Short Circuit: A Roundup of Recent Federal Court Decisions

Common sense, various poems, and rogue, mooning journalists.


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

Ever wondered what it's like to argue before the Supreme Court? Four IJers who have been in the hot seat talk shop on the latest episode of the Short Circuit podcast. And over at NPR, IJ Senior Attorney Robert McNamara (who we really, really hope will be on the hot seat next term) tells it like it is on qualified immunity. Click here to listen. 

  • After White House correspondent for Playboy gets into a shouting match with a former aide to President Trump at a press event, the correspondent's hard-pass credentials (which allow ondemand access to the White House) are suspended for 30 days—the first time in over 50 years of issuing such credentials that anyone's have ever been suspended or terminated. D.C. Circuit: The White House can certainly punish "rogue, mooning journalists," but first it must give them some notion of the rules they must abide by, which it hasn't. So the correspondent's suspension likely violated due process.
  • Sexagenarian accidentally activates his medical-alert system early one morning, and White Plains, N.Y. police are dispatched. Upon arrival, police demand to be let in, but the man repeatedly and emphatically says he's not in need of assistance. Instead of leaving, they call in a dozen "tactical reinforcements," triggering the man to (allegedly) have hallucinations and flashbacks to his military service. An hour-long standoff ensues, at the end of which police shoot, kill him. Second Circuit: Sure sounds like unlawful entry—that claim should not have been dismissed. (Police did not face criminal charges.)
  • To guard against corruption or the appearance of it, Pennsylvania bans casino and racetrack owners from making contributions to political candidates. A First Amendment violation? State officials: We don't want well-documented corruption in those industries taking root here. The ban is just common sense. Third Circuit: That won't do. Nineteen other states that allow commercial, nontribal gambling do not impose such a ban. You needed to actually present some evidence from those states.
  • "Quoting the Declaration of Independence, the Gettysburg Address, the Bible, and various poems," last month a district court ordered that any Texas voter wishing to vote by mail to avoid COVID-19 may do so. Fifth Circuit: "The Virus's emergence has not suddenly obligated Texas to do what the Constitution has never been interpreted to command, which is to give everyone the right to vote by mail." Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis. The district court's order is stayed.
  • In which Judge Jones of the Fifth Circuit, in a decision reviving a takings claim about groundwater, issues a rarely seen partial dissent from her own majority opinion.
  • Special deputy sheriff for Henry County, Ohio participates in a shooting class at a public range, accidentally fires his handgun and grievously injures another participant. And while that incident may well give rise to a state-law tort claim, holds the Sixth Circuit, federal constitutional claims are off the table. Nothing about the accident turned on the shooter's status as a gov't official.
  • Confronting a tangle of discovery disputes arising out of the Flint Water Crisis, the Sixth Circuit concludes that the district court did everything right. Former Michigan Gov. Rick Snyder (and former State Treasurer Andy Dillon) are off the hook for discovery as parties while their qualified immunity defenses wind through the courts. But the rest of the litigation is still moving forward. And as to that other litigation, Snyder and Dillon can be treated as non-party witnesses and made to sit for depositions.
  • Kentucky outlaws "bodily dismemberment, crushing, or human vivisection of the unborn child" unless the mother first undergoes a procedure to induce fetal demise. Sixth Circuit: The latter procedures are not feasible options, ​which means the law effectively bans second-trimester abortions​. And that is unconstitutional. Dissent: We should hold this case until the Supreme Court decides whether abortion providers have standing to invoke the constitutional rights of their patients, given that the only plaintiffs here are abortion providers.
  • Indiana man believes that his father was a victim of murder and that local law enforcement destroyed the evidence that would have proved it, depriving him of access to the courts. Seventh Circuit: It was error to say he lacked standing to bring this extremely legally bogus claim.
  • St. Louis woman is robbed at gunpoint of phone, cash. One week later, another woman is killed in an armed robbery three blocks away. Police discover a man matching the first woman's description of her robber, and he's convicted. But wait! Detectives also interviewed a third woman who said her boyfriend stole the ​first woman's phone, a charge he denied while admitting to the murder ​of the second woman—information the jury should've heard, so conviction reversed. Prosecutors decline to pursue a second trial and dismiss charges. The man sues police for suppressing, destroying, and fabricating evidence and otherwise violating his rights. Eighth Circuit: Nope.
  • Georgia's ballot-access rules for third-party candidates are much more onerous for non-statewide candidates than for statewide candidates. Simplifying, a third-party candidate for governor can get on the ballot upon collecting signatures from 1% of registered voters; a third-party candidate for the U.S. House of Representatives needs 5%. Eleventh Circuit: The district court incorrectly short-circuited the Libertarian Party's First Amendment challenge by declining to apply the Anderson v. Celebreeze test. (No comment from the ghost of Anthony J. Celebrezze Jr., whose surname had noticeably more zs and fewer es than the Eleventh Circuit gave him credit for. UPDATE: They done fixed it.)

Joshua and Emily Killeen will soon operate a desert retreat and wedding event space on their 10-acre property in rural Yavapai County, Arizona. They initially opened the business without going through the county's extensive permitting process and have now shut down until their paperwork is in order. But in the meantime, county officials are punishing the couple by banning them from advertising online that their business is "coming soon" and forcing them to cease hosting free weekly events where friends and neighbors were invited to attend free yoga and vegetarian dinners. Which is unconstitutional, and last month the Killeens joined with IJ to file a lawsuit in federal court. Click here to learn more. 

NEXT: Why Trump Might Still Get Re-elected

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  1. “The White House can certainly punish “rogue, mooning journalists,” but first it must give them some notion of the rules they must abide by, which it hasn’t.”

    It’s logically impossible to issue a complete set of rules, but I should think it isn’t actually required to enumerate every offense that can lose you a press pass.

    1. “rogue, mooning journalists,”

      I did not get the court’s reference to this. When I think of “mooning,” I think of either (a) pulling down one’s pants and bending over, or (b) moving about in a listless manner.
      Neither seems to apply to the journalist’s behavior on that day. And, in regards to Definition B, mooning behavior seems absolutely innocuous…it’s a person’s purposeful and deliberate actions that might be potentially dangerous or unprofessional.

      Is there a 3rd “mooning” meaning that I’m unaware of and applies to the behavior in question here?

      1. Could it perhaps be “rogue, moonlighting journalists”?

        Back when I was 16 years old, Playboy magazine wasn’t my go-to source for White House news…..

      2. It’s definition A.

        “Finally, raising the specter of the absurd, the White House argues that it cannot be the case that “the Press Secretary would be powerless to take action even were a reporter to ‘moon’ the President…”

        Sounds like protected speech to me.

        1. Nice catch. I used Search to hunt for “mooning” and therefore missed the line you saw. Thanks.

      3. “I did not get the court’s reference to this. When I think of “mooning,” I think of either (a) pulling down one’s pants and bending over, or (b) moving about in a listless manner.”

        They mean the first one. in the sense that someone who did that could OF COURSE be sanctioned, but asking the President questions he doesn’t know the answer to, or which he would prefer not to answer, is not of the same nature.

    2. What does the DC criminal code say about criminal threatening?

      Assuming this met that standard, wouldn’t that alone constitute grounds?

      1. This is ridiculous.

        Karem threatened no one. That asshole Gorka blew nothing up into something and then went and got the press pass revoked.

        The fierce 1A defenders are of course making excuses for WH behavior.

    3. How did you jump from “some notion” to “complete set” there?

  2. “Texas law that allows seniors to vote by mail—but not those under 65—probably survives rational basis.”

    OK, I glanced at the rationale for why this was compatible with the twenty-sixth amendment. Not persuaded – it seems like clear-cut age discrimination to me.

    Texas could simply allow absentee balloting for someone with a medical excuse. This might have a “disparate impact” but would avoid explicit age discrimination.

    1. It is age discrimination, as the opinion recognizes. It’s just not unconstitutional age discrimination.

      1. Amendment XXVI
        Section 1.
        The right of citizens of the United States, who are 18 years of age or older, to vote, shall not be denied or abridged by the United States or any state on account of age.

        Section 2.
        The Congress shall have the power to enforce this article by appropriate legislation.

        1. Imagine a law giving special assistance to one race of voters but not to another. How can that be distinguished from giving aid to one age of voters but not another?

          1. Giving aid to one race of voters (it seems to me) would violate the equal protection clause, but not the 15th amendment.

            1. That’s certainly intriguing – what is the basis for your view?

              1. The text of the relevant constitutional provisions.

                The Fifteenth and Twenty-Sixth Amendments say that the right “to vote “shall not be denied or abridged” on the basis of race or age (among people over 18), respectively. And the right to vote (in Texas and in your hypothetical) hasn’t been abridged: every otherwise qualified voter can vote. Granting an extra benefit to make it even easier for one subset of people to vote doesn’t deny or abridge the right of the people who don’t get that benefit.

                1. So if whites were allowed to vote by mail but not blacks, that wouldn’t “abridge[]” the right to vote based on race?

                  Or if early voting was limited to whites only, requiring blacks to vote on election day? They still have the right to cast ballots!

                  1. Yes, Eddy, you’ve got it.
                    since everybody who is a citizen and is of age can cast a ballot on election day by showing up at their precinct’s designated voting location, nobody’s right to vote has been abridged based on race.
                    So then you move on to the other important amendments, and you find that unequal protection of laws DOES actually violate one, even if it doesn’t violate the fifteenth.
                    In other shocking news, letting voters of one race vote early while limiting the voters of other races ALSO wouldn’t violate the third amendment, or the 8th.

    2. Would it be your position that if a state gives special accommodations to one group of people that it does not give to others – special procedures for the blind, or for people in hospitals, etc. – it violates Equal Protection or constitutes a denial of access?

      If so, why didn’t the previous law, that permitted voting by mail to people in various categories, just narrower ones, also constitute denials of access to or discrimination against people Not in those categories?

      1. Because there’s a constitutional amendment against age discrimination, but not an amendment protecting sighted people or people outside of hospitals.

  3. Glad to see the 1972 Libertarian plank is still protecting women’s individual rights from mystical bigots, race suicide eugenicists and Dixiecrats after all these years. Irish voters’ repeal of Amendment 8 had made it clear that even the brainwashees of Romish or Ceausescu’s Romanian doctrine no longer can be depended on to frivolously point service pistols at American physicians and frightened women. –libertariantranslator

  4. Third Circuit definitely got that one right, although I am curious as to how the equal protection challenge would shake out. I assume that would have used strict scrutiny because it was a classification regarding a fundamental right. Or would it still be intermediate scrutiny? I’m not even sure how this law would pass rational basis review. Surely there are other industries with a history of political corruption that don’t have their contributions restricted. If so those means aren’t rationally related to stopping political corruption. Unless they could have shown it is uniquely corrupt somehow?

  5. Let me see if I get this straight.

    Cops shoot a man in his home for the offense of accidentally triggering his med alert and that’s OK.

    Cop accidentally kills a man who is resisting a legitimate arrest and even though every officer at the scene is immediately fired and has now been arrested, we have worldwide protests.

    Am I missing something here?

    1. Mostly, you’re missing the “caught on videotape” though there are also strong components of “it lasted nine minutes” and “lots of bystanders tried to inject some sanity into the situation and were rebuffed”. The med alert killing is still wrong but, based on what we know, not as egregious.

      You’re also doing a lot of work with “accidentally kills a man” – deference that the cops would certainly not show you if you held someone down for 9 minutes and interfered with first responders.

      1. Accident implies negligence of some sort. When at best the officer was reckless, which definitely isn’t the same as an accident. And based on the cries from Floyd and the witnesses about his state, there is a very strong case for the officer acting knowingly. Did he ever cross the line into a purposeful killing? It would be very hard to prove that, but nine minutes is certainly enough time to form that intent.

        1. Don’t trouble Dr. Ed with facts. He doesn’t believe in them.

          1. That’s not at all true. Dr. Ed loves facts. He loves them so much, he makes up a whole lot of extra ones of his own, just to keep himself company.

            1. Like how the guy who was shot was ALSO Black?

      2. If you think “accidentally” is doing a lot of heavy lifting in Ed’s comment, you should instead focus on his tortured (pun intended) definition of “*resisting* a lawful arrest.” If you think that laying perfectly still on the ground, gasping and crying for help, with 4 cops on you, with no weapon on you or around you actually equals “resisting” . . . well, you have a view of ‘resisting’ that–thank God!–99.9% of humans don’t share with you. (But I do admit that other Russian trolls/bots would probably use the word in the same way you are doing.)

      3. A gun is defined as deadly force. A knee is not.

        1. It is if you’re crushing someone’s windpipes. The human body is capable of using deadly force without tools. If it’s being used in a way that tends to kill people, it’s deadly force.

  6. My fellow Texas lawyers, especially those of us admitted to practice in the Western District of Texas, may wish to know which federal district judge there undertook, in the words of the Fifth Circuit panel in the mail-in voting case, took the Covid-19 crisis to be “a roving commission to rewrite state election codes.”

    PACER confirms that it was the Hon. Fred Biery, a Clinton appointee confirmed in 1994.

    1. Oh my gosh, they just ripped that dude. It was awesome! Fred Biery, hang your head in shame.

      My favorite: “There is not a single principle of rational-basis review that the district court got right.”

      Plenty of other gems

      “the court jerry-rigged some straw men and proceeded to burn them”

      “an order that will be remembered more for audacity than legal reasoning”

      “and various poems”

      “not whether they offend the policy preferences of a federal district judge”

      “hurling invectives at what it apparently saw”

      “No stranger to rank speculation, the judge then accused Texas…”

      “Shooting in the dark, the court guessed that Texas…”

      1. I wish more conservative judges would tell liberals like it is when liberals make ridiculous APA “arbitrary and capricious” determinations or somehow find Constitutional rights to kill babies or ejaculate in other men.

        1. such an active imagination you have! Tell me more about these liberals who are finding Constitutional rights to kill babies… For example, are any of them also present here in objective reality?

  7. You know, I am wondering about that Sixth Circuit case re: Flint Water Crisis. The former governor is being sued. Let’s fast forward to today.

    Some governors made extremely bad decisions wrt requiring nursing homes to house Covid-19 patients. This resulted in many deaths in nursing homes among elderly residents.

    Might these governors also be sued for their policy decisions that mandated certain actions by state agencies and regulated entities?

    1. I’d guess you’d run into QI if you tried to sue a governor because they made COVID regulations that resulted in you becoming infected. And if you didn’t become infected, your case gets kicked for lack of standing.

  8. Two things astonishing about the Westchester police shooting case of the veteran in his apartment:

    1. Police argued that since they stood just outside the door when they shot the man, and crossed the threshold only to retrieve the body, there was no unlawful entry. Shooting him wasn’t an entry, and entry to retrieve a body was a lawful entry. And the District Court judge bought it.

    2. The District Court allowed some claims, which went to a jury. And the jury found for the police.

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