Short Circuit: A Roundup of Recent Federal Court Decisions

Church in COVID, the Golden Rule, and Dr. Penis

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

New on the Short Circuit podcast: Drones over Baltimore and privileges or immunities in Washington state.

  • Bail-bond companies sue the Department of Homeland Security, alleging that the agency's procedures for collecting on immigration bonds violate the agency's own regulations and due process to boot. Among other things, the procedures give the agency the benefit of mail delays in both directions—with the 33-day period to file an appeal beginning to run as soon as the decision is mailed, and appeals timely only if received back by the agency before the period is up. D.C. Circuit: No problem here.
  • A college in Boston—well, not in Boston, nearby (no, not Tufts)—considers a number of factors in deciding whom to admit to its incoming freshman classes, one of which is a "personal rating" on which Asian American applicants consistently score lower than white applicants. Evidence of illegal racial discrimination? First Circuit: Being Asian American is merely correlated with Harvard's assigning a lower personal rating. Who can say which way the causation runs?
  • Religious groups challenge New York Governor Andrew Cuomo's executive order on COVID-19, alleging that it discriminates against religion by restricting attendance at worship services. A Free Exercise violation? Second Circuit: No preliminary injunction pending appeal. The order actually treats churches better than other "non-essential businesses," like casinos and gyms. Dissent: Yeah, but it treats them worse than "essential" business, like pet shops and liquor stores.
  • In a 55-page opinion filed only four days after briefing finished, the Third Circuit finds that none of the plaintiffs before it has standing to challenge Pennsylvania's procedures for late-received mail ballots.
  • Another case in the annals of "bad things can flow from voluntarily talking to the police." Alvarado, Tex. police approach a man at a gas station and ask if the trailer he's pulling has a VIN. (It does not, as it's homemade.) Because he continues to answer their questions and they do not prevent him from leaving, says the Fifth Circuit, the Fourth Amendment does not apply to the stop. And their subsequent seizure of the trailer is acceptable because trailers must have VINs.
  • Pursuant to a warrant, Monroe, La. police get GPS coordinates of a suspected drug dealer's cell phone while she is en route from Houston. They pull the car over, seize four pounds of meth and the cell phone, and arrest both the woman and her boyfriend. He is convicted, argues that the warrant was defective. Fifth Circuit (after a brief primer on search and seizure history, past the Tudors): Ah, but the warrant was for your girlfriend's cell phone, not yours, and you don't have standing to challenge a warrant for someone else's property.
  • Man is shot, killed outside a New Orleans grocery store. Eyewitness identifies a man as the shooter and testifies at trial, and the man is convicted. Yikes! The witness's statements are inconsistent; he lied on the stand about his previous convictions, including neglecting to mention one for lying on a gun application; and prosecutors failed to turn over evidence about that conviction. Fifth Circuit: No biggie. That evidence wasn't material, and the witness's evidence was corroborated by other evidence.
  • In a case involving a fraudulent student loan application, prosecutor tells the jury that "[a]ll of us in society pay for fraud" in the form of higher interest rates. Sixth Circuit: We prohibit "Golden Rule" arguments that invite jurors to place themselves in a victim's shoes, and here the prosecutor went a step further—suggesting the jurors were themselves among the victims. That was improper. But given the strength of the evidence and the defendant's failure to object at trial, the conviction nonetheless stands.
  • Former professor at University of Tennessee sues the school under Title VII for creating a hostile work environment and for retaliating against him. Key allegations: A parcel was sent to me and addressed to "Dr. Penis," and when I complained, the school retaliated against me. (Years later, a former student-employee admitted that he had mislabeled the parcel as a jape, a mere jape.) Sixth Circuit: No Title VII violations here.
  • The Randolph-Sheppard Act grants blind persons priority to operate vending facilities at certain government properties. And to the Seventh Circuit falls the task of adjudicating the claims of two rivals, each of whom wished to run the vending machines at two Wisconsin correctional facilities.
  • Knottiness abounds as the Seventh Circuit untangles whether a federal trial judge erred in making an Indiana defendant's 36-year prison sentence (for a 2015 kidnapping) consecutive to a 62-year prison sentence imposed by a state court (for a 2014 home invasion). Seventh Circuit: The trial judge did not err.
  • Following a lengthy class action suit about overheated dishwashers, the parties settle. Much of the settlement involves coupons for the purchase of new dishwashers. And under the Class Action Fairness Act—which views "coupon settlements" with a skeptical eye—the Ninth Circuit holds that the trial court erred in awarding class counsel $14.8 million in attorney's fees.
  • Taxi permits ("medallions") in San Francisco, Cal., cost a staggering $250,000, and recent medallion purchasers have found their medallions a poor investment due to competition from Uber, Lyft, and other ride-sharing services. To give the newer medallion purchasers a hand, San Francisco passes rules favoring those recent purchasers over older ones. (Newer purchasers, for example, get priority for lucrative airport pick-up rides.) Older purchasers sue. Ninth Circuit: The rules survive rational basis review. "Softening the economic fallout for [newer] medallion holders is a permissible state purpose and not a 'naked attempt to raise a fortress' around them to insulate them from competition."
  • Following a compliance inspection, the Bureau of Alcohol, Tobacco, Firearms, and Explosives finds that a firearms dealer in Oklahoma City often failed to keep proper records of its gun sales and sometimes failed to conduct background checks on buyers. License revoked. Dealer: But wait, the violations were not "willful." Tenth Circuit: The dealer knew of its legal obligations and was indifferent to them, so the violations were indeed willful.
  • "The civilly committed may not be punished merely because they are civilly committed." So begins an Eleventh Circuit opinion, which concludes that a civilly committed individual stated a claim under the Fourteenth Amendment. Among other things, the plaintiff alleged that guards denied him access to a bathroom during a 600-mile trip to a court hearing, with the result that he travelled 300 miles sitting in his own excrement.

You've heard about "judicial engagement," the idea that judges shouldn't put a thumb on the scale in favor of the government. But what does that actually mean in practice? IJ Judicial Engagement Fellow Adam Shelton recently concluded a series of essays on that exact question, focusing on each of IJ's pillars with posts on economic libertyfree speechprivate propertyeducational choice, and wrapping it all together, immunity and accountability. Read one or all of these to learn a bit more about how courts apply our constitutional protections to government abuses—and how that application sometimes takes our rights seriously, and sometimes treats them like roadblocks on the way to judicial abdication.

NEXT: The "Bait and Switch" on the Affordable Care Act's "Findings"

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  1. “You don’t have standing to challenge a warrant for someone else’s property”.

    Add it to the list of times and circumstances where the 4th Amendment doesn’t exist: near a border, when the police can make a dog do a trick, etc. Add whenever you are traveling with someone or borrow something from someone.

    1. Borrowing is an ambiguous area. If you have control over something you may have standing under the 4th A.

      Why should you have standing to challenge a violation of someone else’s rights?

      1. In this case because the violation of A’s rights led directly to a violation of B’s rights.

        But for the violation of A’s rights, they would have had no grounds to arrest B.

        1. Sort of begging the question there, aren’t you? How did the arrest violate B’s rights?

          1. If the arrest warrant was actually improper, then everything from the search and everything that it results in should be thrown out. That’s the standard fruit of the poisonous tree principle.

            Reading into it, I find the reasoning preposterous, and the court says as much in the section beginning on page 14. However, I wish the ruling had just said that he was wrong, not that he couldn’t even ask the question.

            1. Though the Supreme Court has rejected it, that’s certainly a defensible position. But it has nothing to do with whether the boyfriend’s rights were violated, which was the point MatthewSlyfield was making

          2. Isn’t an improper arrest without proper probable cause per say a violation of your rights?

      2. I don’t see a principled way to differentiate this from the cases that hold that you have a 4th Amendment right in a house you are staying in for weeks.

  2. A college in Boston—well, not in Boston, nearby (no, not Tufts)—considers a number of factors in deciding whom to admit to its incoming freshman classes, one of which is a “personal rating” on which Asian American applicants consistently score lower than white applicants. Evidence of illegal racial discrimination? First Circuit: Being Asian American is merely correlated with Harvard’s assigning a lower personal rating. Who can say which way the causation runs?

    Imagine if a federal court said this about black students. No no, they weren’t discriminated against, they were just bad! Hell, even when they are performing worse discrimination is alleged.

    Funny how courts can be openly racist in this manner.

    1. Bad on completely subjective and made up measures too!

    2. Delightful how the ruling cites “correlation does not imply causation!” as if this was some sort of mathematical rule. When discussing how preferences affect outcomes, then a correlation between preference and outcome sure as hell implies causation!

      This, from judges who (at least two of) believe in disparate impact for economic or police practices.

      1. I believe the correlation is that disfavored cultural attitudes (overwork, abandonment of all unessential activities, and sometimes complete neglect of social development) are often taught by Asian parents who wish their children to go to prestigious schools.

        Schools are allowed to score children on social development and other things. The fact that Asian students do poorly on this is unfortunate, but indicative of cultural problems, not school malfeasance.

        I’m not sure I buy the argument either, but the court did.

  3. “First Circuit: Being Asian American is merely correlated with Harvard’s assigning a lower personal rating. Who can say which way the causation runs?”
    Usually the left complains (Kamela Harris) about exactly such disparate impact policies.

    1. Systemic racism at Harvard? Say it ain’t so!

    2. You mean no longer do politicians want an actual cause and effect relationship before applying legal corrections, but may just assume so based on statistical outcomes analysis?

      Why isn’t that sensible rule being applied here?

  4. RE: “First Circuit: Being Asian American is merely correlated with Harvard’s assigning a lower personal rating. Who can say which way the causation runs?”

    So the hypothesis is: getting a low personal rating from Harvard causes the applicant to become Asian? “I was a normal guy, and then, Harvard gave me a row lating, and now, my eyes are sranty, my skin is yerrow, and I can’t say the retters ‘L’ and ‘R’!”

    https://www.youtube.com/watch?v=Rm7HQ-EzZEY&t=2m49s

  5. These cases prove the legal profession is totally out of control. Nothing is lower than a judge. Perhaps, a serial rapist and murderer of children has less morals. The lawyer profession must be stopped to save this country.

    1. Agree. The problem is they’re completely unaccountable.

  6. Re: Prof. Ennis…

    I fail to see how receiving a package addressed to “Dr. Penis” could be a Title IX violation. It is one instance (and maybe not even that objectively offensive). Certainly if an employee addressed the package, even as a joke, they could be properly disciplined. But I don’t think this qualifies as harassment or hostile environment, or is even close. (And the investigation never concluded the package was intentionally addressed like this. It wasn’t until years later a student-employee ‘fessed up.)

    1. If Dr Penis has the last name “van Lesbian,” you’ve got the makings of an epic updated shaggy dog story. [For the uninformed; a quick Google will explain the historical/hysterical reference.]

  7. In Pennsylvania, the use of standing irks me. Who, in this situation, WOULD have standing? When standing is used to essentially make a law non-contestable or contestable only by one side of the issue, that’s when we need to review this doctrine.

    1. I did a comparative law workshop one time and one of the subjects was the concept of “standing” in other legal systems. Almost every other international jurisdiction has a completely different concept of it. Even in other Anglo/Common Law judicial systems, the idea of a “case or controversy” is usually just there is a substantial dispute over a question. Not this idea that the person bringing the argument has to have a direct linkage to the controversy.

      I’ve never tried to gain an academic understanding of the issue, but I have read others who merely suggest that our federal court’s use of “standing” is a way of just avoiding other questions. Just from my experience seems like a reasonable take.

      1. Isn’t the entire purpose of “standing” to reduce the caseload on the judges? I don’t think I’ve ever heard of a different one.

        If not, then what is the purpose?

        1. I’ve never found any of Scalia’s arguments that standing is a constitutional requirement sensible. Not that it is what “case or controversy” really means, not that it’s a separation of powers issue, and not that it would uncontrollably flood courts (as the many states that allow taxpayer standing amply demonstrate).

          1. Yeah, I’m pretty sure that if judging a law challenged by someone only minorly impacted by a law turned the courts into a “Super-Legislature”, then judging a law challenged by someone strongly impacted would do the same.

            That seems like a pretty weak argument.

            But at least now I’ve heard a different argument, however implausible it is.

  8. In a 55-page opinion filed only four days after briefing finished, the Third Circuit finds that none of the plaintiffs before it has standing to challenge Pennsylvania’s procedures for late-received mail ballots.

    Isn’t having to live under the bossy rulership of the wrong people sufficient for standing? By definition the court cannot tell if it does not proceed.

  9. If one follows the logic of the 5th Circuit opinion in Beaudian, all police need do to insulate themselves from 4th Amendment scrutiny is to designate a “warrant officer” as designated person to be searched on all warrants.

    This would ensure the person whose property is actually searched and seized would never be the person named in the warrant, and hence would never have “4th Amendment standing” to challenge it. The police could then proceed as if the 4th Amendment didn’t exist.

    If actually being searched and having ones property seized doesn’t give one standing to challenge the search and seizure under the 4th Amendmenr, I don’t know what does.

    1. That’s a bit of a stretch. But police could get a warrant on someone and then coerce that person sit next to you and touch you and then swoop in and search you both.

    2. What property of the boyfriend’s was searched or seized under the warrant, in your view?

  10. “First Circuit: Being Asian American is merely correlated with Harvard’s assigning a lower personal rating. Who can say which way the causation runs?”

    Because disparate impact only matters When We Decide It Matters.

  11. Why do courts think economic theory stopped in the 1930s?

  12. Taxi permits (“medallions”) in San Francisco, Cal., cost a staggering $250,000, and recent medallion purchasers have found their medallions a poor investment due to competition from Uber, Lyft, and other ride-sharing services. To give the newer medallion purchasers a hand, San Francisco passes rules favoring those recent purchasers over older ones. (Newer purchasers, for example, get priority for lucrative airport pick-up rides.) Older purchasers sue. Ninth Circuit: The rules survive rational basis review. “Softening the economic fallout for [newer] medallion holders is a permissible state purpose and not a ‘naked attempt to raise a fortress’ around them to insulate them from competition.”

    My comments which regards to the above paragraph – Uber, Lyft and other ride-sharing services are highly competitive to the new taxi companies which have online taxi dispatch system in San Francisco??

    Was the government helping to the new taxi companies?

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