Short Circuit: A Roundup of Recent Federal Court Decisions

Wine deliveries, secular wedding celebrants, and Italian torture.

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

Friends, qualified immunity is not our favorite doctrine; in fact, it's among our least favorite. (We might even go so far as to say it's worse than Rooker-Feldman, though certainly reasonable minds might quibble.) Which is why IJ has drafted model legislation that legislators can use to reform (or nuke) the doctrine. And we're pleased to report that a bill that hews closely to our model bill passed New Mexico's House of Representatives this week. Among other highlights, the bill gives victims a remedy when gov't employees violate their constitutional rights and requires gov't agencies (or their insurers) to cover the cost of litigation and any judgments, rather than imposing personal liability on gov't employees. Click here to learn more.

New on the Short Circuit podcast: Thanks to special guest Ed Walters of Georgetown Law we finally live up to the 1980s-movie-sense of our name and talk robot law.

  • The Horse Protection Act bans intentionally injuring horses' limbs so they have fancy gaits in shows and exhibitions. But the law is enforced before administrative law judges who, under a recent Supreme Court case, haven't been strictly speaking constitutionally appointed. The feds now admit that, in a prosecution that began in 2017, the ALJs it used were not-okay (but only kind of not-okay). Do they get a re-do in front of new ALJs? D.C. Circuit: Yes. Petitioners didn't raise the constitutional issue they now seek to press below, and so it is waived. Concurrence: You don't have to preserve constitutional issues because ALJs can't do anything with them anyway.
  • Plaintiffs challenge new federal rules protecting free speech and due process rights in "Title IX Hearings." Free speech groups move to intervene, claiming the feds will not adequately protect their interests. District court denies motion before any response with sparsely written order. First Circuit: Affirmed. When it comes to the gov't we gotta assume it's here to help. Plus, even though district court didn't have great reasons, we came up with some.
  • In 2020, New York repealed section 50-a of its Civil Rights Law, which shielded police disciplinary records from disclosure under the state's Freedom of Information Law. New York Police Union: If our disciplinary files are made public, our members will have a hard time getting jobs! Second Circuit: Sounds like that one's on you guys.
  • Convicted mafioso fights deportation to Italy, arguing that if he's sent back, he'll face the country's "41-bis prison regime," a highly restrictive form of solitary confinement that he alleges violates the international Convention Against Torture. Second Circuit: It's bad, but it's not torture. Dissent: Isn't it, though?
  • Texas law allows officers of religious organizations—but not secular celebrants—to conduct marriage ceremonies, a prohibition that the Dallas County Clerk enforces by refusing to record marriage licenses signed by secular celebrants. Secular celebrants sue, seeking order requiring clerk to record marriages they officiate. Fifth Circuit: Because the law also criminalizes the secular celebrants' conduct, and they didn't also sue to enjoin those criminal penalties, ordering the clerk to record the marriages won't completely redress their injury and thus they lack standing.
  • Can a case ripen while on appeal? Or must it be dismissed and the plaintiff required to file a new case? Fifth Circuit: Since the plaintiff gets to litigate the claim in either case, it's tough for us to see what's wrong with remanding the existing lawsuit.
  • Two Goliad County, Tex. sheriff's deputies pursue a man and allegedly beat him after he surrenders. He sues. District court: A police car's dashcam video "substantially contradicted" the man's account. Qualified immunity! Fifth Circuit: What? The dashcam didn't record the altercation at all. To trial the case must go.
  • Two teenagers walking home from a party are killed in an El Paso, Tex. drive-by shooting in 1993. Through coercive tactics (including threatening prison rape and the electric chair), officers obtain witness statements implicating a 16-year-old and then a confession from him (that he recants within hours). No physical evidence implicates him, but loads of evidence point to two brothers. The teen is convicted, sentenced to two life sentences. Texas courts overturn his convictions; he's tried again and acquitted. All told, he spends nearly 20 years in prison for crimes he did not commit. Fifth Circuit: His lawsuit against the officers can go forward. (More details on the case from the district court opinion.)
  • The Sixth Circuit is willing to put scare quotes around the "books" that this roadside adult bookstore purveys, but it is not willing to let Kentucky impose content-based restrictions on its signage.
  • In 2017, Arkansas enacted a law requiring government contractors to certify that they won't boycott Israel. Would-be contractor: That violates our First Amendment rights. Eighth Circuit: When it comes to boycotts, there might be some tricky lines between commercial activity (not protected by the First Amendment) and speech (protected). But Arkansas's law potentially covers activities like posting anti-Israel signs and even publicly criticizing the law itself. So to that extent, at least, the law is unconstitutional. Dissent: Read most naturally, the law doesn't reach the speech conjured up by the majority.
  • Stiffed in the suburbs, a St. Louis cabbie places a late-night call to the cops. Two officers arrive, search the neighborhood for the fare-skipper, notice that one house has a slightly open door, and enter the home with guns drawn. Displeased, the rudely awakened residents (who were not cabbie stiffers) sue. Eighth Circuit: Under the "community caretaker" exception to the Fourth Amendment, the officers enjoy qualified immunity for entering the garage. But barging into the house itself? That's beyond the pale. Kobes, J., concurring and dissenting: No qualified immunity for any of it.
  • Missouri only lets licensed in-state retailers deliver alcohol directly to Missouri consumers. Out-of-state retailers: That violates the Dormant Commerce Clause and the Privileges and Immunities Clause. Eighth Circuit: No it doesn't and no it doesn't.
  • New Arizona resident wants to register to vote in the 2016 election. Uh oh! The last day for voter registration in 2016 fell on Columbus Day! Was the state required to accept registrations submitted the following business day? Ninth Circuit: It was not (though the state has wisely corrected this problem).
  • Huntington Beach, Calif. police officer sees a man standing on the sidewalk wearing a sweater on a warm day, decides to investigate. A melee ensues, and the cop shoots the man without warning six times, followed by a warning and then a seventh shot. The man dies. In this context, the Ninth Circuit provides a primer on the differences between California negligence law and the Fourth Amendment and allows the negligence claim to go to trial.

Last summer, officials in Sierra Vista, Arizona ordered residents to leave their homes within 30 days. These residents are elderly, disabled, or living on a fixed income, and there is nothing wrong with their homes. The city simply decided that the best time to begin enforcing a long-unenforced provision of its zoning code was during a pandemic. The code bans living in certain kinds of trailer homes in one part of the neighborhood, but not the other. This means the residents will all be forced to move, including off land they own free and clear, to rent worse property just down the street which costs more and which they can't afford. Moreover, the neighborhood is chock-full of abandoned and derelict properties the city has ignored. Instead, it is focusing its resources on kicking people out of well-maintained homes. This week, IJ filed suit in state court. If the city is going to force people out of their homes, Arizona's Constitution demands that officials have a good reason. Click here to read more.

NEXT: Equal First Amendment Rights Coming for Non-Media Speakers in Oregon?

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  1. “Missouri only lets licensed in-state retailers deliver alcohol directly to Missouri consumers. Out-of-state retailers: That violates the Dormant Commerce Clause and the Privileges and Immunities Clause.”

    21st amendment, section 2: “The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

    Seems pretty clear, and it comes after both the INTERSTATE Commerce clause and the 14th amendment, so if they conflict, it wins.

    1. That said, really stupid law.

    2. It isn’t as clear as you make it sound, and I think you are probably incorrect. That clause only prohibits such actions that are “in violation of the laws [of the State…]”. The clause doesn’t, however, appear to give the State any greater power to make a law it couldn’t otherwise make. So there is a strong argument the law itself must be constitutional without regard to the 21st amendment which means it must satisfy the interstate commerce clause restrictions.

      1. The court has held that the 21st does give states the authority to control importation.

        1. The Court has also been walking back on the commerce clause exception since it was first announced. In Granholm v Herald they basically abolished the exception. Whether this law would violate the dormant commerce clause, I don’t know. The Court doesn’t really have great guidelines on that. But that the dormant commerce clause applies seems to be settled on yes.

          1. That doesn’t make a great deal of sense; The 25th amendment was ratified after the interstate commerce clause, and the whole point of amendments is to amend. Surely a perfectly on point amendment ought to override a mere implication of an older clause.

            And it is perfectly on point: Transportation of booze into a state contrary to its laws isn’t just illegal, it’s unconstitutional. Transportation of something into a state is classic interstate commerce, so you can’t say that this amendment wasn’t meant to apply to interstate commerce.

            1. Just to be contrary, what if the laws which prohibit booze import are themselves unconstitutional for other reasons?

            2. Again you’re skipping over the contrary to their laws part of your statement. Their laws still have to be constitutional. The language of the amendment doesn’t on it’s face grant the state any greater authority than it already had. That is the question. It can regulate importation as long as it doesn’t violate the interstate commerce clause, and then the 21st would also make it unconstitutional

              1. Their laws have to be constitutional, sure. But after the 25th amendment, “It violates the dormant interstate commerce clause!” isn’t a valid excuse for calling them unconstitutional.

                The whole POINT of section 2 of the 25th amendment is, “Screw the interstate commerce clause, dormant or otherwise!” If it doesn’t prevail over the interstate commerce clause, it’s a nullity!

                1. 1. It’s the 21st Amendment
                  2. Remember that the 21st was mostly about repealing prohibition so they had to make sure it didn’t leave argument that the State couldn’t legislate. But that doesn’t mean they were repealing limits on that authority.
                  3. The dormant commerce clause only prohibits unequal treatment between instate and out-of-state actors. There is plenty of room to regulate transportation and importation without favoring your own citizens so it hardly makes Section 2 a nullity.
                  4. Whether you agree with it or not the Supreme Court in Granholm v Heald disagreed with you both about interpretation (they said DCC still applies) and purpose (they say it was to go back to the status quo before prohibition)

                  I’m not saying that your argument has no merit. But it isn’t clear and obvious as you are saying it is.

                  1. “they say it was to go back to the status quo before prohibition”

                    I’d have to disagree with that. Part of the purpose was to allow any state that wanted to to continue Prohibition. Otherwise it would have stopped at Section 1: “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”

                  2. I’m not saying that your argument has no merit. But it isn’t clear and obvious as you are saying it is.

                    That could be Brett’s middle name.

                  3. “3. The dormant commerce clause only prohibits unequal treatment between instate and out-of-state actors. There is plenty of room to regulate transportation and importation without favoring your own citizens so it hardly makes Section 2 a nullity.”

                    “These guys are here, in our state and subject to our jurisdiction to regulate. Those guys are there, outside our state, and beyond our jurisdiction to regulate” isn’t a meaningless distinction.

      2. What about states with schemes where the state directly owns and operates all alcohol vendors (other than bars*)? I believe the federal courts have upheld such schemes.

        *Do those states even allow bars?

        1. Are you taking about when the state controls the distribution network? In those states the retailers and service providers just buy it from the state at the required functions.

          1. No, I have read that there are states where the only retail outlets for alcohol (not for consumption on site) are owned and operated by the state.

            1. There are – Virginia when I lived there a long time ago, and Washington until a few years ago, only allowed hard liquor (as opposed to beer and wine) to be sold in state owned stores.

              Both allowed bars; the state monopoly was on sales for off premises consumption.

              There are many different schemes. If I am recalling correctly from a visit, in Utah grocery stores could only sell 3.2 beer – normal beer (and wine/liquor) were only sold by liquor stores.

              1. Virginia has marginally relaxed its regime. Distillers can sell directly to the public at the distiller’s own place of business, but all other retail sales of distilled spirits for off-premises consumption still must go through state-run ABC stores.

              2. New Hampshire still does — and makes a killing selling it to folk from MA & ME. It’s actually a good deal — they have combined the I-95 rest areas with liquor stores so the rest areas are staffed and hence safe for families with small children, etc.

              3. A couple of decades ago, 3.2 beer was legal in Colorado for 18-year-olds, but real beer was limited to 21-year-olds. So the Airmens’ Club on Lowry AFB in Denver only had 3.2 beer. Potentially, since an AFB is a federal reservation, they didn’t have to observe the state law, but the AF (and the federal government in general) was trying to be a good neighbor, so they acted as if state laws applied to military bases just like they did outside the gates. Of course, it was the federal government that wanted the drinking age to be 21 in the first place.

        2. The big key in any dormant commerce clause case it whether in-state actors or treated differently than out-of-state actors. So in this situation both in-state and out-of-state actors are barred from that aspect of the supply chain there isn’t a DCC problem

        3. “*Do those states even allow bars?”

          Oregon has a fairly draconian Liquor Control Commission, but no shortage of bars. When the people who wrote the decriminalization ballot measure for marijuana wrote their bill, they set up a different regulatory scheme for marijuana stores.

      3. Under your reading, where Section 2 only gives a state the powers it already had before the 25th Amendment was enacted, why was it enacted in the first place? Entire sections of the constitution can’t be complete nullities. Under your reading, the only laws a state can pass under Section 2 are those it could have passed without it. What is Section 2 doing other than taking up extra paper and ink?

        A reading that produces the exact same legal effect as if the section had never been there at all can’t be a fair reading of it.

        1. It can, however, be a likely reading, if you’re discussing an amendment that increases the relative power of state governments. The federal judiciary just aren’t very big on that sort of thing.

    3. I would find it hard to believe that the 21st Amendment totally insulates from review liquor regulation by the states no matter how otherwise unconstitutional. Could a state really say that Democrats can import alcohol but Republicans can’t? Or Catholics but not Protestants? Or Iroquois but not Sioux? I doubt this.

      1. As a general rule, the courts won’t admit that a constitutional amendment overturns something in the Bill of Rights unless it’s explicitly doing so. If Section 2 of the 21st amendment had read,

        “The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited, not withstanding any contrary provision of the Constitution.

        Then states could ban the consumption of communion wine, or ban Democrats from importing vodka, or what have you.

        But since the amendment lacks that text in italics, it won’t be read by the judiciary as overriding anything in the Bill of Rights.

        On the other hand, if it doesn’t override the dormant interstate commerce clause, then the part about importation or transportation is just a nullity, isn’t it? So the amendment has to be read as permitting laws prohibiting importation or transportation so long as they don’t directly violate some element of the Bill of Rights.

        1. The Fourteenth Amendment is not part of the Bill of Rights, but that aside, I don’t see it as a nullity to assume that the state law must otherwise be constitutional.

          1. Otherwise constitutional, sure. but if it doesn’t override the dormant interstate commerce clause, there isn’t much left of section 2.

            Like I said, amendments amend, you can’t just casually render them moot because they conflict with some earlier provision of the Constitution, conflicting with the Constitution as it was before the amendment is the point of amendments.

            The 21st amendment deliberately, expressly, gave states the power to regulate this particular bit of interstate commerce.

            1. Sure there is. So long as the same rules apply to both in state and out of state suppliers, there’s no dormant Commerce Clause issue.

          2. The problem with the “otherwise constitutional” argument is the Supremacy Clause and express Commerce Clause are as much parts of the constitution as the Dormant Commerce Clause (More so, I’d argue, since they are actually in the text). So if a law has to be “otherwise constitutional” to be authorized by Section 2, it can’t conflict with federal law regulating interstate commerce. This means that Section 2 means nothing at all. Congress can completely control the alcohol industry if it wants, as if Section 2 weren’t there.

            1. Under its power to regulate interstate commerce I think Congress could take over the alcohol industry now if it wanted to; it basically tells the states what the drinking age is. See South Dakota v Dole.

              1. When the feds decided that drinking age would be 21, they had to bribe the states to enact it.

  2. Not in the courts (yet), but how far can a corporation exercise its free speech on its employees before running afoul of “hostile environment” discrimination law?

    “WHISTLEBLOWER: Coca-Cola Forces Employees to Complete Online Training Telling Them to “Try to be Less White””

    https://www.thegatewaypundit.com/2021/02/whistleblower-coca-cola-forces-employees-complete-online-training-telling-try-less-white-photos-video/

    1. Before you come up with some knee-jerk comment, bear in mind that one characteristic of whiteness is being “defensive.”

      1. Haw haw! A self-sealing philosophical defense mechanism.

        Next: To be opposed to us is a sign of mental illness.

        1. “Studies show people who agree with us have bigger dicks than those who disagree.”

          1. It’s because of their consumption of little blue pills, though.

    2. I’m waiting for someone to go out on psych disability because of this foolishness — and the thing that was only sorta argued in _Meritor_ was the psych impact of hostile environment.

      And _Meritor_ was 35 years ago — we are oh-so-more sensitive to psychological trauma today. Employees *do* get worker’s comp for psych disabilities, at least in some states. So I’m wondering what an intrepid attorney could make out of something like this…

    3. That’s not so bad. Here’s a college that teaches its student that white people aren’t human.

      “In order to make any progress toward establishing and sustaining a genuinely representative democracy in the United States, Whiteness must be demilitarized so that bodies designated as “White” might become human.”

      1. I thought white people designating their race as “human” was a manifestation of white privilege.

      2. It’s dumb academic speak, but that’s clearly not what they’re saying.

        Cal has a better case above.

        1. “Cal has a better case above.”

          It’s not a contest, Sarcastro.

          “…that’s clearly not what they’re saying.”

          Oh? What are they saying?

          1. Society has white as the default, whites all to often represent the system – and the forces used to maintain it – more than individuals within it.
            Until that structure is dealt with, it is difficult to deal with whites on an individual-to-individual basis.
            ———————–
            Not saying I agree, but that’s what they’re laying down, if you know the jargon.

            1. Another unsupported assertion, Sarcastro? Do you have any evidence that “bodies designated as White might become human” is “jargon,” obvious or otherwise, that means the stuff you said it means?

              1. You asked what they are saying. I told you.

                If you won’t believe me – if you think what I’m saying is untrue – then why did you ask.

                You’re just not a serious person anymore.

                1. Well, obviously if he’s white, he’s not any kind of person.

                  Look, we don’t want to permit the left to routinely use ‘jargon’ that clearly, by the normal operation of word meanings and grammar means something horrific, (Such as whites not counting as human!) and dismiss it as mere ‘jargon’ that actually has some innocuous meaning not clearly communicated by the text.

                  The reason we don’t want to permit this, is the looming threat that, once they get in power, it will be all, “Jargon? Where did you get that idea, you inhuman clump of cells?”

                  You want to communicate something, use the same language everyone else is using, or expect them to take you at your word even if you’d rather they didn’t.

                  1. Good luck with your war against jargon, Brett.

                    It doesn’t parse as normal English – you can tell it’s jargon. You need to ignore that to get to this outrage engine here.

                    This is not a slippery slope towards the white genocide, cool your jets.

                    1. Your problem is that this DOES parse as normal english. You just don’t want us to take it at what it says.

                    2. It parses perfectly clearly using the normal meanings of the words. It just has an abhorrent meaning. I don’t get why you are so steadfast in insisting that we should accept “jargon” doing that.

                    3. Look, Sarcastro, we live in a world where classes of people have been declared less than human, and subjected to genocide. In such a world, when somebody says a group of people aren’t human, you take them seriously.

                  2. “Well, obviously if he’s white, he’s not any kind of person.

                    Look, we don’t want to permit the left to routinely use ‘jargon’ that clearly, by the normal operation of word meanings and grammar means something horrific, (Such as whites not counting as human!) and dismiss it as mere ‘jargon’ that actually has some innocuous meaning not clearly communicated by the text.”

                    So, the person who said that first sentence is just camouflaging their real interest by sing jargon.

                    so knock it off, Brett.

          2. It’s not a contest, Sarcastro.

            I mean, you did introduce the topic by claiming that Cal Cetín’s example was “not so bad” compared to yours…

        2. I believe “that’s clearly not what they’re saying” is what’s called an unsupported assertion, a topic we were discussing with Dr. Ed earlier.

          1. I mean, you post something that is using obvious jargon, but parse it with normal English, you’re leaning into bullshit on purpose.

            1. It’s not obvious jargon. I mean, it’s not the sort of thing any sane person would normally say, but it has a fairly clear meaning, just a horrible one.

              1. Lots of people write things they wouldn’t normally say. Academics, for example, are particularly prone to it.

      3. Anti-racist is code for anti-white.

        1. The problem with codes is that they can mean different things to different people.

  3. “Plaintiffs challenge new federal rules protecting free speech and due process rights in “Title IX Hearings.””

    As best I can tell, FIRE & IWF didn’t think that the Biden administration wouldn’t do an overly good job fighting this — and the more relevant question is what happened with the underlying District case?

    I haven’t seen mention of this (yet) in the Higher Ed literature which is also interesting…

    1. When it comes to the gov’t we gotta assume it’s here to help.

      I’m pretty sure this country was founded on the opposite of that. And based on Biden’s time in office, I’m pretty sure he’s going to try to not defend these rules.

      1. “‘When it comes to the gov’t we gotta assume it’s here to help.’

        I’m pretty sure this country was founded on the opposite of that.”

        Maybe, but the New England Crown courts probably stuck to it (or something like it) until they were suddenly lacking jurisdiction, and our courts expressly adopted English common law.

    2. ” the more relevant question is what happened with the underlying District case?”

      This is an appeal of a motion to intervene, so presumably the case in the district court has not yet proceded to any decision on the merits.

  4. Two Goliad County, Tex. sheriff’s deputies pursue a man and allegedly beat him after he surrenders. He sues. District court: A police car’s dashcam video “substantially contradicted” the man’s account. Qualified immunity! Fifth Circuit: What? The dashcam didn’t record the altercation at all. To trial the case must go.

    The district judge who invented fake video evidence was Kenneth M. Hoyt, Southern District of Texas.

    Although the decision isn’t explicit, reading between the lines, it looks like the plaintiff’s version of events before the beating may have diverged from the video, and so the judge decided that he’s a liar. But the actual beating wasn’t captured, so you can’t do that.

  5. My tweeters are tracking the below…I clicked through, and it seems legit, not outrage clickbait.

    5th Circuit decision: Police officers tased Gabriel Eduardo Olivas while he was suicidal and soaked in gasoline. This set him on fire, burning him to death and burning down his house.

    “If we tase him, he is going to light on fire”
    The court held the officers’ actions were lawful.
    https://ca5.uscourts.gov/opinions/unpub/20/20-10055.0.pdf

    1. Better link, (seems like you need the ‘www’.

      That’s a tragic case. I don’t get a sense of malice from the officers. A gasoline soaked guy holding a lighter is a pretty bad situation. If he sparks the lighter, he can’t be saved. If you try and grab the lighter and he sparks it, you might not survive either.

      I wonder what the probabilities are, i.e. if you tase someone soaked in gasoline, is the probability of a fire 10% or 90%? I’ve seen people tased (in the ‘Citizen’s Academy’ our police run), and there wasn’t any sparking obvious – perhaps it depends on the distance between the prongs, etc. Of course, it doesn’t take much of a spark to light gasoline. With the right carpet, you might have enough of a static charge that grabbing them with your hands could ignite the gas. I dunno the right answer, other than a situation like that is reason #847368 that cops have a hard job.

      1. “A gasoline soaked guy holding a lighter is a pretty bad situation. If he sparks the lighter, he can’t be saved. If you try and grab the lighter and he sparks it, you might not survive either.”

        True, but tasers carry a warning not to use them on people covered with flammable liquids due to ignition risk, and the cops are on record discussing this problem before tasing him.

        So TLDR: the cops, in order to prevent suspect from committing arson, commit arson themselves. The 5th Circuit is okay with that.

        1. The core question is whether or not they were authorized to use force on the flammable gentleman. The court decided that the cops in question WERE authorized to use force, and so their use of force isn’t (legally) a problem.

      2. “I wonder what the probabilities are, i.e. if you tase someone soaked in gasoline, is the probability of a fire 10% or 90%?”

        I’d say closer to 90% than 10%
        TASER ECD Warnings, Instructions, & Information: Law Enforcement

        Fire and Explosion Hazard
        ECD Use could result in a fire or explosion when flammable gases, fumes, vapors, liquids, or materials are present. An ECD
        can ignite explosive and flammable clothing or materials, liquids, fumes, gases, or vapors (e.g., gasoline, vapor or gas found
        in sewer lines or methamphetamine labs, butane-type lighters, or flammable hair gels). Do not knowingly Use an ECD in
        the presence of any explosive or flammable substance without legal justification. Note that some self-defense sprays use a
        flammable carrier, such as alcohol

        1. What part of that says “closer to 90% than 10%” to you? To me, that just says “probably above 0.1%”.

          Warnings like that get slapped on an incredible number of hazards, even ones that seem very unlikely to normal people, if someone decides the combination of severity and frequency of outcome cross some threshold. They may have even used a risk matrix the help read the entrails and determine what to warn about.

          1. I concur; you don’t get sued for putting out too many warnings. I have pneumatic tools where the manual’s ‘Important Warnings’ section says to use a cord rated for sufficient amperage.

            If the risk of the taser lighting the guy is 10%, and the risk he’ll light himself is 20% if you just keep talking, risking the taser might be smart. If those percentages are 90% and 20% … not so smart.

      3. Federal law requires all commercial vehicles (including police cars) to carry a 10 BC fire extinguisher. Shoot him with that and the lighter ain’t gonna light.

        1. Do you know how small those things are? It’s rated for 10 square feet. They should have had one, but wasting it before he lit himself on fire would just ensure that he’s a goner.

          This seems like the cops had a bad situation with no clear way to come out alive. They took a set of steps that ended poorly, but the only thing I can fault them is not having the fire extinguisher ready. On the other hand, I can’t really fault them too hard. They messed up and failed. They didn’t murder the guy.

          1. suicide by cop, more painful than the usual case.

    2. This was on the previous weeks Short Circuit

    3. “‘If we tase him, he is going to light on fire’
      The court held the officers’ actions were lawful.”

      They were lawfully authorized to attempt to use force to stop him from threatening himself and others. The fellow is just as dead if they tase him or shoot him, so there’s no special liability for lighting him on fire with a taser.

  6. Can’t register to vote on Columbus Day? That’s double White supremacist voter suppression. Make it harder for blacks to vote and name the day after their oppressor.

  7. The Sixth Circuit is willing to put scare quotes around the “books” that this roadside adult bookstore purveys

    These are more properly mocking quotes, or sarcasm quotes.

  8. Desuetude exists as a law only in West Virginia. It would be a great Amendment to the constitution. If any rule has not been enforced for 5 years, it is void. It would be an opportunity for a great extinction of the great majority of rules. Most are lawyer garbage rules doing far more damage than good. Almost none has undergone testing for safety, effectiveness, and lack of horrible unintended consequences. Definitely none has undergone a dose-response curve analysis, which is required of all remedies.

    1. The bill of Rights goes back to 1791, so out they go, eh?

      Great idea, I don’t know why the lawyers don’t listen to you more.

  9. In the 5th circuit wedding case, permitting religious officiants represents an accommodation to people whose religions require religious weddings. But the plaintiffs have no obligation to have their preferred officiants perform weddings, they merely prefer them.

    Indeed, accepting the Plaintiffs’ arguments would erase the Free Exercise Clause under the Constitution. Every time government accommodate a religious obligation under the Free Exercise Clause, it treats members of that religion differently from everyone else, thereby (under the plaintiffs’ arguments) violating the Equal Protection Clause.

    If states are required to leg plaintiffs have their preferred officiants because religious people are entitled to religious officiants, then every time states accommodated Jews or Muslims with kosher or hallal cuisine, everyonex else would have to be entitled to have their preferred cuisine, whatever their preferences might be. If a state school postponed an exam for a student to accommodate a religious holiday, everyone else would get to have their exams postponed whenever they prefer, i.e. WHENEVER THEY FEEL LIKE IT.

    These examples should indicate not merely how spurous, but how deeply and unconstitutionally bigotted. the plaintiffs’ equation of religious peoples’ religious obligations with mere personal preferences really is. Their view of religious obligation as nothing more than mere personal preference reflects a profound misunderstanding and disrespect for religion, and a profound unwillingness to take the constitution’s Religion Clauses protecting religion seriously.

    1. What, exactly, is the objection to allowing married people to have the officiants they prefer perform the ceremony? Whether it be a religious officiant or a secular one?
      Rather, what it looks like is the religious officiants maintaining a monopoly on marriages, aided by the county clerk. “Get it from us, or you can’t have one.”

      1. Except there are free online churches that you can join as an officiant with five minutes and no fee. I did it myself when my wife was a wedding planner, just so we’d have a backup in emergencies.

        1. I’ll rephrase, then. What, exactly, is gained by requiring secular would-be officiants to join “free online churches” before they can officiate weddings, and why isn’t that an establishment problem? Presumably, there is paperwork involved in officiating a wedding, and the state has an interest in having officiants properly complete and file that paperwork. But how does the rule they have serve that interest?

  10. In the 5th Circuit case involving the motorist who calimed he was beaten by the police, there is more evidence in the Plaintiff’s favor than just his word. The video doesn’t show what happened in the woods, but it does show him being returned to the patrol car with a bloodied face. That bloodied face represents evidence that something happened to himin the few minutes that he was in the woods, making his claim considerably more plausible than if there had been only his declaration and no corroborating physical evidence.

  11. Rejecting the ability of free speech groups to intervene is pretty bad. We have constantly seen the government throw cases, especially recently after a changeover in administration. This is a bad precedent.

    1. They have to show a strong likelihood of mistake or abuse if they aren’t allowed to stick their noses into someone else’s court case. “We don’t trust the gubmint” doesn’t quite reach that bar.

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