Short Circuit: A Roundup of Recent Federal Court Decisions

Check fraud, 'golf balls,' and ADA law


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

IJ is going to The Show! Next Monday IJ Attorney Patrick Jaicomo will argue before the U.S. Supreme Court in Brownback v. King, a case in which the government is seeking to create a huge new loophole through which government employees can escape accountability when they violate someone's constitutional rights. Learn more about the case here and check out the argument live on the Supreme Court's website

  • Per footnote one of this D.C. Circuit opinion, Senior Judge Silberman is having none of your acronym nonsense 
  • First Circuit: No qualified immunity for police who enhanced Lord's danger, leading to attack on Irish.
  • Corrections officers: We didn't "conspire" to beat the crap out of that inmate; we just spontaneously decided to do it (and cover it up). Second Circuit: No dice.
  • After admitting check fraud to postal inspectors, Brazilian suspect in New York flees to Brazil and evades capture for 11 years. Chutzpah alert: Upon his arrest, he alleges that the 11-year delay between indictment and prosecution violates the Sixth Amendment right to a speedy trial. Second Circuit: How did you think that was going to turn out?
  • Fourth Circuit (dissent): "Does the Constitution permit warrantless dragnet surveillance by a police plane in the sky above an American city? Until now, this question was merely a provocative hypothetical for law professors or a slippery-slope concern for litigants. But with the Aerial Investigative Research ("AIR") program, Persistent Surveillance Systems ("PSS") and the Baltimore Police Department ("BPD") bring the thought-exercise to life. Because the majority concludes the warrantless surveillance program is constitutional, I respectfully dissent."
  • In 1994, a group of men in Arlington, Tex. kidnap a 16-year-old high school student, transport her to Arkansas, repeatedly rape her, and murder her. One of the men is convicted of (among other crimes) kidnapping resulting in death (for which he is sentenced to death) and carrying a firearm during a crime of violence (for which he is sentenced to 60 months' imprisonment). Man seeks leave to file successive habeas petition, challenging, not the kidnapping conviction, but the firearm conviction. Fifth Circuit (over dissent): Denied. The firearm conviction stands. (The man is scheduled to be executed for the kidnapping count on November 19 and sought to argue that the invalidity of his conviction on the firearm count meant that he should be resentenced on the kidnapping count.)
  • Texas executive order exempts from its mask mandate those persons who are "voting, assisting a voter, serving as a poll watcher, or actively administering an election." Fifth Circuit (Oct. 14, 2020): The case is remanded to the district court to decide whether the exemption violates the Voting Rights Act and whether enjoining it is appropriate. District court (Oct. 27, 2020): The exemption likely violates the Act and enjoining it would not be a drastic change to election rules, so it is preliminarily enjoined. Fifth Circuit (Oct. 30, 2020): It's too close to Election Day to change election rules, and altering the rule on masks would cause voter confusion. The district court's preliminary injunction is stayed.
  • After completing his prison term in late 2015, man was supposed to complete three years of supervised release. Instead, he vanishes. He's arrested for public intoxication and failure to identify himself in late 2019, well after his three-year supervised release term was to have expired. The district court sentences him to 12 months' imprisonment for violations of his supervised release. Man: The district court lacked jurisdiction over violations that took place after the three-year term expired. Fifth Circuit: That argument might fly in the First Circuit, but it doesn't fly here (or in the Second, Third, Fourth, and Ninth Circuits). The term of supervised release was tolled while the man was a fugitive.
  • Rectum? Damn near killed 'em! Or, at the very least, went a little bit overboard trying to retrieve three golf-ball-sized bags of heroin and fentanyl from an Ohio suspect's interior. Nevertheless, the Sixth Circuit holds the search was reasonable.
  • Your editors will never cease to be astonished at the things people will volunteer to federal investigators, as in this decision of the Sixth Circuit, upholding the conviction of a man who caught the attention of the FBI after telling them that he "would be the perfect recruit for ISIS."
  • Your editors will also never cease to be astonished at the things police officers can do and still retain their jobs, as in this decision of the Seventh Circuit, regarding a Chicago police communications operator who was reinstated after shooting someone during a road-rage incident that could have ended with the other driver simply leaving the scene. But, per the court, her supervisors have qualified immunity for her temporary termination.
  • Despite having received a handicapped parking placard for a "permanent" knee condition, 55-year-old Illinois corrections officer applies for and is accepted to the Cook County Sheriff's Police Academy. When questioned about the placard, he prevaricates, leading to his dismissal from the Academy. An ADA violation? Seventh Circuit: You were dismissed for lying, not for bad knees.
  • Nevada law gives homeowners' associations a superpriority lien on properties within the association for certain unpaid assessments. If the HOA forecloses on the property, it can extinguish other liens, including a first deed of trust held by a mortgage lender. An uncompensated taking? Ninth Circuit: Despite the argument's intuitive appeal, there's no state action and, thus, no taking.
  • In "cold comfort" news, this Tenth Circuit opinion awarding sanctions against an attorney goes out of its way to make clear that it does not think the appeal before it was frivolous, just that it was argued frivolously.
  • Do "complex questions of petroleum migration and benzene exposure" require expert testimony?  Your editors might say yes based on the fact that they don't know what those words mean, but this Tenth Circuit panel says yes for probably better reasons.
  • And in en banc news, the Fifth Circuit will revisit its holding that a welder who never goes to sea nonetheless qualifies as a "seaman" under the Jones Act, presumably because its initial opinion failed to make any funny allusions to H.M.S. Pinafore.
  • And in further en banc news, the Fifth Circuit will revisit its holding that district courts cannot entertain lawsuits filed by defendants in ongoing SEC enforcement actions who question the legitimacy of the administrative law judges hearing their case.
  • And in still further en banc news, the Fifth Circuit will revisit a challenge to a Texas law requiring "fetal demise" before an abortion can be performed.

Friends, IJ has been beating the drum to raise awareness of the dangers and corruption surrounding civil forfeiture for years now. So we were not at all surprised when, on November 2, 2020, a federal court sentenced the former police chief of Manning, South Carolina, to a year and a day in prison for stealing nearly $80,000 in cash seized by his office during a traffic stop. But Palmetto Staters may see an end to "policing for profit" after IJ argues an upcoming case before the South Carolina Supreme Court. Learn more here


NEXT: The Senate Judiciary Committee in the 117th Congress

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  1. “Nevada law gives homeowners’ associations a superpriority lien on properties within the association for certain unpaid assessments. If the HOA forecloses on the property, it can extinguish other liens, including a first deed of trust held by a mortgage lender. An uncompensated taking? Ninth Circuit: Despite the argument’s intuitive appeal, there’s no state action and, thus, no taking.”

    I think there’s a strong argument that state governments have allocated so much power to HOAs, and power of the sort only governments normally exercise, that they should be considered a new level of government, not a private organization.

    And how was passing the law in the first place not a state action?

    1. Obviously, it’s a plain attempt to discourage people from buying into property subject to a Nevada HOA, by discouraging banks from making loans to buy such property.

  2. That footnote?

    The Agency and thereby the parties regularly use the acronym “ILEC” for Incumbent Local Exchange Carriers, and “CLEC” for Competitive Local Exchange Carriers, but we prefer the use of the English language and deplore the practice of using acronyms unknown to the general public. Thus, we use “incumbents” to refer to what the parties call “ILECs,” and “insurgents” to refer to what the parties call “CLECs.”

  3. Okay, let’s get this straight, a court actually said that NOT mandating a mask while voting violates the voting rights act? Is up down and left right yet?

    1. Yeah, I’m pretty sure that the arguments for “a mask mandate violates voting rights” and “not mandating masks violates voting rights” are equally persuasive.

  4. “Does the Constitution permit warrantless dragnet surveillance by a police plane in the sky above an American city? Until now, this question was merely a provocative hypothetical for law professors or a slippery-slope concern for litigants.

    No, it’s been done for decades – in the most trivial cases for speeding tickets. The ruling itself provides examples of cases from the 80s upholding it – or even more extreme practices.

    This judge’s dissent seems to be another one from the luddite branch of government that thinks that “in a plane” or “online” or “with a camera” suddenly changes things. Good for the rest of the Court for not jumping to grant the injunction. I just hope they’ll be as reasonable when the case is done.

    1. “in a plane” is how a lot of outdoor marijuana grow operations are found. Seems like straightforward application of “plain sight” doctrine. You don’t have 4th-amendment privacy rights for things you do openly.

      1. I agree, it should be a simple continuation.

        But things get weird when technology gets involved. Kyllo still makes me angry. The idea that light of certain wavelengths is protected but other wavelengths isn’t makes me want to smack the ignorant judges around.

        So I can only hope that they won’t say something like “but it involves a computer, therefore all previous law is invalid” as so often happens.

        1. “common business practice, but with a computer” patents stopped getting approved some years ago.

  5. Do “complex questions of petroleum migration and benzene exposure” require expert testimony?
    I’ll leave petroleum questions to better minds, but this former chemistry teacher agrees with industry that the only safe level of benzene exposure is 0%. Wonderfully helpful substance, very very dangerous.

    1. The problem is, in a world where parts per billion and parts per trillion measurements are feasible, “the only safe level is 0” just isn’t sane. Benzene is naturally present in some foods at ppb or ppt levels.

      And to take benzene exposure to zero, you’d have to ban all combustion of organic materials. No roasting marshmallows over the camp fire, no backyard grill, no bbq, no fireplaces in homes… In fact, you’d pretty much have to stop roasting meats altogether.

      Benzene is a natural breakdown product of both beta carotene and the amino acid phenylalanine. Give up your carrot juice!

      Sane people understand that there are tradeoffs on EVERYTHING. Zero exposure just isn’t feasible.

      1. PPT? Dioxin and furan emissions are reported in parts per quintillion once you convert the fractional nanograms per cubic meter.

    2. If you actually were a chemistry teacher, you are not doing yourself or your students any credit with that statement. 0% exposure is impossible. Zero percent of anything is unachievable in the real world. All you can say is that something is below the level of detection of X technology.

      And that’s even before you get to the principle of hormesis which, yes, does apply to benzene too.

      1. “And that’s even before you get to the principle of hormesis”

        Yes, the most fundamental principle of toxicology: The dose makes the poison.

        Even water is toxic in large enough doses, and no, I am not referring to drowning.

        1. Water intoxication. I did that to myself once. Fortunately, I only threw up. It’s killed some people.

      2. “0% exposure is impossible. Zero percent of anything is unachievable in the real world.”

        Didn’t used to be impossible for, say, plutonium. Technetium exposure is 0% in the real world.
        Exposure to ionizing radiation is best kept as close to 0 as can be arranged, even if that huge uncontrolled fusion reactor is up there only 1 astonomical unit away.

        1. Low level radiation is beneficial, the only question is “How low level is low level”.
          Removing ALL exposure to ionizing radiation (while impossible) would be like removing all exposure to ‘harmful’ bacteria and viruses.

          1. Enough radiation to turn Bruce Banner into Hulk is too much. Ditto for turning Reed Richards, Susan Storm, Johnny Storm and Benjamin Grimm into the Fantastic Four. Due to retcon, enough ionizing radiation to turn Jean Grey into Phoenix is no longer clearly hostile to life. And that’s just Marvel, and doesn’t include reflected radiation of the type that affects the Moon-Wolf or the Moon Knight.
            Over at the competition, solar radiation does wonders for Kryptonian health, but didn’t do anything for the ordinary humans.

  6. The correct verdict in Brownback v. King should be:
    -The Bivens claim can proceed
    -The FTCA claims are reinstated and can proceed
    -The officers were in fact operating under color of state law, and so the section 1983 claims are reinstated and can proceed.
    -Government officials are generally liable at each government level a member of their unit operates at – no shell games. Joint task forces mean more liability, not less.
    -Remanded to proceed with jury trial on all claims.

    But SCOTUS is what imagined QI into existence, so we’ll likely never get a correct verdict out of them on government accountability.

  7. Rectum? Damn near killed ’em!

    The facts of this case, and the legal rule it applies, are both incredible outrages. It is the criminal justice system at its most barbaric. Evil DEA agents sticking stuff up a shackled man’s rectum, and cracking jokes about it, all to find relatively small quantities of drugs. The notion that this is legal, indeed, the notion that there’s anyone at the DEA who would agree to participate in this, let alone joke about it, just speaks to what a barbaric society we really are.

    Did it ever occur to any of these awful sadists that you don’t actually have to enforce the drug laws if doing so requires that you shackle a person and repeatedly shove various things up his butt? You can just let the guy go. I know, he’s carrying drugs. So what. A drug dealer is not as bad as a rapist, and the DEA agents committed a legalized rape.

    1. If you consider 120 grams of heroin and fentanyl a “small quantit[y]”, you must party a lot harder than most people I know. And having a bunch of fentanyl in your digestive tract does seem like pretty strong grounds for medical intervention by trained medical personnel who were the only ones who stuck anything anywhere in this case).

      I think there’s a lot of basis to question the wisdom or utility of our anti-drug policy, but these sorts of histrionics don’t seem particularly productive to me.

      1. Having any significant amount of fentanyl up your ass, unless VERY carefully packaged, is a medical emergency. The lethal dose is absurdly low.

      2. If the DEA was trying to help him, they could have gotten the drugs out and not prosecuted him.

        No, they raped this man not to help him, but so they could throw him in prison.

        My comments are justified and you are defending a gross human rights violation.

        1. “gross human rights violation”

          In more ways than one.

      3. “If you consider 120 grams of heroin and fentanyl a ‘small quantit[y]'”

        Let’s start by conceptualizing the fact that 120 grams of anything is a small quantity. If you mean to say that it’s small or large relatively, you need to include a reference of relative to what. Obviously, even 1 gram is large relative to the amount of heroin and fentanyl naturally occurring in the rectal cavity, whereas 120 grams is not large relative to other objects that have been known to have become lodged in individuals’ prison wallets.

        1. “Large” and “small” are always relative terms. 1 million tons is absurdly small on the stellar scale, but a bacteria that massive would be quite unusual.

          In this case, it’s relative to normal amounts. The normal dosage for heroin is 0.1 grams, and usually lethal at 0.4 grams. Fentanyl is lethal at about 0.002 grams.

          120 grams total of those two substances is a lot in terms of personal drugs. It only starts to be ‘small’ when put into the terms of annual cartel smuggling operations.

          1. And, again, it doesn’t matter how large it is. This was still a rape. The DEA agents were after one thing here, and it had nothing to do with this guy’s health. They wanted evidence so they could ruin his life with a prison term, and they laughed at the fact that they had to repeatedly sodomize him to get it.

            If it was a “large” amount that was going to kill him, that was a risk he chose to take. In any event, he wouldn’t have had to take it if the DEA would simply not enforce our stupid drug laws, and he also wouldn’t have had to take it if the government simply had a policy that if a person is suspected of having drugs in his body, he can elect to go to the hospital for treatment but is not charged because the search would be unreasonable.

            Instead, we have DEA agents who rape suspects and laugh about it, and courts that call it legal and issue rape warrants.

          2. “‘Large’ and ‘small’ are always relative terms.”

            No, they are not.
            1 million tons is a large weight. 100 parsecs is a long distance, 1 femtosecond is a small amount of time. “Large” and “small” can, in fact, be used to refer to relative scale, if phrased appropriately. The words there would be “larger” or “smaller”.

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