Short Circuit: A Roundup of Recent Federal Court Decisions

Spaceman, fake subpoenas, and the right to a basic minimum education.

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

New on the Short Circuit podcast: The real RBT and the King's Bench (in Pennsylvania) approves COVID-19 restrictions. Click here for Apple Podcasts.

• For years, scientists could serve on EPA advisory committees while also receiving EPA grants. In 2017, the EPA put a stop to that. Which, says the D.C. Circuit, was an arbitrary and capricious about-face. The EPA made "a major break from the agency's prior policy" while offering no explanation ("not a peep") for its change in course.
• In 1976, a 15-year-old girl is found raped and murdered. Police interview man who lived nearby—and who is known as "Spaceman" (he claimed he was from outer space)—multiple times over five years, using multiple techniques (including hypnosis by an English teacher with no formal hypnosis training). Spaceman names two brothers as attackers, and one is charged, convicted, and sentenced to life in prison for the girl's murder. But wait! DNA testing in 2015 exonerates him. And the Third Circuit says absolute immunity does not bar all his claims against Indiana County, Penn. prosecutors for ignoring the Constitution from going forward. (More from the Innocence Project.)
• Woodbridge, N.J. high school history teacher is fired. Illegal discrimination based on his Egyptian heritage? The principal did allegedly call him "Arabia Nights" and "Big Egypt." Third Circuit: Yes, those isolated statements are offensive. But his reading assignments featuring "Jews are Like a Cancer" and "U.S. Planned, Carried Out 9/11"? Teaching that Hitler was just misunderstood? We're pretty sure we know why he was fired.
• Pennsylvania district court issues a temporary restraining order requiring the immediate release of 20 immigrant detainees because of the COVID-19 pandemic. The gov't appeals, but TROs aren't normally appealable. Does the appellate court have jurisdiction? Third Circuit: This "TRO" is really a preliminary injunction, which is appealable.
• Allegation: New Orleans prosecutors have long issued fake subpoenas ordering crime victims and witnesses to speak with prosecutors outside of court on pain of jail or fines. If that doesn't succeed, prosecutors obtain arrest warrants based on false, misleading info. The lead plaintiff, a victim of domestic violence, spent five days in jail on a $100k bond after declining to talk. Fifth Circuit: Plaintiffs' constitutional claims can proceed. Prosecutors are protected by absolute immunity when they're prosecuting but not when they are gathering evidence.
• Border Patrol agent apprehends mother, her 15-year-old daughter, and a 14-year-old friend crossing Texas border. He beats, strangles, mutilates the mother, who escapes when he turns to the daughter. The agent partially buries the daughter and leaves her for dead in the desert (she survives) and takes the friend to his apartment, where he rapes her. He kills himself as law enforcement arrive. Fifth Circuit: The mother and daughter's claims against the feds under the Federal Tort Claims Act cannot proceed because the agent was acting outside the scope of his employment. (The friend's claims are proceeding below.)
• Woman is arrested for public intoxication and taken to Young County, Tex. jail, where jailers put her in a cell to sleep it off despite ample evidence she had attempted suicide via overdose. (Police brought her bag of empty pill packs to the jail, and her husband called the jail to say she was suicidal.) She dies. Jailers swear they checked on her at regular intervals, but six hours of video are inexplicably missing and what video remains contradicts the jailers' account. Fifth Circuit (2017): No suing the jailers. Fifth Circuit (2020): But a jury might think the county's policies are to blame.
• Nearly 20 years ago, the Fifth Circuit held that a federal law prohibiting people subject to domestic violence protective orders from possessing guns or ammo was constitutional. And the caselaw has not developed in a way to change that conclusion, says the Fifth Circuit, though two-thirds of the panel separately encourage the court to take the issue en banc to consider an entirely different framework for Second Amendment challenges.
• Geriatric inmates at Grimes County, Tex. prison obtain district court order spelling out in great detail steps prison officials must take (unrestricted access to soap and water, regularly cleaned masks, disinfected common areas, among many other things) to protect inmates from COVID-19. Fifth Circuit: Not so fast. The inmates skipped the prison's internal grievance process; there's no evidence corrections officials are deliberately indifferent to the risks inmates face; and the district court's order may in fact irreparably harm correction officials' efforts to respond flexibly to the crisis (by forcing them, for instance, to get the district court's permission before implementing rapidly changing CDC guidelines).
• Plaintiffs: Detroit's five lowest-performing public schools are bad. Teachers are unqualified and mostly quit after a year or two. The facilities are decrepit and out of compliance with health and safety codes. Textbooks are out of date or nonexistent, and classrooms lack basic supplies. Sixth Circuit (over a dissent): Which, if proven, would violate the right to a basic minimum education (i.e., access to literacy), a due process right that we are now officially recognizing as fundamental for the first time.
• Michigan allows in-state alcohol retailers—which are participants in the state's three-tier system—to ship directly to consumers. But it prohibits out-of-state retailers from doing the same. A Commerce Clause violation? Or consistent with the powers granted to the states under the 21st Amendment? Sixth Circuit: This is perfectly acceptable. Concurrence: This is barely acceptable.
• Reporter for Rockford, Ill. news site that monitors police scanner activity takes photos of undercover prostitution sting. Officers recognize him, tell him to leave. He does but is arrested for, among other things, driving his motorized bike the wrong way down a one-way street and 4 mph too fast. (All charges are dismissed.) Police put the reporter's mugshot in a press release with the mugshots of the johns. An unconstitutional retaliatory arrest? The Seventh Circuit says no.
• Self-proclaimed Satanist wishes to engage in "sex magick rituals" that he believes violate Illinois laws forbidding adultery and fornication. He also wants to marry more than one person, which is illegal too. Seventh Circuit: All this sexiness demands the sexiest of doctrines—issue preclusion and Article III standing. The man's challenge to the bigamy law fails on issue preclusion grounds because he lost a virtually identical challenge in 2017. And the man lacks standing to challenge the adultery and fornication laws; since those laws are no longer enforced, he can adulter and fornicate without fear of prosecution.
• Iowa law prohibits the opening of new outpatient surgery centers without a "certificate of need" from the state, which can be obtained only via an uncertain, expensive, and time-consuming process that existing surgery centers and hospitals have effective veto power over. By sheer coincidence, existing centers and hospitals are also exempt from this requirement; they can expand their services with few limits. Eighth Circuit: The state is just trying to protect hospitals from competition; that it is also protecting existing centers from competition doesn't make it unconstitutional. (This is an IJ case.)
• What is a "reasonable" amount of time for the EPA to act on a petition under the Federal Insecticide, Fungicide, and Rodenticide Act, to cancel the registration of a pesticide alleged to cause "widespread, serious risks to the neurodevelopmental health of children"? EPA: How about more than a decade? Ninth Circuit: Mandamused!
• There's bad lawyering, and then there's lawyering so bad that the Tenth Circuit holds the plaintiffs' lawyer liable for $1 mil in attorneys' fees. But that's what you get if you ignore orders not to file "any more prolix, redundant, meandering pleadings or briefs."
• In this week's edition of COVID-related abortion-stoppage litigation, the Fifth Circuit allowed the state to halt all abortions except those where the mother would be past the legal limit for any abortion when the governor's order expires, which it did on April 21. The governor signed a new executive order into effect that more loosely limits procedures, including abortions. Meanwhile, the Eighth Circuit (over a dissent) will allow Arkansas to enforce its temporary ban on surgical abortions, while the Eleventh Circuit will not stay a preliminary injunction allowing Alabama abortions to continue for women whose pregnancies will be past the legal limit for abortion when the governor's order ends (plus other narrow circumstances).

Last year, Clarkston, Wash. resident Kathy Hay and her family put up a little free pantry in their backyard—a blue cupboard where the family and their neighbors donated fresh produce, canned goods, and other foods for the dozen or so needy neighbors and families who used the pantry each day. But in February, Asotin County officials shut the pantry down under threat of jail time and ruinous fines unless Kathy complies with dozens of requirements, like setting up a 501(c)(3). And even if she complies, she will still be banned from offering fresh foods. The red tape and the ban do not make sense, especially during the pandemic, so Kathy and her neighbors have teamed up with IJ to file a constitutional challenge in federal court. Click here to learn more.

Comments

[Dr. Ed]

"Manzanares, who was patrolling in his official government vehicle, approached MDCG and the two girls and ordered them to follow his instructions. They then surrendered to Manzanares."

So they were prisoners in his custody -- he had legally arrested them. How is this not "while acting within the scope of his office or employment"?

The court cites Texas law as saying "...when the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.”

The employer's business and object for which the employee was hired was to arrest and detain illegal aliens -- which he had done.
The employee's general authority was to arrest and detain illegal aliens, which he had done. That's how he had custody of these women.

What am I missing here?

[Toranth]

I'm pretty sure the suit isn't because the agent arrested them. I suspect it's because of he tortured and strangled one, buried another in the sand and left her to die, while taking the third to his home and raping her.

I'm not 100% familiar with CBP policies or duties, but I'm pretty sure those acts are not things agents are hired to do.

[David Nieporent]

Before January 20, 2017, I'd have agreed with you.

[Noscitur a sociis]

If you click on the underlined words "Fifth Circuit" in the summary, you will be taken to a 16 page PDF document. This is called an "opinion" and it sets out both what the court decided to do about the case and why it reached that decision. If you turn to the discussion in section III.A.2 beginning at the bottom of page 2, you will learn that

"Under Texas law, '[t]he general rule is that an employer is liable for its employee’s tort only when the tortious act falls within the scope of the employee’s general authority in furtherance of the employer’s business and for the accomplishment of the object for which the employee was hired.'"

[Dr. Ed]

You may notice that I quoted the same line.

And under the court's reasoning, ANY abuse of prisoners would now be OK because of this clause.

[Noscitur a sociis]

It's not "OK", it's just not something the US government has agreed to be sued for.

[Dr. Ed]

"The Office’s use of the fake subpoenas violated Louisiana law, which requires prosecutors to channel proposed subpoenas through a court. See LA.CODE CRIM.PROC. ANN. art. 66.1"

Why isn't this a violation of Bar Regs?

[bernard11]

Why isn't it forgery?

[TwelveInchPianist]

Who says it's not?

[James Pollock]

OK, why isn't it prosecutable as forgery?

[David Nieporent]

Because prosecutors generally don't prosecute themselves?

[James Pollock]

If only we had a system of government where every prosecutor was subject to being prosecuted by a prosecutor who works for a different boss...

[MatthewSlyfield]

Do bar regs apply to prosecutors?

[James Pollock]

If they're licensed to practice law.

[David Nieporent]

Do bar regs apply to prosecutors?

Do you mean on paper, or in the real world?

Because yes. Or no. Depending on which you meant.

[Eddy]

These Satanists are probably more boring than they want people to think they are.

[anorlunda]

Is is my imagination or is there a surge of court decisions striking down executive actions based on their failure to articulate their reasoning? Have previous administrations been treated the same way?

Can courts do likewise against the legislative and judicial branches? Could they strike down a statute if someone claims the bill was motivated by greed and the lawmakers can't explain their votes. Can they strike down a judicial ruling not accompanied with an on-the-record rationale?

[Krayt]

One can only hope. I heartily encourage fine-toothed analysis of the possible animus and sloppy reasoning behind laws and regulations and overturn them.

Somehow I doubt it will persist past Trump though.

We assume these people are being honest, and they're not.

[Sarcastr0]

Or, maybe, the Trump administration cares less about setting up a bona fide factual predicate or keeping a record of the decision making process like past administrations have.

Which is what the courts have been saying again and again, with judges of both parties.

[James Pollock]

" I heartily encourage fine-toothed analysis of the possible animus and sloppy reasoning behind laws and regulations and overturn them."

Assuming the analysis is free of animus and sloppy reasoning, of course.

[James Pollock]

"Somehow I doubt it will persist past Trump though.

We assume these people are being honest, and they’re not."

Why would anyone conclude that Mr. Trump is not honest, other than the fact that everything he says is either a lie or a misdirection.

[Max]

Not sure about your first point (maybe the reason is this administration is making more unreasoned changes), but on your second point the reason judges can (and are in fact compelled to) stop executive actions without a rationale is because there a law requiring that a rationale be given. It's part of the administrative procedures act and discussed in the opinion.

And, as an aside, from what I've seen, courts do strike down decisions without sufficient rationale from lower courts, or irrational laws written by legislatures.

[James Pollock]

For a substantial part of the population, "Because Obama" as in "we had to change this rule because that was how Obama did it" is perfectly rational and self-explanatory reason to do something. Whereas for another part of the population "Because Trump" will explain everything President Warren wants to do.

[Tempe Jeff]

President Warren? That's a damn fine joke, right there. Faux-cahantas ? Lie-a-watha? That Warren? Going for the Tribal vote eh? Novel strategy. Good luck with that.

[James Pollock]

As opposed to the Oompa-Loompa-in-Chief? Seems like anything is possible in today's post-factual America.

[David Nieporent]

Is is my imagination or is there a surge of court decisions striking down executive actions based on their failure to articulate their reasoning? Have previous administrations been treated the same way?

To answer that question, you'd first have to address the threshold question: "Have previous administrations acted the same way?"

Can courts do likewise against the legislative and judicial branches? Could they strike down a statute if someone claims the bill was motivated by greed and the lawmakers can’t explain their votes.

Occasionally, but rarely. The fact that an executive action must be justified comes from statute — the APA — and there is no similar statute applicable to the legislature. The constitution as interpreted does require that legislatures not intrude upon fundamental rights without adequate justification, however, and therefore sometimes legislation must be explained. (Most legislation, however, is governed by the rational basis test, in which the courts uphold the law if there is any conceivable explanation, even if the government never thought of it.)

Can they strike down a judicial ruling not accompanied with an on-the-record rationale?

Yes, actually. It happens all the time that an appellate court reverses a lower court's ruling not because it's necessarily wrong but because it's inadequately explained.

[Morbo]

For years, scientists could serve on EPA advisory committees while also receiving EPA grants. In 2017, the EPA put a stop to that. Which, says the D.C. Circuit, was an arbitrary and capricious about-face. The EPA made "a major break from the agency's prior policy" while offering no explanation ("not a peep") for its change in course.

I guess the fact that it's a blatant conflict of interest wasn't obvious enough for the DC Circuit.

[Sarcastr0]

There are conflict of interest laws already - you can't advise about a grant you're on.

Merely getting a grant is not a conflict of interest to keep you from talking about how to best give out grants.

[Commenter_XY]

Sarcastr0, my thought is that Secretary Pruitt's rules change was warranted and should be done, but executed poorly and wrongly. We'll see if it is appealed or not. Regardless, I do see a conflict of interest there, with a scientist receiving grant money in compliance with 'advisory opinions' issued by the Advisory Committee to which the scientist is a member. This kind of thing would not 'fly' in private business except in the most exceptional of circumstances, and it would be vetted like crazy by corporate legal.

Leaving aside the political dimension. Maybe an ethics opinion on this very question has been issued by the government (and litigated?). On the private side, I know that these kinds of arrangements are legal in that it complies with the letter of the law; I have to work with this from time to time in a business context. Those arrangements have always felt 'icky' and I have always had to stop and re-examine motives for decisions made along the way in the course of a project. Particularly when money is on the table.

Put simply, I can work with these kinds of arrangements but I don't think we want these types of arrangements to be commonly accepted governmental practice. Would you agree with this?

[Sarcastr0]

Putting people who like a policy in place to advise how to best administer the policy isn't a conflict, when written broadly. In fact, it tends to be a good idea. Skeptics don't administer well - they are better in an overseer role (see: OMB, Congressional appropriations staff).

I'd be surprised if there were an ethics opinion about something as broad as 'getting a grant' but it would be informative if there were, I agree.

Of course there are going to be problems with an old boy's club creating a cartel-like atmosphere in any kind of regular relationship that involves a selection process. Indeed, this is a well-known problem with peer review. But the consensus is to mend it, not to end it; that the benefits of expertise in that area outweigh the dangers, especially when there are ways to address that issue (oversight, outreach, diversity in the policymaking body, etc.)

[Max]

Did you read the opinion? The problem was they didn't explain why prior decisions by the executive branch regarding conflict-of-interest were incorrect.

[Rev. Arthur L. Kirkland]

Should scientists working in or for EPA-regulated industries also be ineligible consequent to conflicts of interest, Morbo?

[James Pollock]

"I guess the fact that it’s a blatant conflict of interest wasn’t obvious enough for the DC Circuit."

I guess the fact that it's not a conflict of interest isn't obvious enough for you.
If you need advice on "should we be regulating substanceX" dividing people into two categories: People whose opinion on the topic is worth considering, and People we'll pay to answer the question scientifically makes perfect sense, if what you'd like to do is only hear from people who'll back your non-scientific opinion on the subject.

[Rev. Arthur L. Kirkland]

"Border Patrol agent apprehends mother, her 15-year-old daughter, and a 14-year-old friend crossing Texas border. He beats, strangles, mutilates the mother, who escapes when he turns to the daughter. The agent partially buries the daughter and leaves her for dead in the desert (she survives) and takes the friend to his apartment, where he rapes her."

If Stephen Miller reads this blog, that border agent just got a Medal Of Freedom.

[James Pollock]

This sounds EXACTLY like what you want your border agents doing, if you think the whole "kids in cages" disincentive plan was a good idea.

[Tempe Jeff]

Obama built that!

[James Pollock]

What color is the sky on your planet?

[James Pollock]

Yeah, keep telling them they're doing it wrong. It's sure to work THIS time.

[James Pollock]

Who've never been told they were doing the whole religion thing wrong before, I'm sure.