoteny]

Battle Creek, Mich. officer

Nomen est omen?

[jubulent]

Plaintiffs: Title IX prohibits sex-based discrimination in schools.

9th circuit: Well yes, but actually no.

[mse326]

Who is the school discriminating against?

[TwelveInchPianist]

As Ruth Bader Ginsburg explained,

"Separate places to disrobe, sleep, perform personal bodily functions are permitted, in some situations required, by regard for individual privacy. Individual privacy, a right of constitutional dimension, is appropriately harmonized with the equality principle."

[mse326]

1. It is generally conservatives who would say this discriminates but they also generally disavow the right to privacy as having a constitutional dimension
2. Permitted vs required is big here. Her statement doesn't say separate locker rooms are required. Only some vague assertion that there are some situations that it is required. We don't know what those situations are. And frankly I don't see that in the constitution at all. It may be good policy and be permitted, but I don't see where the constitution requires it.
3. She was speaking based on biological sex. Where trans individuals would fall under the analysis is a separate question.

For what it's worth, I don't know what the right answer is policy wise. I really think they are all shitty options. The interests on both sides are valid and at odds with each other. But I also think that whatever answer is decided on is decidedly constitutional or shall we say permitted. Use biological sex, use self indentified gender, unisex all are permitted and shouldn't be held to be illegal under the constitution or Title IX.

[RestoreWesternHegemony]

I don't support a Constitutional right to privacy at all, as it's a complete fabrication, but if women get a "right" to abortion and gay men get a "right" to sodomy from it, normal people should have a right not to have mentally ill people in their locker rooms.

[David Bremer]

On 1 - Sure, but the constitution either does or it doesn't have that right. You can't argue that the constitution has the right, but that they other side doesn't get to invoke it because they don't think it's there.

On 3 - I'd like to know how you can profession to know what she was thinking when she said that. Because it's certainly not in the text of her words. If anything, context would suggest the opposite, since she made these comments before trans issues became the latest woke battlefront.

Besides, from the point of view of the person being viewed, I don't see how the person's gender identity changes the feeling. The point is that the person you see looking back at you is of the opposite biological gender, not what is going on in the person's mind. If what was in a person's mind mattered, then you could argue that homosexuals shouldn't be permitted into locker rooms of the same sex because a person shouldn't have to expose themselves to someone who may be interested in them sexually. But that argument (rightfully and understandably) would never be accepted.

[Mike45]

I noticed the ruling refers to a biological female as "him". While I would not expect this to make the ruling legally deficient, it does suggest an ignorance of biological science in that judicial panel.

[Brett Bellmore]

No, it just was them announcing to all and sundry which side of the debate their loyalties were with.

[mse326]

Wouldn't saying "her" do the same thing?

[Brett Bellmore]

More or less, the two sides covering all the logical possibilities.

[Jerry B.]

I'm still waiting for some high school boy to claim he's actually a girl, and then parade around the girl's locker room saying, "Oh, no. I still have a penis. See. Here it is."

[anorlunda]

Any horny boy would do that if he could get away with it. Maybe some girls might try the reciprocal. To separate genuine transgenders from pretend transgenders, I propose a tattoo in the middle of each student's forehead. Your tattoo must match the symbol on the door to the locker room.

[Rev. Arthur L. Kirkland]

Judge Milton Shadur -- praised by the Seventh Circuit for handling the sketchy lawyer in the "bench slap" case -- issued the first major decision of my litigation career; I still have a sharp memento from that one on an office shelf.

Judge Shadur disliked my client -- understandably, because my client had repeatedly avoided the high road in a dispute, then knowingly and knowingly violated a court order -- but ruled for that contumacious client nonetheless because that result is where the law led.

I observed Judge Shadur to be principled, smart, and exceptionally gracious to a young lawyer in strained circumstances.

This mention of the recent Seventh Circuit case led me to learn that Judge Shadur died recently. I shall hold a kind thought for his wife of 72 years.