Short Circuit: A Roundup of Recent Federal Court Decisions

Tax returns, ballot deadlines, and Pocky cookies.

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

Each state has its own constitution, and each state court has the chance to interpret its own constitution independently from the federal one. One state that's more constitutionally independent than many is Pennsylvania. On Friday, October 16, please join IJ's Center for Judicial Engagement for an online forum on judicial engagement and the Pennsylvania Constitution, featuring many of the state's foremost constitutional scholars and litigators, including a keynote address by blawgmaster Howard Bashman. Plus, free CLE for Pennsylvania lawyers. Register today!

Meanwhile, you can listen to this week's Short Circuit podcast, talking all Pennsylvania, all the time, including some innocuous speculation on whether the state's governor could veto the legislature's appointments to the Electoral College.

  • In the mid-1980s, a Biddeford, Me. police officer offered a teenager a ride home from school. Years of alleged sexual abuse ensued. First Circuit: The district court erred when it dismissed the teen's (now adult's) claims as barred by the statute of limitations, since he only recently learned that the officer's supervisors were aware of additional allegations of abuse.
  • Penalty-phase jury in Puerto Rico reports that it has not reached a unanimous verdict on whether to impose the death penalty and that, as a result, it understands the court will sentence the defendant to life in prison. First Circuit: If the jury had truly deadlocked, the Double Jeopardy Clause would allow the government to seek the death penalty again. But the verdict here is ambiguous and must be construed in favor of the defendant, meaning the death penalty is barred.
  • The president has long sought to keep his tax returns private. And it's not going well for him lately, given the recent New York Times exposé and this week's Second Circuit decision refusing to set aside New York grand jury subpoenas demanding that the president's accounting firm hand over the documents.
  • Pocky is a chocolate-covered stick-shaped cookie. Its design makes it work better as a snack: one end is uncoated (to avoid sticky fingers), and the compact shape makes it portable and easy to eat without having to open one's mouth wide. But because that design is useful, says the Third Circuit, trade-dress law does not protect Pocky from competitors. Come for the patent and trademark law primer, stay for the cookie puns.
  • The city of Englewood, N.J. requires assisted living facilities to obtain a variance if they want to build anywhere other than a single district that also allows healthcare facilities, hotels, and senior living communities. Does it violate fair housing laws to require a variance to build a 150-bed assisted living facility in a single-family residential district? It does not, says the Third Circuit.
  • Anderson County, S.C., deputy sheriff loses control of his patrol car while going at least 38 miles per hour over the 45-miles-per-hour speed limit. He slams into an oncoming car, severely injuring the driver. Fourth Circuit: And he is not entitled to qualified immunity. Dissent: There are a lot of people who don't like qualified immunity, but the majority appears to have forgotten what a high bar it sets.
  • Texas drug trafficker—known to friends and associates as "Chief"—claims to have supernatural powers, including "the ability to ward off law enforcement detection of criminal schemes." Astonishingly, he is arrested and charged with drug trafficking. Unhappy with the 48-month sentence his public defender negotiated, Chief decides to go to trial with a lawyer retained by his friends and family. Halfway through the first day of trial, and seeing the writing on the wall, he reverses course and decides to plead guilty, resulting in a 168-month sentence. Fifth Circuit: Which is fine. No downward adjustment for accepting responsibility when you wait that long.
  • Texas government watchdog requests press passes to give them access to the floor of the Texas House. After not receiving a final determination for three months, they sue, alleging a First Amendment violation. Meanwhile, the legislative session ends. Fifth Circuit: Moot; "[w]hen time is of the essence, a party must act like it." (NB: There is 100% a parallel universe where the watchdog group did sue immediately, and the case was dismissed as not ripe because there was no final determination.)
  • Sixth Circuit: Three judges, three opinions, all of which conclude that a 911 operator can be fired for using the N-word on her Facebook page.
  • Police show up at a Felch, Mich. marijuana grow operation with a warrant, and the grower, believing his operation is legal, offers to show them around. Prosecutors later allege the facility wasn't so legal after all. Sixth Circuit: Having offered the police a tour, the defendant cannot now complain that they exceeded the scope of the warrant.
  • Kentucky man is arrested for assaulting his girlfriend and being a felon in possession of a firearm. At the police station, he becomes violent and bites a police dog "because th[e] dog bit me and that was the only way to defend myself." He is convicted, is sentenced to 10 years' imprisonment, and appeals. Man: I obviously was not competent to stand trial, much less represent myself; remember that time I bit the dog? Sixth Circuit: Notwithstanding "the newsworthy act of biting a dog" and other unusual behavior, the man was competent and his conviction is affirmed.
  • U.S. District Court for the Western District of Wisconsin (September 21): Wisconsin's deadline for online and mail-in registration is extended from October 14 to October 21 and the deadline for receipt of mailed ballots is extended from Election Day to November 9. Seventh Circuit (September 29): The Wisconsin legislature lacks the authority to appeal the district court's order. Seventh Circuit (October 2): Wait, was that right? Wisconsin Supreme Court (October 6): No; the Wisconsin legislature can indeed defend the state's laws in court. Seventh Circuit (October 8): In that case, the district court's order is stayed. Judge Rovner, dissenting: "Good luck and G‑d bless, Wisconsin. You are going to need it."
  • Following in the path of then-Judge Alito, the Seventh Circuit's Judge Scudder (in chambers) pens an opinion on the circumstances in which an amicus brief may add value to the decisional process. (No word on the wisdom of parties' filing briefs opposing amicus participation.)
  • It is a federal crime for custodians to sexually abuse people in "official detention," a term that extends to detentions "pending . . . deportation." Youth care worker at facility for unaccompanied noncitizen children is convicted of sexually abusing his charges. Man: The children's removal proceedings were still ongoing when I abused them. So deportation wasn't inevitable at that point. So they weren't being held "pending . . . deportation." Ninth Circuit: That is decidedly wrong.
  • In more COVID- and election-related news, two-thirds of an Eleventh Circuit panel stays a district-court order directing Georgia to accept absentee ballots that are both postmarked by and received within three days after Election Day.

For years, the NYPD had a practice of threatening to evict people who had done nothing wrong, simply because a crime occurred at or near their home or business. Police would then use that threat of eviction to extract agreements waiving constitutional rights. (Parents would have to agree to bar their children from their homes; businesses would have to agree to warrantless searches.) In 2016, IJ sued on behalf of victims of these practices, and shortly afterward, New York City agreed to overhaul its law. But that change did nothing for countless past victims. This week, a federal court approved a settlement order preventing the city from enforcing all agreements it had extracted under its old law, restoring thousands of New Yorkers' constitutional rights. Click here to learn more.

NEXT: National Law Journal Symposium on Possible Questions for Judge Amy Coney Barrett's Confirmation Hearings

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  1. “It is a federal crime for custodians to sexually abuse people in “official detention,” a term that extends to detentions “pending . . . deportation.” Youth care worker at facility for unaccompanied noncitizen children is convicted of sexually abusing his charges. ”

    Good G-D. Do we really need a federal law that says it is a crime to ‘sexually abuse’ – anyone?

    1. So… you think sexual abuse should be legal?

      1. No, I think Flight-ER-Doc is truly horrified that we would even need a law to tell a federal employee that sexually abusing children is wrong, and illegal. The ‘Not So Nutty Anymore’ Ninth got this one right.

        1. The point of the law is not to tell employees it’s wrong, but to actually make it illegal, and enable the government to punish it.

          1. Right. You don’t need the law to tell them it’s morally wrong, you need to be legally entitled to prosecute them for it.

            I’d say, why would we need a federal law, when it’s presumably already illegal under the laws of all 50 states. But there’s still DC and some military bases, where state law doesn’t prevail

          2. bernard11…I get it, I don’t disagree with you. Seems amazing there wasn’t something already on the books more generic like…no federal employee anywhere can ever sexually abuse children at any time. This is the kind of thing that just makes you want to throw your hands up and say, “Really?! AYFKM?!”

            The other part that makes me shake my head in wonderment. How on earth did this case reach the Ninth Circuit Court?

            1. How on earth did this case reach the Ninth Circuit Court?

              I’m not sure what you’re confused about. The defendant was convicted of committing a crime in the U.S. District Court for the District of Arizona. Following that conviction, he had a legal right to file an appeal to the appropriate circuit court, which in Arizona is the Ninth Circuit.

    2. “Good G-D. Do we really need a federal law that says it is a crime to ‘sexually abuse’ – anyone?”

      Yes, because there are areas under Federal control where state laws do not apply. Federal detention facilities likely fall in that category.

      1. OK, how about a federal law saying that federal employees may not commit sexual abuse on anyone, anytime, anywhere?

        Why does it have to be limited to ‘custodians’ on ‘people in official detention’.

        1. I’m not sure I follow your complaint. The law in question, 18 U.S.C. §  2242(b), defines any sexual act between a custodian and a person in official detention as sexual abuse. What’s your problem with that, exactly?

          1. That it is limited to custodians, for detained persons.

            Why not just a law that federal employees may not. On anyone?

            the basis of this suit seems to be did the victims (the sexually assaulted people?) qualify under this fairly specific law.

            Why did the law need to be that specific? What about non-custodial federal employees (say the janitors, as opposed to ‘custodial’ staff, assuming those are guards and whatnot?

            Simply enough, say ‘anyone on federally controlled land may not commit sexual abuse’. There is probably already a law that covers that, in fact. Doesn’t matter to me if the assaulter is a federal employee or not, doesn’t matter to me if the victim is in legal confinement of some sort or not. And it doesn’t matter if either the assaulter or the victim are on the land, lawfully.

            1. I don’t think you’re getting it.

              This law makes it per se illegal for federal employees to engage in any kind of sexual act with people under detention. This is designed to prevent such a defendant from arguing that the sex was consensual, because that is legally irrelevant.

              It is indeed separately illegal to engage in non-consensual sexual activity within the special maritime and territorial jurisdiction of the United States, or in detention facilities housing federal prisoners.

      2. Only if on land purchased with the permission of the state legislature. Constitutionally the federal government is just an ordinary land owner without obtaining that permission.

        Not that the courts seem to care about that bit of the Constitution.

        1. Even if there’s concurrent state jurisdiction, I think there’s a pretty clear and strong federal interest in deterring crimes against federal prisoners by their jailers.

          1. I’m sure there’s such an interest, I just don’t think there being such an interest erases the fact that the federal government wasn’t delegated general police power.

            1. True, but this seems like a pretty straightforward application of the necessary and proper clause.

        2. “Only if on land purchased with the permission of the state legislature.”

          Not strictly true. A lot of the federal land in the western states is land that the Federal government never ceded to stat authority when the territories were granted statehood. It was never state land in the first instance.

          1. The above is WHY there is a lot more federal land in the western states than there is in the original states on the east coast.

  2. That weed case out of the sixth circuit is a doozy. This guy deserves the Drug Dealer version of the Godwin Award. What a total dope. [pun intended]

    1. Do you mean Darwin Award?

      1. You’ve got to be either dead, or at least sterile, to qualify.

      2. Yeah, duh! LOL. Long week.

      3. “Do you mean Darwin Award?”

        Don’t be a terminology nazi.

        1. Godwin…Darwin…they rhyme. Close enough. Heh heh.

          Either way, that weed guy was a total stunod.

        2. TwelveInch wins the Internet this week.

    2. If they still cared about the distinction between malum in see and malum prohibitum, it would at least go to demonstrate a lack of criminal intent.

  3. The 6th Circuit n-word decision (which was not the actual n-word but a derivation of it used by rappers) is a great guide for anyone looking to engage in a form of heckler’s veto and have a court later approve it. Worth the read.

  4. Also obviously immigration is positive by contributing to our nation’s diversity, America just wouldn’t be America if we didn’t import this:

    In 2003, Barrera found a way to assuage his fear when he met Appellant Christopher Omigie. Omigie is a naturalized U.S. citizen originally from Nigeria, where he claims to have been a “chief” or “king.” He held himself out to Barrera and other drug dealers
    as “a person with supernatural powers” that included “the ability to divine the future” and “the ability to ward off law enforcement detection of criminal schemes.”
    Omigie soon began working with Barrera, providing “supernatural
    protection” for the DTO through such means as “read[ing] cards,”
    cleansing conspirators with what he called “snake oil” (aptly named), selling magic candles, and cutting slits into Barrera’s skin with a razor. In return, Barrera paid Omigie somewhere between $250,000 and $300,000 over the course of ten years. Barrera also paid for Omigie’s periodic flights to Nigeria so that Omigie could “[r]epower [h]is energy.”

  5. Apparently, the penalty is 4 years in prison for drug trafficking and an additional 10 years for making the government meet its burden of proof, for a total sentence of 14 years. Which is completely ridiculous.

    Who REALLY has the burden of proof in a criminal case if requiring the government to prove its case results in a sentence that is more than 3 times as long??? Why are people being punished at all (much less this severely) for making the government prove it actually has the goods?

    Either we believe in due process or not. Let’s say you were actually innocent. You want to gamble that a confused jury won’t wrongfully convict (which, in fact, does sometimes happen)? When the punishment for having the government meet its burden is higher than the crime itself, that would tend to coerce even innocent people to plead guilty.

  6. Anderson County, S.C., deputy sheriff loses control of his patrol car while going at least 38 miles per hour over the 45-miles-per-hour speed limit. He slams into an oncoming car, severely injuring the driver. Fourth Circuit: And he is not entitled to qualified immunity. Dissent: There are a lot of people who don’t like qualified immunity, but the majority appears to have forgotten what a high bar it sets.

    All stories like this need reminders attached that it’s not about escaping potential prosecution for illegal behavior by officials, but follow-on lawsuits for the denial of constitutional rights by said behavior, to sue through the stupid government employee to reach the deep pockets of government, or the police unions’ insurance funds, or something.

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