Short Circuit: A Roundup of Recent Federal Court Decisions

Military leave, vicious campaigning, and a floral print foofaraw.

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

In 2020, the Institute for Justice won a landmark Supreme Court victory in Espinoza v. Montana Department of Revenue, in which the High Court held that states cannot bar families participating in generally available student-aid programs from selecting religiously affiliated schools for their children. Despite that ruling, the 1st U.S. Circuit Court of Appeals, in October 2020, upheld a religious exclusion in Maine's tuition assistance program for high school students. Now IJ is asking the Supreme Court to take the case.

  • Connecticut enacts a law limiting public access to court records in cases transferred from juvenile court to regular criminal court. Newspaper sues, alleging a First Amendment violation. Second Circuit: They're right! "A more narrowly tailored approach – with a presumption of openness but the availability of confidentiality upon a showing of necessity – would better balance the public's right of access against the dangers of stigmatizing juveniles by providing fuller protection when necessary."
  • After a Connecticut prison guard is found liable for $300k in damages to an inmate whose beating he facilitated, the state graciously picks up the tab. Minus $142k for the cost of the inmate's incarceration. Also, minus $65k for the cost of the inmate's legal representation. Also . . . Second Circuit: Let's stop you right there. Except for some money the inmate has already spent and some child support that was validly withheld, the guard is still on the hook for $270k.
  • "Am I being detained?" "You're not detained." "Am I free to go?" "No." Fourth Circuit: Not how that works.
  • Although appellate courts hardly ever reassign cases to a different judge on remand, the Fifth Circuit brings us the rare doozy. Among other things, the district court judge told plaintiff's counsel, "I will get credit for closing two cases when I crush you"; participated in the deposition of the plaintiff; and prohibited the plaintiff from conducting discovery beyond one two-hour deposition after summary judgment briefing.
  • Pretrial detainee seeks release from custody given the pandemic. Fifth Circuit (splitting from the Sixth): Habeas law is available to review the legal basis for the imprisonment, not to let someone out sooner because of the possibility of disease.
  • Tarrant County, Tex. family court judge is fired in response to her husband's vicious campaigning against elected family-court judges. Fifth Circuit: Her position was a policymaking and confidential role where trust and loyalty are key. So even though this might otherwise be First Amendment protected activity, it isn't here.
  • Federal law provided much tougher sentences for crack cocaine than powder cocaine offenses for more than twenty years. But in 2010, Congress started to fix this disparity with the Fair Sentencing Act, which decreased the penalties for crack, followed by the First Step Act in 2018, making the changes retroactive. What about people convicted of selling both crack and powder? They get sentencing relief, too, says the Fifth Circuit. Though statutory eligibility doesn't extend beyond offenses involving crack, it isn't limited to offenses involving only crack.
  • In the middle of the night, Moraine, Ohio police officers discover a man asleep in the driver's seat with his hand on a gun. They wake him and order him to show his hands, which he does at least initially. Police say they saw him reach back for his gun, and they open fire and kill the man. An expert says that he was shot with his hand up in the air, not on the gun. Unreasonable use of deadly force? Sixth Circuit: Nope. Dissent: The mere presence of a gun in an open-carry state while in a locked car isn't an immediate threat.
  • With another in the wave of COVID-related compassionate release request cases, the Sixth Circuit says that district courts can't deny such a request solely on the basis that the inmate remains a danger to the community.
  • After being busted with over 184k images of child pornography, this criminal defendant downloaded another 10k images because (he later explained) he believed he "did nothing wrong" and "got bored." The probation officer nonetheless recommended a below-guidelines sentence because he believed the guidelines' enhancement for use of a computer was outdated. Seventh Circuit: The district court was not required to address the probation officer's recommendation, and the district court had good reason to impose a longer sentence given the need to deter further misconduct.
  • In accordance with longstanding national tradition, a litigant filed suit in federal court challenging the erection of a nativity scene on government property as a violation of the Establishment Clause. Seventh Circuit: The district court found a constitutional violation under the so-called Lemon test, but we hold that Lemon does not survive more recent Supreme Court decisions. The nativity scene survives constitutional challenge because it fits within a long national tradition of using nativity scenes as part of broader holiday displays.
  • United Airlines provides paid leave for jury duty and sick leave, but provides only unpaid leave for military reservists on short-term military duty. Seventh Circuit: USERRA entitles absent military personnel to the same "rights and benefits" as other employees, including "wages or salary for work performed," and that includes the right to paid leave. United says paid leave must be excluded because it involves payment for work not performed, but the statute's reference to "work performed" is merely illustrative. Still, on remand, the court will have to determine whether military leave is comparable to jury duty or sick leave.
  • A sentence of 30 months for being a felon in possession of one (1) bullet "may seem, on its surface, disproportionate," says the Eighth Circuit, but don't worry—it is, in fact, totally cool.
  • Asylum applicant: You can't deny my application on the grounds that I committed a crime because all the charges against me have been dropped. DHS: We have no idea if that's true. Eighth Circuit: Shouldn't you guys, like, try to find out?
  • In which the Board of Immigration Appeals finds that attempted gang rape, death threats, and physical assaults of family members do not constitute a sufficient "amount of mistreatment" for an asylum application, and the Ninth Circuit says that's actually plenty, thanks.
  • How much trouble can one floral-print fabric design cause? A lot, as shown by this Ninth Circuit panel's near-60 pages of disagreement over the Copyright Act, the relationship between final judgments and pre-trial orders, and the meaning of the word "any."
  • Ninth Circuit: A previously deported alien does not commit "illegal reentry" simply by reentering the country when he's not allowed to. (Judge Bybee, dissenting: He commits illegal reentry when he reenters illegally.)
  • Civil procedure buffs know that if you include too few facts in your complaint, you might be dismissed under Twombly/Iqbal, but what if you include too many? Eleventh Circuit: You'll be dismissed under our case law concerning "shotgun pleading." Concurrence: And here's how to avoid that.

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  1. After a Connecticut prison guard is found liable for $300k in damages to an inmate whose beating he facilitated, the state graciously picks up the tab. Minus $142k for the cost of the inmate’s incarceration. Also, minus $65k for the cost of the inmate’s legal representation. Also . . . Second Circuit: Let’s stop you right there. Except for some money the inmate has already spent and some child support that was validly withheld, the guard is still on the hook for $270k.

    I did a Twitter thread on this case this morning. Just shame on the state of Connecticut. Shame on the state for facilitating the assault, which the inmate literally warned them would happen if they put him in the 2 person cell and then unhooked the handcuffs after locking the cell. And double shame on the state for “charging” litigants for their imprisonment and public defenders’ hours. And triple shame on the state for trying to take away a big chunk of this guy’s judgment and thereby make any deterrent effect more difficult.

    Just awful all around. And bear in mind, this is Connecticut, a rich blue state that can well afford to treat its prisoners humanely.

    1. “…this is Connecticut, a rich blue state that can well afford to treat its prisoners humanely.”

      lol. You think that has any to do with, or not do with, what happened.

      1. Yeah, Connecticut needs that money for its overpaid pensioners.

        Liberals are just disgusting people. Look at the ridiculous bill the Democraps rammed through.

      2. I’m saying it’s demonstrative of how bad we are. If this can happen in a rich state, it can happen anywhere in America.

        1. It’s more likely to happen in a “blue rich” state, because Democrats are amoral parasites. They don’t have any feeling beyond their own power.

    2. I agree, but beyond some abstract concept of “we think it is a good idea”, I don’t see how the court legally did this.

      OK, maybe the State of Connecticut ought to have actually sued him for it rather than just taking it, but if cost of incarceration and public defense are legitimate costs which the State can recover from prisoners, how can he legally protect this money from CT’s claims?

      I understand the court’s rationale — I just don’t see how it’s “legal.”

      And the other thing not being mentioned here is restitution to his victim(s) — 30 years means he seriously harmed someone…

      Oh, and while Connecticut still is very Blue, it ain’t anywhere near as rich as it used to be. If it doesn’t get a Biden Bailout, it’s going to be in some serious trouble…

      1. I agree we have to assume that Connecticut has the power to charge these big charges (almost $200,000!) to inmates for incarceration and defense.

        And I agree this guy is a serious criminal.

        But:

        1. I don’t care how serious a criminal you are, the state still has to treat you in a non-monstrous way in prison. And when the guy specifically says “you put me in a cell with another person, and don’t unhandcuff me until the cell is locked and I can’t defend myself, and they are going to beat the dickens out of me”, and the state does it and it happens exactly as the inmate predicted, the state screwed up. It just did. This is basic.

        2. The federal courts have the power to determine when a Section 1983 judgment is satisfied and when it isn’t.

        Heck, the state courts have this power too. Let’s say someone sues you in state court and you steal some money to satisfy the judgment. I think the state courts have the right to say “well, we’re not going to credit that money because it was stolen. You still owe the plaintiff the judgment.”. Why? For the obvious reason that it it has deterrent effects, whereas saying “if you can steal this money, we’re going to count it as paid off” creates bad incentives.

        So why can’t a federal court do the same thing? “We decide how a 1983 judgment is satisfied, and while it may be satisfied in a number of ways, it can’t be satisfied in a way that simply uses giant cost awards against the prisoner to destroy the deterrent effect of the damages.” Seems fine to me.

        1. I should add something else. There’s a BS component to restitution awards to the victims in the criminal system. A lot of those restitution awards never get paid. When a perpetrator is not judgment proof, the victim can just file a civil suit and get an actual enforceable judgment (and the criminal conviction will have res judicata effect!).

          Given that criminal restitution awards are mostly phony forms of symbolic punishment, I certainly don’t think the state should suddenly start collecting restitution when a prisoner wins a civil rights suit against the state for deliberately causing a vicious assault. Again, that’s just completely contrary to the purpose of civil rights suits.

        2. “And when the guy specifically says “you put me in a cell with another person, and don’t unhandcuff me until the cell is locked and I can’t defend myself, and they are going to beat the dickens out of me”, and the state does it and it happens exactly as the inmate predicted, the state screwed up. It just did. This is basic.”

          One would hope that it requires more than just this for the state to be deliberately indifferent. I’m perfectly willing to assume that the state was deliberately indifferent, mind you, but the set of facts in your comment should not be enough to establish that.

          1. I think that’s basically enough.

            But if you want more, consider that the prison has a very weird way of handling handcuffs. Rather than just taking the handcuffs off when they enter the cell, what the prison did instead was put the handcuffed prisoner in the cell, and then lock it. Then the prisoner would turn his back to the officers, who would undo the handcuffs. Meanwhile the other prisoner in the cell was not handcuffed and the cuffed prisoner was completely defenseless. Plus, because the cell was locked, there was no way to easily open the cell back up if an assault started to take place.

            Come on, this case was a no brainer.

            1. “But if you want more, ”

              As I said, I’m happy to lazily assume that the state screwed up. That’s what they do. But the fact pattern in your comment: Inmate says bad thing will happen if guard does X, guard does X, bad thing happens… Shouldn’t be enough to prove that.

            2. If they didn’t want him beaten it would have been easy enough: Just have the other inmate come over to the door, too, and stick his arm through, to be restrained until the cuffs were off. I suspect they wanted this guy beaten, for some reason.

              Personally, though, I find the whole practice of locking people known to be violent together in the same room a bit dubious quite aside from cuffing procedures.

        3. I’m not disputing any of this — just *how* did they legally reach their conclusion?

          Other than “it’s a good idea” (and I don’t disagree), how do they legally justify this???

      2. >if cost of incarceration and public defense are legitimate costs which the State can recover from prisoners

        https://cga.ct.gov/2018/rpt/pdf/2018-R-0269.pdf

        The CT law says they have a claim against the convict’s property, but only property that was acquired prior to release, and it requires a formal claim. It’s not automatic.

        Once there’s a claim, a lien can be filed against future lottery winnings or lawsuit judgments.

        So, I think the legal basis is that they don’t have a claim against the judgment itself. They only have a claim against his pre-existing property that can be enforced against the judgment.

        1. Interestingly, the Court decided this as a matter of federal, not state law. (I think that’s right, by the way, because it creates a more widely-applicable rule that could be applied to various state schemes to undermine the deterrent effect of 1983 suits.)

    3. Never been a fan of all this “charge the prisoner” stuff, at least for the basic framework of putting them in jail and keeping them there.

      It’s bigger than prison, though. There are many fees just to get government to process stuff as it should be doing all along, when that should similarly be covered since The People think it a great idea for government to stick its nose in.

      1. Yes. There’s a lot of ripping off of prisoners. The charges for phone calls are another notorious example.

      2. “Never been a fan of all this “charge the prisoner” stuff, at least for the basic framework of putting them in jail and keeping them there.”

        Then the guy escapes, and they charge him even more because they have to go look for him.

  2. THE COURT: Systems don’t do anything. They hire large staffs and go around and make life difficult for the actual institutions themselves. It’s in their charter; annoy their workers.

    Whoa. The only thing I can’t glean from this whole thing is why? What caused the original Judge to have that big of a bug up his butt? I mean… damn.

    1. He’s been on the bench 35 years. It’s pretty damned weird to see this behavior from such an experienced district judge.

      Look, maybe the claim just didn’t pass his BS detector. The problem is, you still have to follow the law.

      1. 35 years on bench + at least age 35 when he was appointed means he has to be at least 70 years old now.

        It’s sad but people’s facilities do sometimes tend to decline at this age. Not always, but it very much does happen, and you can get some truly out-of-character behavior as a result.

    2. “THE COURT: Systems don’t do anything. They hire large staffs and go around and make life difficult for the actual institutions themselves. It’s in their charter; annoy their workers.”

      He’s not wrong. He’s referring to the large University Systems that sit above the Universities themselves. They had no role in this event, unless they set some sort of policy that somehow encouraged it.

      I seriously doubt System policy is to make hiring decisions contingent upon references from hostile prior employers.

      1. But the way he made the ruling- “pick 2 defendants you want to go up against”- is just demented.

        There’s a way to dismiss a claim against a corporate entity not responsible for its subsidiary’s conduct. This isn’t it.

      2. This doesn’t look like a department that discriminates against women.

        https://www.shsu.edu/academics/psychology-and-philosophy/psychology/faculty.html

        Or you could argue otherwise with 8 men and 4 women granted tenure.

  3. “With another in the wave of COVID-related compassionate release request cases, the Sixth Circuit says that district courts can’t deny such a request solely on the basis that the inmate remains a danger to the community.”

    Seriously? Here’s hoping the released MS13 members live next door to these judges.

  4. Fourth Circuit gets it right!

    Sixth Circuit: Presence of a weapon is punishable by immediate execution! Please tell me this gets appealed to SCOTUS.

    Ninth Circuit: A previously deported alien does not commit “illegal reentry” simply by reentering the country when he’s not allowed to.
    So “illegal” does not mean “against the law”.

    1. I gather the 9th circuit was distinguishing between the fact of entry being illegal, and the manner of entry being illegal.

      But that’s a pretty stupid distinction to base the ruling on. Basically just a pretext to let the guy off.

      1. Or “illegal entry” is poorly named and has little to do with entering illegally.

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