Short Circuit: A Roundup of Recent Federal Court Decisions

Flight paths, multitudinous grievances, and loitering plus.

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

New on the Short Circuit podcast: double jeopardy, the Air Force's effective ban on deploying HIV-positive airmen, and the federal gov't's prosecution of volunteers who left food and water in the desert for migrants.

• Should the House Judiciary Committee have access to grand jury material from the Mueller investigation? D.C. Circuit: Indeed they should; grand jury records are court records, not executive branch records, and the district court did not abuse its discretion in ordering their release. Dissent: Courts may have the power to authorize the release of these documents, but they can't order the executive branch to turn them over. Concurrence: Grand jury materials "do not become executive records simply because the Department of Justice stores them in file cabinets."
• Inmate in a West Virginia prison is shanked in the dining hall with a screwdriver, files a FOIA request for video of the attack. Prison: Nope, that may unnecessarily intrude on the privacy of the other inmates who appear in the video. D.C. Circuit: The 70 inmates who were required to be in the lunchroom and who can be seen . . . eating lunch? We're dubious. In any event, if today's youths can make themselves look like cats on the Snapchats, it's not clear why the Bureau of Prisons can't blur out the other prisoners' faces.
• In 2015, the Federal Aviation Administration changes various flight paths into and out of Reagan Nat'l Airport. Displeased with the resulting aircraft noise, the state of Maryland sues in 2018. FAA: Too late! The deadline for suing was 60 days after we published the new flight paths. Maryland: The FAA strung us along from 2015 to 2018, so our delay was excusable. D.C. Circuit: The FAA's behavior was "hardly a model of sound agency practice," but (to mix transportation metaphors) the train had long since left the station by the time Maryland filed suit. Case dismissed as untimely.
• Under federal sentencing guidelines, certain prior offenses cannot be counted in the calculation of an individual's criminal history score. One of these is loitering. But there are all kinds of loitering statutes. What's a court to do? Third Circuit: Depends on whether it's "loitering simpliciter" or "loitering plus," which is judge-talk for whether or not the loiterer was being sneaky about it.
• The city of Baltimore sues oil and gas producers in Maryland state court, alleging that climate change is hurting the city. Chevron: And we would like for this case to be heard in federal court. District court: Nope, remanded back to state court. Fourth Circuit: We barely have jurisdiction to review this, but we agree on the tiny part we're allowed to review.
• Defendant eligible for resentencing under the First Step Act after serving 15 years says the district court should have resentenced him to only 10 years to allow him to "bank" the extra time against future terms of incarceration. Which, the Fourth Circuit says, is absolutely not a thing the district court had to do.
• Bexar County, Tex. police respond to 911 call about domestic dispute, encounter a knife-wielding man. Man eventually raises his hands in a surrender pose, at which point the officers—30 feet away—shoot him dead. And to trial the case must go, says the Fifth Circuit. Accepting the man's estate's version of events as true, the officers do not enjoy qualified immunity.
• Creep in a University of Michigan executive MBA program falls for a classmate and, in true creep fashion, goes from buying gifts and asking to "schnuggle" to calling the former object of his affection a "psycho hobeast" and "lying slut whore" when his advances are rejected. Was the university deliberately indifferent to his increasingly threatening behavior? Sixth Circuit: Very possibly; there are disputed issues of fact, so the case goes back down. Dissent: No question this guy is a creep, but the university appropriately escalated its response at every stage.
• Friends, two years ago we relayed to you the tale of an Ashland, Ky. cardiologist who led the nation in billing Medicare for angiograms and his conviction for health care fraud. It turns out the gov't withheld exculpatory evidence (on orders from the district court) showing that 7% of the procedures he performed may have been unnecessary; the jury, on the other hand, heard testimony that that number was around 50%. Sixth Circuit: New trial.
• After becoming a real pain in the neck to the warden by filing "multitudinous lawsuits [and] grievances, and [giving] an interview . . . to a local newspaper," a successful jailhouse lawyer and all-around fussbudget is transferred from one maximum security prison to another. Naturally, he sues, arguing that his transfer was retaliation for his free speech in violation of the First Amendment. Was it? Seventh Circuit: No. It's okay for prison officials to transfer an inmate based on the substance of his complaints so long as the transfer is not motivated by the fact that the inmate complained. Plus, most prisons are unpleasant places to be, so the transfer from one unpleasant place to another doesn't cause any harm.
• ShotSpotter uses sophisticated microphones to detect the sound of gunfire, triangulate the location, and alert local police. Peoria, Ill. officer receives ShotSpotter alert while on night patrol, and dispatch informs him that vehicles are leaving the address where the gunfire took place. Upon approaching the address, the officer sees only one car leaving the area. He stops it and discovers a felon with a firearm. And the stop—holds a divided Seventh Circuit—did not violate the Fourth Amendment.
• The Stutsman County, N.D. courthouse houses both the county sheriff and the local police dep't. But the hallway separating them became a vast chasm when a city cop anonymously reported a county cop for using a county-owned jet ski with the sheriff's son for personal use. But wait! The county didn't own a jet ski. The identity of the city cop—who is also the president of the state fraternal order of police—is uncovered, and he is barred from entering county offices and fired after a sprawling investigation. Moreover, the county revokes the police union's contract to operate ATMs and vending machines in the courthouse. Eighth Circuit: It did not violate the First Amendment to fire the city cop.
• Man released from involuntary commitment in mental institution in 2000 (when he was 18) goes on to lead successful, peaceable life. But he's barred from obtaining a firearm. A violation of his Second Amendment rights? The Ninth Circuit says no. "[N]othing in the record suggests that Plaintiff's level of risk [of suicide or aggression] is nonexistent or that his level of risk matches the risk associated with a similarly situated person who lacks a history of mental illness."
• The opening notes of Led Zeppelin's "Stairway to Heaven" do not infringe on the copyright of a lesser-known band, says the Ninth Circuit, sitting en banc. So there's no need for a new trial; the district judge did not err by refusing to play "Taurus" (by the band Spirit) for the jury.
• Male student at the University of Denver challenges the fairness of the school's sexual misconduct disciplinary proceedings, alleges that they are biased against men. Tenth Circuit: No, they are biased against respondents, virtually all of whom happen to be men. The school's procedures would subject female respondents to an equal degree of "railroading."
• Florida corrections officials stop hormone therapy and deny social transitioning (here, the freedom to wear makeup, long hair, and women's garments) to transgender inmate, who makes multiple attempts at suicide and self-castration. Deliberate indifference to a serious medical need in violation of the Eighth Amendment? Eleventh Circuit: The hormone claims are moot because the prison changed policy, and the denial of social transitioning does not violate the Eighth Amendment. Dissent: I respectfully disagree with my dumb, idiot colleagues.

In 2015, an armed shoplifter fled into an innocent family's Greenwood Village, Colo. house. Only one person was home, and they were able to exit safely. But during a 19-hour siege, police intentionally destroyed the house using explosives, high-caliber ammunition, and a battering ram mounted on a tank-like vehicle. And last year, the Tenth Circuit ruled that the city did not need to compensate the homeowners, Alfonsina and John Lech. This week, IJ asked the Supreme Court to review the case. "For well over a century, the Supreme Court has enforced a simple rule: The government has to pay for private property it takes or destroys," says IJ Attorney Jeffrey Redfern. "If the government requires a piece of property to be destroyed, then the government should pay for it—that's just as true regardless of whether the people doing the destroying are the local school board or the local police."

Comments

[Jett's Pop]

"Only one person was home, and they were able to exit safely."
Was "they" the person's preferred pronoun?

[PoxOnBothYourHouses]

“Only one person was home, who was able to exit safely.”

FIFY

[MatthewSlyfield]

My preferred pronoun is 'master'.

[Squirrelloid]

You're an adolescent boy?

[Rossami]

What is wrong with the Sixth Circuit? Are they trying to compete with the Ninth for stupidest decisions?

It's an executive MBA program. That means the students are all adults with full-time jobs, generally in mid- to upper-management already and NOT living on campus. Why does anyone think the university had any obligation in this matter at all? Why didn't the classmate (also presumably an employed, experienced adult not living on campus) go to the police and get whatever restraining order was appropriate?

[Bill Poser]

If you read the first page of the decision, it reveals that the program, though off-campus, had periodic "residencies" in which the participants stayed in the same hotel and met face-to-face. The university arguably does have some responsibility for what happens during these "residencies".

[Squirrelloid]

Tenth Circuit University of Denver case: This summary leaves out the most important part - was the male student granted relief from the railroading?

[MatthewSlyfield]

No.

He also brought a due process claim, but that was rejected as well because the defendant is a private school.

The court concluded for reasons that he brought a due process claim under the 14th amendment (which applies to the states).

But rejected this because the only evidence the plaintiff produced to make the school a state actor was their involvement with the federal Department of Education.

[Armchair Lawyer]

9th circuit...anti gun decision...Clinton judge...check.

[mse326]

How does Ezra being a Reagan appointed judge fit your narrative?

[mse326]

So the gender discrimination Title IX case. Presumably if the process isn't biased because it applies equally to the small number of women who may come under it then all the schools that have a a really lax investigatory process that applies equally to suspected men and women also wouldn't discriminate and therefore not violate Title IX. I'm thinking I shouldn't hold my breath about that though.

[jph12]

To be fair, it sounds like there was some bad lawyering going on (bringing a 14th Amendment claim against a private university for complying with a federal letter, not citing its expert report in its Title IX arguments). But here is how the court, who affirmed summary judgment in favor of the school, described the "investigation".

"18 This concern is only heightened when there is not only evidence that the school exhibits an anti-respondent bias generally but also colorable evidence that the school employed that bias in the sexual-misconduct proceeding at issue. Here, for
instance, there is colorable evidence that the investigators:
• refused to follow leads that were potentially exculpatory;
• disbelieved Plaintiff from the outset due to the “innate motive” respondents have to lie about wrongdoing (Suppl. App. at 61), while failing to consider obvious motives Jane might have to lie about the extent to which she initiated or invited the sexual encounter with Plaintiff, such as her new boyfriend’s insistence that she report the incident as well as his presence at her initial
reporting and subsequent interviews;
• selectively determined which post-encounter evidence they would consider relevant (e.g., considering Jane’s allegation that Plaintiff offered her Aderall after the encounter in assessing Plaintiff’s credibility but not considering Jane’s inconsistent statements on whether the two saw each other after the encounter in assessing her credibility);
• allowed Jane’s boyfriend to act both as Jane’s support person who was present at her interviews and as a fact witness who provided information in the proceeding to corroborate Jane’s story and to impeach the testimony of witnesses who contradicted her story, in violation of DU’s policies;
• selectively viewed Jane as “heavily intoxicated,” implicitly rejecting Plaintiff’s and his roommate’s statements that Jane exhibited no indication of intoxication in order to support a finding that Plaintiff coerced Jane into sex (Suppl. App. at 58) but then accepting Plaintiff’s and his roommate’s statement in order to find that Jane’s intoxication had little effect on her ability to accurately recollect the encounter that night;
• faulted Plaintiff for making corrections to his summary tatement and used it to attack his credibility, despite expressly inviting Plaintiff to make such corrections and apparently violating DU’s informal policy allowing interviewees to correct summary statements in order to accurately reflect their testimony;
• emphasized inconsistencies in Plaintiff’s and his roommate’s story while disregarding numerous inconsistencies in the versions of the story told by Jane and her friend;
• suggested Plaintiff’s failure to recollect details was indicative of deception and guilt while suggesting Jane’s failure to recollect details was the result of intoxication;
• viewed Plaintiff’s roommate’s statements corroborating Plaintiff’s story as tainted by Plaintiff’s and his roommate’s prior conferral regarding the events of that night, while not applying this same logic to the statements of Jane’sfriend who corroborated Jane’s story, even though Jane called her friend specifically to relate to him “her portrayal of the night” and to tell him “that it
was rape” (Appellant’s App. at A229);
• attacked Plaintiff’s and his roommate’s credibility on the grounds they seemed overly eager to offer consistent denials of any on-campus alcohol use, without applying the same logic to the vague and inconsistent stories provided by Jane and her friend regarding their own on-campus alcohol use, even though DU
offers amnesty to complainants who admit to on-campus drug and alcohol use, but not to respondents.

A few procedural irregularities in this vein are not necessarily uncommon or even all that troubling. After all, sexual-misconduct investigations and proceedings will not be perfect. But an accumulation of irregularities all disfavoring the respondent becomes deeply troubling because benign, stochastic explanations for the errors become implausible. Instead, it looks more like a railroading. Patterns of procedural irregularities like this become even more troubling when, as in the case of DU’s investigative model, the investigators committing such errors are also the finders of fact on the ultimate issue of whether the alleged sexual misconduct occurred. Indeed, permitting, or even encouraging, an investigator who also acts as inquisitor, judge, and jury to harbor an anti-respondent bias is repugnant to basic
notions of due process and substantial justice."

But here's the money shot.

"However, as deeply troubling as this kind of bias may be, it is simply not proscribed by Title IX, which only prohibits discrimination “on the basis of [gender].” 20 U.S.C. § 1681(a).

[mse326]

Ok, but that doesn't counter what I said. Women accusing male students of sexual assault have sued countless times under Title IX when they don't think the University did enough. And pretty much unanimously the left has championed such suits. But it's hard to see how those can be sustained under the logic of this ruling since there is never any indication it was because of gender. At worst it has been just bad policies and investigatory practices. Usually it is that they don't suspend the accused right away or they just don't like the result. But none of that shows evidence of gender bias.

Basically they want to claim Title IX discrimination because accusers are almost always women so the "bad" practices itself violate the statute, but they want to deny the same thing to due process issues against the accused who are just as almost always men. They want it both ways, and generally the courts have acquiesced to that.

[jph12]

"Ok, but that doesn’t counter what I said."

I wasn't really trying to (other than the possibility that a better lawyer might have won). I looked at the opinion because I was curious about the same thing, but they do cite to a number of cases suggesting you have to do more than just say most x are y to make a claim. But then I got to Footnote 18 and was shocked by what passed for an investigation.

[neoteny]

the gov't withheld exculpatory evidence (on orders from the district court)

So it was executive-judicial collusion.

[mse326]

Actually the government argued to the district court that it was something that had to be turned over. There was an issue of third party privilege with the hospital, and some admissibility and discovery issues, so there was an ex parte hearing. The district judge badly screwed the whole thing (read the opinion if you want). But in that hearing it was the government arguing that the information was among other things not just discoverable but Brady material that needed to be turned over. The district court said they can't apparently agreeing with the hospital's privilege claim without ever actually ruling on it.

[nonzenze]

How did the WV prison FOIA case get to the DC Circuit? Did a DC actually buy the privacy dodge?

[tkamenick]

""[N]othing in the record suggests that Plaintiff's level of risk [of suicide or aggression] is nonexistent."
Uggggggggggggggggh. You don't get constitutional rights because you can't prove you won't misuse them?

"No, they are biased against respondents, virtually all of whom happen to be men."
So... Title IX doesn't allow disparate impact claims? I think a whole lot of case law would need to go out the window then.

[Brett Bellmore]

"the district judge did not err by refusing to play "Taurus" (by the band Spirit) for the jury."

Well, jurors ARE supposed to be mushrooms, after all. You wouldn't want to expose them to any sunlight.