Short Circuit: A Roundup of Recent Federal Court Decisions

Hair microscopy, an economist breaks bad, and the non-prosecution of Jeffrey Epstein.


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

"As people in lockdown take clippers to their own shaggy hair, they are learning that cuts from unlicensed stylists are not a health hazard—even if the results underscore the wisdom of leaving the job to a market-tested professional." So writes IJ Senior Attorney Paul Sherman in the pages of The Atlantic, making the case for permanently scrapping unnecessary red tape. Click here to read it.

New on the Short Circuit podcast: 20 years of harassment over court debt, completed misdemeanors; and jail debit cards. Click here for Apple Podcasts.

  • Man is convicted of 1970 Washington, D.C. murder on the strength of testimony from two friends who said he confessed and an FBI agent's hair microscopy analysis, the latter of which the FBI now admits is junk science. (The man escapes from prison in 1978 and isn't recaptured until 2006.) Set aside his murder conviction? Indeed, says two-thirds of a D.C. Circuit panel: As we said when we first reviewed the case in 1973, the friends were quite likely unreliable. So the hair evidence was material.
  • Military judge presiding over 9/11-related military-commission trials served as a counterterrorism lawyer for nine months in 2014 and, in 2007 and 2008, twice participated on an endurance race team with one of the prosecutors. None of which is enough to require the judge's recusal, holds the D.C. Circuit. Mandamus denied.
  • To receive SSI benefits, one must live in one of the 50 states, D.C., or the Northern Mariana Islands. Feds: So man who moved from New York to Puerto Rico and continued collecting must pay back $28k (even though, per the Jones Act of 1917, Puerto Ricans are U.S. citizens). First Circuit: There is no rational basis for denying benefits to Puerto Ricans. Indeed, Puerto Ricans pay more federal taxes than the residents of six states.
  • Woman creeps people out at Saco, Maine grocery store on multiple occasions over several years but is never violent—until she stabs an elderly shopper to death. Was the murder foreseeable such that the grocery store must pay damages? The First Circuit says no.
  • South Boston residents participating in bizarre local custom—a keg party on St. Patrick's Day—draw the ire of a neighbor, who summons police. The police suspect underage drinking and enter the apartment through an open door. (Officers say their knocks were drowned out by the loud music.) Jury: That is not unlawful entry. District court: No, it is. Three officers must pay $1 each. First Circuit: Nope. Qualified immunity.
  • Vocal 12-year-old Trump supporters sue Newsweek for defamation after the magazine runs an article titled "Trump's Mini-Mes," in which a journalism professor criticizes the use of children as political spokespeople for what he characterizes as "raw racism and sexual assault." Third Circuit: "Every contested statement in Newsweek's article is an opinion, label, or speculation based on disclosed facts and alleges no specific wrongdoing. Such statements cannot defame."
  • Pennsylvania gov't investigators use an invalid subpoena to get a Penn State employee's work emails. She sues them, alleging a violation of a 1980s anti-hacking law called the Stored Communications Act. Third Circuit: No dice! Penn State turned over the emails voluntarily; nobody broke into a computer. Dismissal affirmed.
  • In 1985, woman's body is found in the Rappahannock River tied down with a cinder block and 10 miles upstream of where defendant's boat had been seen docked four days previously. In 1986, defendant is convicted of the murder on the strength of (among other things) now-discredited hair microscopy analysis and a marine scientist's testimony that the body could have traveled the 10 miles. In 2016, a box of undisclosed evidence is discovered that contains (among other things) an FBI report estimating the body could have moved only 500 to 600 yards. Fourth Circuit: The man (who's been out on parole since 2017) can challenge his conviction. (Click here for some long longform journalism.)
  • The latest in the quickly evolving COVID-related litigation about temporarily halting abortions: After much volleying among courts, the Fifth Circuit says two kinds of abortions may now be conducted in Texas: medication abortions and surgical abortions for women whose pregnancies will be past the legal limit for abortion when the governor's order ends. Next door in Oklahoma, there's less back-and-forth: The Tenth Circuit will not review a district court's order allowing medication abortions and surgical abortions for women whose pregnancies will be past the legal limit for abortion when the governor's order ends.
  • Economist for BP breaks bad, pretends to be a hacker who has stolen sensitive data, and demands 125 bitcoins in ransom (then approximately $340k). BP contacts the FBI and, with help from BP's 44-member digital-security team, identifies the culprit, who is sentenced to 27 months in prison. Is he also liable for BP's $552k in investigatory expenses? Fifth Circuit: Maybe in tort, but not under the Mandatory Victims Restitution Act's residual clause, which deals with the sort of expenses incurred while missing work. "Think about it: The costs of a babysitter, a tank of gas, a parking meter—and a 44-person digital security team. One of these things is not like the others."
  • Fired by its personal-injury clients for missing discovery deadlines, failing to disclose an expert, and making an unauthorized settlement demand, law firm demands its fair share of the eventual settlement proceeds. Eighth Circuit: And you'll get your fair share. Don't spend the $0 all in one place.
  • In 1873, the Supreme Court all but redacted the Privileges or Immunities Clause from the Constitution—save for holding that the clause protects (among a very few other things) citizens' right to use the navigable waters of the United States. Citizen: I would like to operate a private boat service on a navigable waterway, Lake Chelan in Washington state, to bring customers 55 miles to my resort that is unreachable by road. And the state has barred me from doing that for over 20 years solely to protect a ferry service it gave an exclusive franchise to (in 1929) from competition. A violation of the Privileges or Immunities Clause? Ninth Circuit (2013): We're not sure the state is actually preventing you from operating. Go back to state court to make sure. Ninth Circuit (2020): Actually, you didn't need to go back to state court. The proposed service doesn't cross state lines, so you lose. (This is an IJ case. For a lovingly crafted longform podcast on the saga, click here.)
  • In 2007, after extensive negotiations, federal prosecutors reached a secret non-prosecution agreement with Jeffrey Epstein, who sexually abused more than 30 minor girls between 1999 and 2007. (In exchange for immunity from federal prosecution, Epstein pleaded guilty to state crimes, spent parts of 13 months in jail.) Did prosecutors' failure to apprise victims of the negotiations and the agreement—indeed, they took steps to conceal it—violate the victims' right to be treated with "fairness" and "dignity," as required by the federal Crime Victims' Rights Act of 2004? Two-thirds of an Eleventh Circuit panel says no; CVRA rights don't kick in until criminal proceedings have been initiated.
  • Arrested on suspicion of drunk driving, Florida woman blows 0.00 on two breathalyzer tests but is nevertheless detained for eight hours under Seminole County Sheriff's Department policy. A Fourth Amendment violation? Eleventh Circuit: Might could be; the claim against the sheriff should not have been dismissed.

Since Prohibition times, the Supreme Court has said (wrongly) that the Fourth Amendment does not protect "open fields," permitting law enforcement to traipse across private property without a warrant or probable cause. So does Terry Rainwaters, who lives, farms, and hunts on 136 acres along the Big Sandy River in Tennessee, have to put up with state wildlife officials trespassing on his land to put up surveillance cameras (in hopes of finding evidence of illegal hunting practices)? Not at all! This week, Terry and IJ filed suit in Tennessee state court, where the open fields doctrine has been rejected repeatedly. Click here to learn more.

NEXT: "I Suppose You Legally Have a Right Not to Give Your ID [to Police],"

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  1. Nice to see the Ninth Circuit erasing the final vestiges of the 14th amendment.

    1. My thoughts exactly — particularly since the USCG regulates just about every part of even state run ferry services. Even to the point of telling you how much you must estimate each passenger’s weight to be in determining vessel capacity — recently increased to 185 lbs.

      1. >recently increased to 185 lbs.
        I guess most Americans don’t ride on ferries

        1. Fairies, on the other hand ….

        2. Remember this includes everything you are wearing, and everything you are carrying. It is not uncommon for a physically-fit 110 lb woman to weigh 150 lbs — add 10-15 lbs of winter clothing and boots, and the rest in stuff she is carrying — 25 lbs isn’t beyond her ability to lug..

          1. I was in the CG when this new rule was made, though it was outside my area of expertise, we were told the rule was because people are fatter than a century ago when the rule was first generated.

          2. 185 pounds seems about average for an (unattractively) naked American adult, but rather light for the average American with clothing and luggage.

  2. “Every contested statement in Newsweek’s article is an opinion, label, or speculation based on disclosed facts and alleges no specific wrongdoing. Such statements cannot defame.”

    This is tough for me. It would be hard to craft any narrow rule to provide relief to the plaintiff here without imperiling free expression.

    But media outlets so often makes these characterizations based on bizarre inferences, So few people actually read or hold the journalists to account so people will automatically give stock to the article.

    Somebody who has acted entirely innocently can have his photo plastered under a headline about “racism”. No defamatory statements would be made about the pictured person, but there would be a lot of implicature. I think given the cultural divergence between the media and much of the public there should be a reconsideration of the “limited public figure” doctrine.

    1. Zimmerman certainly got screwed over by being declared a public figure and therefore not getting anything from the deceptive editing, when the only reason he ended up a public figure was said deceptive editing.

      1. Well, I think him killing an unarmed black man had *something* to do with becoming a public figure.

        1. I think getting his head slammed on the pavement had something to do with shooting him

          1. No matter how justified the killing was, it was the killing that made him a public figure, not his being attacked.

            1. Exactly. I think Emenate is somehow failing to see that (to me, obvious) point, which is troubling..

              1. No need to be troubled buddy. It is my understanding that under the “limited public figure” doctrine one must voluntarily thrust themselves into some issue of public concern.

                I am not intimately familiar with the case law but whether Zimmerman’s shooting was justifiable vel non could be relevant as to whether he falls under this category. Unless it is the case that every criminal defendant is a public figure subject to nearly insuperable defamation standards

                1. I’ll state upfront that I am not trying to be snarky. But, no; your understanding of “limited [purpose] public figure” is absolutely not correct. You are right, in the sense that ONE way you can become a LPPF, is by doing what you said. But you are incorrect in that is not the only way. “Curtis Publishing v Butts” is a good example for the Zimmerman case. (Famous football coach accused of fixing a game). Note that your last sentence is also incorrect…for a LPPF; for the statement to be non-actionable, it must relate to the LPPF’s “fame.” So, negligently accusing Zimmerman of, say, having a venereal disease would not be protected. Negligently accusing him of embezzling money from his new job would not be protected. On the other hand, just about any negligent opinion or factual assertion that relates to his past killing would be protected. Just about any assertion about how was racist re black men would be protected…those obviously were and remain directly related to the past incident in question.

            2. Technically, what made him a “public figure” was the media deciding to use Martin as a poster boy in their drive to get Stand Your Ground overturned. Without that, it would have been a perfectly unexceptional self defense case, like thousands every year, that would have gone unnoticed except by those directly involved and their families. Might have rated a few words on an inside page, and that’s all.

              There’s a reason they let him go initially, and had to go outside the usual staff to find a prosecutor who was willing to go after him: It was as open and shut self defense as it gets.

    2. The public figure aspect is irrelevant. Opinion is protected even if you are a normal no name private citizen.

  3. Under current case law are you allowed to dispose of abandoned property (cameras) left on your open field, or are you required to let the government leave it there?

    1. The government contends that tampering with their surveillance equipment constitutes theft, vandalism or whatever other charge they think will stick. In the cases I know about, they’ve mostly succeeded on those charges but I don’t know how far up the chain they were actually challenged.

      1. Can you charge them rent?

    2. The problem lies in the asking. If the cameras simply disappear, and if you get all of them, and if they are not wireless, then don’t ask, don’t tell.

      I swear, if I found game cameras on my property, they’d disappear pronto; I’d certainly check the photos, and maybe I’d give them to friends minus the memory cards. But they would come down right then and there.

      1. One problem: GPS. I wouldn’t put it past them to have a tracker installed in them.

        1. And I wouldn’t care. If I thought there was anything reporting back in real time, I’d rip it off the tree and stomp it. The possibly implausible deniability was that I thought it was hunters or pot growers trespassing, again, I was sick and tired of those damned trespassing hunters and pot growers, and it was something up with which I would not put. Let them prove otherwise. No doubt there are lots of federal laws and regulations to ensnare me, but that would be my story.

  4. a marine scientist’s testimony that the body could have traveled the 10 miles.”

    The Rappahannock River has tides in the range of 2-3 feet — how on earth is a body going to go 10 miles upstream?!? This isn’t Nova Scotia’s Bay of Fundy where they actually do have 40 foot tides and tidal bores going up the rivers. You only have to look at the boat moorings to tell how calm the water is around there — any wind strong enough to blow the body that far would have sunk most the boats.

    And the first thing I thought of with two uniform cuts on her back was a boat propeller. You’d have thought that at least one of the LEOs would have thought of that — if not having seen it in a drunken boating mishap, which sadly, are not uncommon.

    Congrads to those who saw justice done — but wow….

    1. From the linked article:

      “One day in 2013, after Schmidt left office, Engle was in town leafing through the paperwork when he made a startling find: a letter to Schmidt from the marine scientist John Boon. Boon was the tidal expert who had testified at Stevens’s first trial about how Mary’s body could float ten miles upstream, but—for reasons that were never disclosed—he hadn’t appeared at the second trial, the one in which Stevens was convicted. In that proceeding, a transcript of his prior testimony had instead been read aloud. The letter seemed to explain why Boon hadn’t shown up himself. “Was this testimony truly of use to you or the court?” Boon had written to Schmidt before the start of the second trial. “In a brief ‘interview’ before my last appearance at the Circuit Court, your associate, Lt. Riley, applied what may be the correct term to my testimony in this case. He called it ‘eyewash.’ ”

      Engle looked up the word. It meant “nonsense,” according to the dictionary. Or, as Engle puts it, “bullshit.””

      1. It’s worth noting that Scott Peterson is on death row in California on similar questionable evidence. In his case, the trial court wouldn’t let the jury hear about an experiment the defense conducted that showed that Peterson’s tiny boat would have capsized if he had thrown his wife’s pregnant, weighted down body overboard like the the prosecution said he did.

        Now, Scott Peterson MAY be guilty. (He certainly did enough questionable and shady things after his wife went missing.) But there’s absolutely nothing that proves him guilty beyond a reasonable doubt.

        The point being, I think prosecutors get frustrated in these “cement overshoes” cases and bring prosecutions and get convictions where they really don’t have sufficient proof of the defendant’s guilt.

        1. “It’s worth noting that Scott Peterson is on death row in California on similar questionable evidence.”

          That could very well be, I didn’t follow the case closely. In this case, apparently the state concealed a report from the FBI saying the body could have only moved a small amount, while reading into the record testimony from the previous trial saying the body could have moved 10 miles upstream. They did not disclose that the reason the expert was not available in the second trial because he may have repudiated his testimony.

      2. Yes I saw that. And I know that law school fries brain cells.

        But you’d still think that someone who grew up around there would say “wait a minute — 10 miles UPstream?!? How’s that possible?”

        Yes, after a few days of decomposition, she probably had enough buoyancy to float the block & chain. But that’s not going to move her upstream….

  5. > The proposed service doesn’t cross state lines

    Wait. What? The feds don’t claim jurisdiction over navigable waters within state lines? News to me!

  6. The court’s decision on the Puerto Rico case is a bit odd, and opens up the door for a lot of oddities.

    P.R. is treated differently from the rest of the US, as it’s not a state. It’s a territory. I fully support P.R.’s right to self determine its status. I’d prefer it become a state, but the people there would need to choose it. Likewise, if they want to be independent, I would support that decision if the people chose. Or if they want to maintain their current status as a commonwealth territory.

    However, within that definition of a commonwealth territory, PR has a number of benefits and drawbacks. One of the major benefits is the lack of a federal income tax for all non-government income earned in PR. That can be quite sizable. Likewise, there are no federal corporate income taxes for PR either. However, there are some drawbacks, including SSI benefits not applying (It’s funded by use federal income taxes. Note this isn’t Social Security). Instead an alternative program applies to PR.

    The courts appear to be overruling Congress’s power to discriminate benefits between U.S. State residents and those of non-U.S. state residents. Taken to the logical conclusion, it would in essence mean a territory could have all the advantages of a state, without any of the disadvantages…

    1. This decision adds on another option.

      The US Federal Income Tax is paid by all* US Citizens, as according to their income level. (*except those residing in Puerto Rico).

      Imagine a person who makes $1,000,000 a year in Puerto Rico. This person pays no US Federal Income tax on these earnings. The person then moves to Florida, where they make the exact same amount of money. They now owe the US government ~$300,000. This represents a taking. Based just on their location of residence, and no other details, their federal income tax burden has increased dramatically. This represents a taking. Under the same logic the First Circuit court used, the federal governments owes this man the $300,000 in taxes.

      1. Imagine a person who makes $1,000,000 a year in Puerto Rico. This person pays no US Federal Income tax on these earnings. The person then moves to Florida, where they make the exact same amount of money. They now owe the US government ~$300,000.

        I think it would make a difference where the person earned the money — I *think* that a PR resident earning that $1,000,000 in FL would still be liable for the $300,000 even as a PR resident.

        Your point is quite valid, though.

        The tax status of PR is why a lot of drug companies moved their production down there — and that alone would be enough to make the island prosperous if it wasn’t so damn corrupt. It’s got lovely beaches, lovely weather and (I’m told) no sharks — it’s less than a 4 hour flight from NYC and you don’t need a passport to go there — it could be a really wealthy tourist mecca, again, if it wasn’t so damn corrupt….

    2. This is nothing more than the argument that illegal aliens pay taxes writ large. That argument is that since they pay sales taxes — but not FICA, State & Federal Income taxes (and their employers don’t pay Worker’s Comp taxes) — they are paying as much in taxes as everyone else.

      Here the court found [t]hat in 2018 the IRS collected approximately $3,443,334,000 from Puerto Rico taxpayers clearly undermines the contention that Puerto Rico residents do not contribute to the federal treasury.”while ignoring that this was ONLY on income from (a) Federal jobs in PR, and (b) what PR residents earned from non-PR-source income!!!

      The fact that it is more than the total proceeds from Vermont indicates that that the gross Federal payroll in PR likely exceeds the total payroll in VT.

      1. “…they pay sales taxes — but not FICA, State & Federal Income taxes ”
        Lots of illegals pay FICA, plus Social Security and Medicare as well. Large corporate generally don’t pay their workers under the table. They just use fake and stolen SS numbers…

  7. If I were the personal injury law firm in the Eighth Circuit case, I would be too embarrassed to litigate over fees. I would have just quietly gone off into the sunset and hoped my role in that case would be forgotten.

  8. Too bad the kids in the Newsweek lawsuit didn’t sue in Washington state where the supreme court has explicitly held that merely calling someone a communist is defamation and not opinion.

  9. RE: “Man is convicted of 1970 Washington, D.C. murder on the strength of testimony from two friends who said he confessed … says two-thirds of a D.C. Circuit panel: As we said when we first reviewed the case in 1973, the friends were quite likely unreliable.”

    Obviously the friends were unreliable. If they had been reliable friends, they would not have testified. (Ba-DUMP bump)

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