Short Circuit: A Roundup of Recent Federal Court Decisions

Aggregate expenditures, maximum allotments, and Moroccan rugs.

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

Friends, today the Supreme Court will consider whether to grant cert to a case of towering importance and keen historical interest. We refer of course to Courtney v. Danner, which will give the Court the chance to breathe some life back into the Fourteenth Amendment's long-neglected Privileges or Immunities Clause. George Will has the story over at The Washington Post.

This week, the folks over at the Undisclosed podcast, who are digging into a cold case investigation that quite possibly put an innocent man in prison, were kind enough to have IJ's Anya Bidwell as well as your own humble editor on their show to talk about our show.

  • After an ESPN article alleges that the head of a nonprofit meant to assist veterans is using the group's money for, for instance, a plane ticket for her son and an advance of $22k to buy Moroccan rugs, the IRS takes an interest, even sending an agent to the woman's child-custody hearing the next month to learn more about her finances. She's prosecuted, but the jury can't reach a verdict thanks to one holdout juror. The jury returns deadlocked three separate times, and each time the judge sends them back with instructions to keep trying. His instructions are modeled after, but not identical to, the standard instructions. A little more than an hour after the third somewhat ad-libbed instruction, the jury reaches a verdict—guilty on all counts. D.C. Circuit: Those instructions likely coerced the lone holdout. New trial.
  • When the Shawnee Tribe sued to challenge the methodology used by the Treasury Secretary to distribute coronavirus relief funds to state and tribal governments, the district court dismissed on the ground that the distribution of funds was a matter of agency discretion and thus not reviewable in court. D.C. Circuit: Nope. The CARES Act says that funds must be distributed "based on increased expenditures . . . relative to aggregate expenditures," and the district court can review the Secretary's methodology under that standard.
  • Back in 2017, CNN sued under the Freedom of Information Act to access memos written by former FBI Director James Comey following meetings with President Trump. Following a series of public disclosures and court rulings, the sole remaining issue in the case is whether FBI can continue to redact forty-some words from a declaration that it filed in district court in order to justify redactions from the Comey memos. D.C. Circuit: The declaration was filed in court to influence a judicial decision and, thus, is a judicial record. There is a "strong presumption" in favor of disclosure of judicial records, but that presumption is not absolute. Here, we're not convinced the public has much interest in the redacted parts of the declaration (as distinct from the information that has already been disclosed) and we see serious national security concerns with ordering disclosure. The district court can weigh all that on remand.
  • Ramapo, N.Y. school district contains 29,279 (mostly Jewish) students attending private schools and 8,843 (mostly black and Latino) students attending public schools. Claim: The district's at-large election system has resulted in a school board that systematically favors the interests of the private schools, and thus violates Section 2 of the Voting Rights Act by denying or abridging the right to vote on the basis of race. Second Circuit: Plaintiffs are not required to prove racial animus, and have prevailed by showing that minorities have less opportunity to participate in the political process. Given the near-perfect correlation between race and school-type, we agree with the district court that the election results here are caused by race and not policy preferences.
  • Allegations: Prisoner in Raleigh, N.C. prison twice head-butts guards. Each time, the guards fully subdue him and then gratuitously pepper spray him (the first time) and muscle him into a supply closet and beat him (the second time). Excessive force? District court: No reasonable jury could find that the officers acted in anything but good faith. Case dismissed. Fourth Circuit: Case un-dismissed; a jury should decide whether the officers acted in good faith or maliciously. Also, no qualified immunity. (Postscript: shout-out to the UVA law students who briefed and argued the prisoner's appeal.)
  • In November, Toledo, Ohio-area health officials closed every school in the county while letting gyms, tanning salons, office buildings, and the Hollywood Casino stay open. Parochial schools sue. A Free Exercise Clause violation? District court: Probably no; preliminary injunction denied. Sixth Circuit: Probably yes; injunction pending appeal granted.
  • Indiana law (as interpreted by its Supreme Court) requires Indiana residents to register as sex offenders for certain offenses committed after July 1, 2006, but not if those offenses were committed prior to that date. But new arrivals to Indiana (even those who previously were Hoosiers before 2006) who had to register as a sex offender in another state do have to register in Indiana, even if the offense was committed before July 1, 2006. According to the Seventh Circuit this implicates the right to travel, protected by the Privileges or (yes, "or") Immunities Clause of the Fourteenth Amendment, and can't survive strict scrutiny. Dissent: Right to travel, smavel. It's rational basis all the way down.
  • Man flips New Hope, Minn. cop the bird as he drives past. She pulls him over; he repeatedly declines to hand over his license and insurance. As the situation escalates (with much yelling and cussing from both), she orders him out of the car, handcuffs him, and he finds himself in a seven-minute "timeout" in her squad car. She eventually cites him and sends him on his way. First or Fourth Amendment violation? Eighth Circuit: Might could be. Qualified immunity wasn't appropriate for the seizure and retaliation claims. Dissent: The man's offensive conduct isn't protected speech.
  • From the 1960s through the 1990s, multiple school districts in Arkansas entered into federal consent decrees to desegregate public schools. In 2017, Arkansas passed school choice legislation that allows students to transfer to schools in other school districts, which is not prohibited by the consent decrees. The school districts head to court, seeking modification of the decrees. Eighth Circuit: Granted; these transfers weren't permitted under state law at the time of the consent decrees, but the decrees totally would have prohibited them had they been allowed at the time. Dissent: That is not how modifying consent decrees works.
  • Des Moines, Iowa police officers, upon seeing a man filming illegally parked cars next to their police station, surround him for a friendly chat. When he refuses to leave, they tell him he's under arrest, force him against a truck, pat him down, and seize his camera and phone before telling him he is free to go. He sues, alleging violations of the First and Fourth Amendments. Eighth Circuit: Qualified immunity for the initial stop; cars had been vandalized in the area, and someone recording the police had recently killed two officers. No qualified immunity for the arrest, though.
  • Arkansas law prohibits abortions when the fetus is more than 18 weeks' gestation or when the provider knows that the woman is seeking the abortion solely on the basis of a belief of Down syndrome (both subject to exceptions for a medical emergency or if the pregnancy is a result of rape or incest). Precedent says gov't can't prohibit pre-viability abortions, so these bans are unconstitutional, says an uneasy Eighth Circuit, with two-thirds of the panel writing separately to urge the high court to revisit the precedent. Judge Shepherd: "[B]ecause we must apply the ill-fitting and unworkable viability standard to an act aimed at preventing eugenics-based abortions unless and until the Supreme Court dictates otherwise, I concur."
  • In October 2019, President Trump issued a proclamation banning immigrants from entering the country unless they had or could get health insurance—lest they become a public charge. Ninth Circuit (May 2020): No need to stay a preliminary nationwide injunction against the rule; the "normal" appeals process shall play out. Ninth Circuit (this week): This proclamation was within the President's power to make, universal injunction vacated. And as no injunction should have been granted there is no need to address whether the nationwide scope was appropriate.
  • In response to COVID-19, Congress provided for emergency allotments to Supplemental Nutrition Assistance Program (SNAP) participants to help address the temporary food needs. The problem? The statute is ambiguous as to whether it allows for additional funds to bring everyone up to the usual maximum allotment or whether allotments can now exceed the usual maximum. Ninth Circuit (over a dissent): It is ambiguous, but responses to previous crises suggest that you can still only get up to the maximum allotment.

Houston is known nationwide as a zoning-free city. And its residents have voted time and again to keep it that way. But Houston's overzealous central planners are persistent. To override the wishes of their citizens and accomplish their zoning objectives, they have resorted to using so-called "historic designations" that look, act, and feel like zoning. But is zoning by another name not zoning? And does the Texas Constitution still provide meaningful protections for property rights when municipalities have other goals? The Texas Supreme Court considered both of these questions this week in the case of Powell v. Houston. Click here to read an IJ amicus brief that reminds the Texas Supreme Court that the Texas Constitution has historically provided vast protections for property rights that are rooted in natural law.

NEXT: Yes, Congress May Impeach and Remove President Trump for Inciting Lawless Behavior at the Capitol

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  1. “Given the near-perfect correlation between race and school-type, we agree with the district court that the election results here are caused by race and not policy preferences.”

    Is there some reasoning to justify this? Because you’d assume that school type correlates pretty well with policy preferences.

    1. You mean if all of the members of one race vote one way, and all of the members of another race vote another way, the vote doesn’t count? Bizarre.

      And it sounds like religion may have been the motivating factor.

      1. It’s fine of course, if low functioning, criminal blacks blocvote for Democrats, of course.

      2. It sounds to me like sending your kids to private schools was the motivating factor.

        The court assumes that the Jews voted to screw over the blacks because they were black; They looked around for a way to hurt them, and reluctantly voted for people favorable to their own policy preferences in order to hurt the blacks.

        Which they never would have done if the rest of the residents of the area were white, of course.

        God, that’s stupid.

        1. No, that’s stupid squared.

    2. The majority was relying on the same idiotic reasoning used in Washington v. Seattle School District, that if it’s harder for a minority to get what he wants, that’s unconstitutional.

    3. I found this quote more than a little disturbing: “We hold that Section 2 does not require racial causation, though the existence or absence of such causation is a relevant factor for consideration”

      These idiots just openly declared to find that one decided based on racial bias, does not require that the basis for the decision be racial bias.

      Under this, as far as I can tell, there are no circumstances that two groups formed from different racial compositions could not be racially discriminatory.

  2. “Ninth Circuit (this week): This proclamation was within the President’s power to make, universal injunction vacated. And as no injunction should have been granted there is no need to address whether the nationwide scope was appropriate.”

    Who are these people and what have they done with the Ninth Circuit judges “

    1. No need to praise them.

      October 2019 proclamation, vacation of injunction 15 months later and after the election. So, soon to be reversed with no actual immigrants affected.

      Trump wins, different result.

  3. The ferry case is interesting. It is really a question of state granted monopoly of what are, essentially, utilities.

    There is a small amount of traffic on a route only accessible by boat. The ranch, who has economic income outside of the ferry business it wants to enter, wants to compete with the existing ferry. What happens if (when?) the current ferry is no longer a viable commercial business? All commercial traffic now relies upon the ranch, which, being unregulated, can raise prices at will after eliminating the regulated competition, or simply choose to stop service altogether.

    States have, traditionally, been given the right to regulate commercial ferry’s for intrastate travel. Should that be upended, and anyone be allowed navigable commercial access for intrastate commercial ferry purposes, I foresee potential chaos as many ferry’s are driven out of business by entities that would support their ferry traffic with commercial income via other means, essentially subsidizing their ferry costs.

    As those regulated ferry’s close it is likely there would be a lack of steady transport to traditionally underserved areas (those limited to access via ferry).

    Essentially, ferries are, almost entirely, public goods and should be treated and regulated as such. The allowing of unregulated competition with public goods will end poorly, and I predict with many communities losing access to ferries for various periods of time, instead of having steady service as they do now.

    1. Good luck trying to reason with reflexively anti-government cranks.

    2. Local traffic had actually been sustaining multiple ferry companies until the state intervened and imposed the present monopoly.

      1. The current incumbent isn’t even technically a ferry, it’s a boat tour.

      2. I must admit I did not read the history of the case, so much as a summary.

        For this ferry service it seems pretty clear the state should not have granted a monopoly, and that the ferry should be allowed (particularly as it isn’t actually a ferry!)

        I don’t think that SCOTUS should take away the states right to grant all monopolies though, so I’m unsure what kind of narrowly tailored ruling would be required. I can foresee cases where a single ferry service needed to be given a monopoly to be enticed to start service to a previously unserved location, with that monopoly expiring after X number of years, for example.

        1. particularly as the existing service* isn’t actually a ferry

        2. Don’t need to grant a monopoly when the service is expected to be so low that a competitor would bankrupt both, because a competitor would only jump in if they thought they had a better business model which would raise more money. Otherwise, what’s the point? The newcomer drive out a barely profitable company, and leave the newcomer with a barely profitable business.

          People who think monopolies and predatory pricing are practical are confused. On the one hand, business people are so greedy they will do anything to gain the upper hand. On the other hand, they are so stupid and dangerous that they ignore profits to destroy other businesses, apparently out of sheer psychopathy. You can’t have it both ways.

          1. So grant a monopoly rather than let one form naturally by competition for the best?

            I don’t see the advantage, except for politicians waggling fingers behind their backs.

          2. I’ve got a thought but it requires specific circumstances and I can’t guarantee it’ll work.

            For the monopoly, all equipment/property/etc are owned by a the monopoly trust. Every X years, the control of the trust is auctioned off for the next X years. Employees et al are not part of the trust. Ensure there’s certain performance requirements (quality of service, maintenance, etc) in the contract that, if not maintained, result in termination of contract.

            There’s probably a few other things required but I think that might work. I’m basing this on how one town started contracting out “essential services” such as trash collection.

    3. You don’t know much about economics. Monopolies are almost always created by governments, whether directly (as Brett notes below in this case) or by copyrights and patents. Predatory pricing is almost always a myth, because the price cuts necessary to drive competitors out of business cause such high losses that the subsequent price hikes necessary to make up for the losses open up excellent opportunities for new competitors.

      Try your own little experiment with pencil and paper. Unless you lie to yourself, you will find it impossible to come up with any even halfway realistic hypotheticals which sustain monopolies through predatory pricing.

      1. Errr, as Brett noted earlier at 5:05 pm.

      2. Predatory pricing occurs when there are no competitors. The general tack taken can be seen with Amazon.

        They will take the design of products for sale in their store, create an Amazon Basics version, sell it for less than the original, and then raise prices after the original is gone.

        1. Try the pen and paper experiment I suggested. You cannot make your example work.

          Amazon only succeeds with its house brand where it has identified and come to market with better products, presumably using sales figures and search figures unavailable to others. All that shows is markets becoming more efficient. It does not show predatory pricing nor monopolies.

        2. Can you provide a documented example where the price was raised above the original after the original was gone?

      3. Monopolies without government protection actually ARE feasible where network effects produce huge advantages to the largest firm.

        But ferries are just about the least plausible example of that.

        1. This case isn’t even about a ferry monopoly. It’s someone who wants to start a real ferry service to/from a town not accessible by road vs a boat tour.

        2. “Monopolies without government protection actually ARE feasible where network effects produce huge advantages to the largest firm.”

          Network effects don’t necessarily benefit the largest competitor, they often lock in the first to market as the dominant player.

      1. Lol the modern court case is arguing that the one thing all US courts in all centuries agreed upon of the 14th Amendment, the right to use navigable waters, is being denied US citizens by this particular ferry monopoly law.

  4. This sentence from the dissent in the 8th Circuit First Amendment retaliation case is a doozy:

    Further, even if Garcia has shown the violation of a constitutional right, it was not clearly established on February 1, 2016, that driving through a school zone during school hours and in the presence of a crossing guard, leaning his entire head and arm out the window of his vehicle to raise his middle finger, all following a confrontation about Garcia’s rate of speed in the same location earlier that day, was protected by the First Amendment.

    Uh, yeah, it was. Just because the other cases didn’t involve identical facts along seventeen different measures doesn’t mean it wasn’t clearly established.

    1. Don’t forget, it was a Monday. Any relevant precedence would have also had to have occurred on a Monday. Anything on a Tuesday is sufficiently different that it wouldn’t qualify.

    2. Agreed. I think a lot of criticisms of qualified immunity are misplaced, but Judge Shepherd certainly seems to be trying to prove the caricatures correct.

  5. Given the near-perfect correlation between race and school-type, we agree with the district court that the election results here are caused by race and not policy preferences.

    Are they sure it wasn’t cause by religion?

    Eighth Circuit: ….. Dissent: The man’s offensive conduct isn’t protected speech.

    Dear Judge Shepherd, Fuck You.

  6. Aborting a pregnancy because of Down syndrome is not (repeat: NOT) eugenic or “eugenics-based”. Anyone who thinks it is, either does not know what eugenics is, or, does not know a certain key fact about Down syndrome.

    1. Would you please enlighten us as to what this “certain key fact” is that you mention?

      Eugenics is a set of beliefs and practices that aim to improve the genetic quality of a human population, historically by excluding people and groups judged to be inferior or promoting those judged to be superior.

    2. “Eugenics is a set of beliefs and practices that aim to improve the genetic quality of a human population, historically by excluding people and groups judged to be inferior or promoting those judged to be superior.”
      “Eugenics – the science of improving a human population by controlled breeding to increase the occurrence of desirable heritable characteristics.”

      Would you please explain in what way you believe this to not match the usual definitions? I’m curious as to how you define the word that you find it doesn’t qualify to Downs children.

      1. Downs is a chromosomal number disorder. That’s technically genetic, but not a gene. (Well, there is a mutational form of it, too, but relatively rare.) There’s only a 35% or so chance of a Downs sufferer passing it on to their children.

        You could certainly advocate aborting Downs syndrome babies from a eugenics stand point, but I don’t think that’s the usual motivation.

        1. Wait, I thought all people with Downs Syndrome, without exception, are sterile. Is this no longer the case?

      2. The eugenics movement advocated controls over immigration and reproduction to improve the country’s genetic stock. It did apply to Down’s sufferers, but although eugenics proponents sometimes wrote about the use of abortion the programs implemented focused on forced sterilization.

  7. That Second Circuit case goes to SCOTUS, I bet. Or the district will ask for en banc review. I think the district court erred in allowing Barreto’s testimony, and the methodology (BISC). If I am following this decision correctly, I don’t think the second Gingles precondition was met. I also think the BISC methodology allowed by the district court was not correct, resulting in wrongly considering
    Daubert factors against each other.

    1. I think they’ve got a better case under the 14th amendment equal protection clause. There’s definitely a problem here, but I don’t think the solution will come from changing the voting system.

    2. It also occurs to me….this case is a great reason for School Choice.

      1. Totally agree.

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