Short Circuit: A Roundup of Recent Federal Court Decisions

The trial penalty, access to bail hearings, and mustard gas.


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

Wildfires are raging across the West, and California is grappling with a record-breaking season. Why, then, does the state tell qualified firefighters that they can't earn a living fighting fires? The state's irrational law barring people like IJ's client Dario Gurrola from working isn't the only one of its kind on the books. Learn more about this and other collateral consequences laws in the latest episode of IJ's Deep Dive.

  • Pro tip: When drafting criminal laws, try to avoid language that the First Circuit is forced to call "a jumble of words."
  • Two-thirds of this Third Circuit panel says that the First Amendment protects the public's right to access off-the-record bail hearings but that right does not extend to recording or transcribing those hearings. Which, a dissent notes, seems like a pretty cruddy kind of right.
  • Fifth Circuit: We're not saying a criminal defendant can never successfully establish a "trial penalty" claim, but the sentencing judge would pretty much have to say, "I'm imposing a trial penalty."
  • Allegation: In 1987 and 1988, U.S. chemical manufacturer exports 538 tons of thiodiglycol to Western Europe, knowing that the shipments are likely to be diverted to Iraq for the manufacture of mustard gas. In 1994, veterans of the Gulf War sue, alleging they suffered injuries from exposure to mustard gas. After removal to federal court, district judge rules for chemical manufacturer. Fifth Circuit: Correctly. The Justice Against Sponsors of Terrorism Act does not apply to injury caused by acts of war, which this would be.
  • On September 25, just 18 days before early voting begins in Texas, a district court enjoined enforcement of a 2017 Texas law that eliminated straight-ticket voting. Fifth Circuit: Can't be doing that so close to an election; the state has already mailed out thousands of ballots without straight-ticket voting. The ruling is stayed.
  • Michigan man drives drunk, sideswipes a car, runs from police into the woods, but eventually gives up. Even though he lies down and attempts to surrender, officer beats and chokes him, saying something like "that'll teach you to run." Jury awards $1 in actual damages and $200,000 in punitive damages. Sixth Circuit (over a dissent): Sure, punitive damages can be more than actual damages. But not that much more. $50,000, tops.
  • Michigan man falls $1,100 behind on his property taxes, leading the state to foreclose on his home, sell it at auction for about half its fair market value, and keep all the proceeds. Sixth Circuit: And he shall have his day in court. Neither the Tax Injunction Act nor the now-repudiated Williamson County doctrine bar his claim.
  • The Democratic National Committee challenges Wisconsin election statutes, contending that, although constitutional in principle, the laws will abridge voters' rights during the pandemic. District court orders that some deadlines be extended. Intervenors, the Republican National Committee and the Republican Party of Wisconsin, seek a stay from the Seventh Circuit. Seventh Circuit: And how are you injured by this?
  • California churches challenge the constitutionality of the governor's COVID-19 executive orders as they apply to in-person worship services. District court denies a preliminary injunction, and the churches seek an emergency injunction pending appeal. Ninth Circuit: Denied. Dissent: Attending church is at least as important as going to the mall or getting a pedicure, both of which are allowed.
  • Is it a problem when a prosecutor repeatedly tells the jury that the presumption of innocence no longer applies to the defendant? Two-thirds of this Ninth Circuit panel is quite sure it is.
  • Allegation: Suspecting drugs, Nevada prison officials strip-search a woman visiting her incarcerated boyfriend (including having her take out a tampon; she is not provided with a replacement). Ninth Circuit: She should've been given the option to leave rather than be searched. It's a Fourth Amendment violation—but not a clear one. Qualified immunity!
  • California man gets a call from the police, who are investigating a burglary at his home. He leaves work to talk to them and—TWIST—there was no burglary. The "cops" are FBI agents investigating the man's alleged child-porn possession. They lured him home to search him and his car, which weren't covered by their warrant. Ninth Circuit (over a dissent): There are ruses, and there is exploiting government trust. Confession suppressed.
  • Proving once again that the "best evidence rule" does not actually refer to the helpfulness of evidence, the Tenth Circuit (over a dissent) vacates a drug conviction because the government offered translated transcripts of incriminating Spanish-language conversations instead of offering the original recordings.
  • And in en banc news, the Fourth Circuit will sit en banc to consider its stay of a district court order restraining South Carolina's enforcement of its witness signature requirements for absentee ballots during the pandemic.

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NEXT: What Happens if Trump Becomes too Incapacitated to Serve, Drops Out of the Election, or Both?

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  1. 5th Circuit – Can’t change election rules this close to an election.

    7th Circuit – Fuggit, why not?

    1. I like how Republicans talk all this talk about how they just want judges to follow the law, but then when they lose a case on a procedural issue like standing complain about the merits as if the outcome is the only important thing.

      1. Well, when standing is used as an excuse to preserve a judicial decision to violate the law, isn’t there a bit of a problem?

        1. Haha, so when interpretation of procedural rules don’t go your way they are an “excuse” whereas when you get to the outcome you want, it’s just judges dutifully interpreting the law. Got it.

          In any case, I suggest reading the decision. It seems like pretty straightforward standing analysis and hinges on a decision the Wisconsin Supreme Court (which has a conservative majority) made about whether or not the legislature can stand in for the executive in representing the state.

          (As an aside, on the merits there’s a big difference between the Texas and Wisconsin cases. The Texas case sought to actually change the ballot mechanics after voting had already started; the Wisconsin case is mostly about deadlines for registration and ballot receipt so the changes don’t require reprinting ballots or having some voters working under different rules than others.)

      2. If political parties lack standing to adjudicate voting issues, how did the Democrats get into court?

        This is not a procedural issue, this is blatant election interference by Democrats.

  2. There is a BIG difference between fighting forest fires and fighting house fires, where there is the opportunity for burglary.

    1. A. Is there any evidence of a rash of firefighter-thieves?
      B. Are you aware of a lot of instances of individual firefighters being unsupervised as their fighting fires? Are you unaware of the principle of the buddy system?
      C. Do you really think that most of us care about the risk of losing a little money in the house when the alternative is losing that money (and the rest of the house) to the fire?

      1. A. Wouldn’t you first have to not be prohibiting ex-con firefighters, before expecting such evidence?
        B. Wait, you think the buddy system is never violated? What, are they hiring Siamese twins?
        C. We actually car about both, but there’s some concern that if you had firefighter thieves, they might also be arsonists, to create opportunity for thieving. And that they might steal from their fellow firefighters.

        Phoenix firefighter accused of intentionally sparking fires, stealing from fire stations

        It seems to me that this policy at least meets rational scrutiny.

        1. A. No, not at all. Many thieves are arrested for the first time. It’s not some special skill available only to ex-cons.
          B. I think firefighters follow the buddy system pretty rigorously because it’s an essential safety protocol. Yes, it is sometimes violated but the fact that it exists will reduce opportunities for abuse such as casual thievery.
          C. Firefighters as arsonists is a long-known and very significant problem. And there is a causal link between the two. There is no such causal relationship between firefighters and thievery.

    2. Fighting forest fires has the priority goal of keeping structures from burning, AIUI. That certainly can involve going inside houses.

    3. On the other hand, making it easier for people to get jobs once they get out of prison makes it that much less likely they’ll commit more crimes.

      1. It does, if they’re reformed, and one hopes they’re reformed.

        Counts on them being reformed, OTOH… Are you obligated to do that?

        On balance I’d probably not have this policy. But I can’t say that it’s a crazy policy.

        1. Making it harder for them to get legitimate employment is counter productive to getting them reformed in the first place and to keeping them “reformed”.

  3. I was not surprised to learn that the group of authoritarian cop succors in the Sixth Circuit excessive force case from Michigan was a three-clinger panel.

    Let’s hope enlargement of the lower federal courts next year reduces the likelihood of panels dominated by authoritarian right-wingers.

    1. Sorry . . . c@p succ@rs. Can’t edit that one now.

      1. Cap suckers? As in “put a cap in yo ass”? I never knew your fetishes were so detailed.

  4. Is it a problem when a prosecutor repeatedly tells the jury that the presumption of innocence no longer applies to the defendant?

    Is there a new definition of repeatedly that I missed?

    1. “This idea of this presumption of innocence is
      over. Mr. Ford had a fair trial. We were here for three weeks where … he gets to cross examine witnesses; also an opportunity to present evidence information through his lawyer. He had a fair trial. This system is not perfect, but he had a fair opportunity and a fair trial. He’s not presumed innocent anymore.”

      That’s twice, which counts as a repeat to me.

      1. Presumption of innocence might be thought of as the null hypothesis.
        Seems fair to argue that the null hypothesis, innocence, has been negated by the presented evidence.

  5. “irrational law”

    Nothing “irrational” about not wanting ex-cons to be first responders.

    Might be bad policy but completely rational.

    1. Except that California uses prison inmates to fight fires.

      1. Middle of forest, under supervision.

    2. “Nothing “irrational” about not wanting ex-cons to be first responders.”

      Beats having them be criminals.

      1. Are there any other options?

        Look, I’m not going to say this is necessarily the best possible policy. But it’s at least defensible enough that it isn’t a crazy policy.

        1. When the state trained them to be firefighters while they were prisoners, what else in the way of decent employment do you expect them to be qualified for?

  6. “And how are you injured by this?”

    How were the Democrats?

    1. Well, Bob, “my people can’t get to the polls” is a very different kind of injury from “the other side will get to the polls.”

    2. Orange Man Bad jurisprudence.

  7. Proving once again that the “best evidence rule” does not actually refer to the helpfulness of evidence, the Tenth Circuit (over a dissent) vacates a drug conviction because the government offered translated transcripts of incriminating Spanish-language conversations instead of offering the original recordings.

    This is silly, and the dissent has it 100% correct. The defense reviewed the original recordings and admitted that the provided transcript’s translations were accurate. One you’ve done that, I see no reason why any judge with a half-ounce of common sense would conclude that there was anything to add by requiring the jury to listen the something they either cannot understand, or would put a personal interpretation on.

    1. The dissent invented expert testimony that did not exist as an excuse to ignore the best evidence rule, which is not merely a suggestion.

  8. “California is grappling with a record-breaking season.”
    Please cite your source. This source says otherwise.

    1. Looking at that chart, something very obviously changed from the thirties through the fifties. I have no idea what it is, but the article mentions that by 1960 “fire suppression was indeed going strong” so it seems like it’s not a meaningful comparison.

  9. That Ninth Circuit case of Ford v. Perry is particularly galling. It appears from reading the case summary included in the opinion that there was not even remotely close to enough evidence to conflict. From what I can glean the only evidence is a sketchy palm print identification, but even if it was 100% it only proves that Ford put his hand on the car at some point. I see nothing in the jailhouse phone call or facebook post that looks incriminating.

    I would love hear one of the jurors explain how they concluded that Ford was guilty beyond a reasonable doubt.

    1. typos, dammit, please change “conflict” to “convict”.

      1. OK, but only if the glove fits

    2. The argument about the palm print was that the car had just been washed, and therefore the “at some point” must have been made at the time of the shooting. Problem is that the print identification was shaky, and even if credited, unless the 9th Circuit is really omitting a significant amount of evidence, I cannot fathom how anyone could find guilt BARD. No eyewitness, no other physical evidence besides the alleged palm print, and the palm print doesn’t even match the rest of the evidence, which suggests that the shooter was not on that side of the car. The call and the FB post, even if interpreted in the light most favorable to the prosecution, suggest that he might have committed some shooting, but do nothing to show that he did this one.

      1. Reading the case summary in the opinion reminded of this paragraph by John Grisham in “Rogue Lawyer”:

        “Gardy was essentially convicted the day he was arrested, and his trial is only a formality. The dumb and desperate cops trumped up the charges and fabricated the evidence. The prosecutor knows this but has no spine and is up for re-election next year. The judge is asleep. The jurors are basically nice simple people, wide-eyed at the process and ever so anxious to believe the lies their proud authorities are producing on the witness stand.”

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