Short Circuit: A Roundup of Recent Federal Court Decisions

Waters of the United States, stolen gift cards, and Hester Prynne.

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

New on the Bound By Oath podcast: Early one morning in 1958, Chicago police burst into the home of an innocent family with guns drawn and without a warrant. On this episode, plaintiffs from the landmark case of Monroe v. Pape tell us about the raid that changed history.

New on the Short Circuit podcast: Special guest Tiffany Wright of Howard University's Civil Rights Clinic drops by to talk police disciplinary records in New York and suspicionless smartphone searches at the border.

  • In 2003, a Massachusetts man was convicted of being a felon in possession of a firearm. But wait a minute. The assistant U.S. attorney who signed the indictment hadn't paid his bar dues, so his law license was suspended. Will the First Circuit retroactively throw out the whole prosecution? What do you think, anyone who has ever litigated against the government?
  • Allegation: Man wakes up gasping for air. He's turning blue, biting his tongue, and urinating. His wife calls 911. When Charlton, Mass. police arrive, they order the man to stop moving. Instead, he stumbles around in his underwear asking "What did I do?" So they shove him to the ground and kneel on his back (and then leglock him, and then handcuff him). He ends up with a seizure diagnosis and a fractured spine. First Circuit: Qualified immunity for the shove. But there might be some recovery for the kneeling (or for the shove under other legal theories).
  • Lawyer representing indigenous Ecuadorians sues Chevron for environmental damage, secures multi-billion award. Uh oh! He did it by bribing the judge a half million dollars, among other shenanigans. Following a RICO suit in the United States, the plaintiff's lawyer is prohibited from profiting from the Ecuadorian judgment. Does this include raising money by selling interest in the fraudulently obtained judgment? Second Circuit: It does, but we weren't sufficiently clear about that the first time around, so don't do it again. Dissent: We were totally clear about that. The civil-contempt ruling should stand.
  • In March 2020, Congress's Paycheck Protection Program authorized the Small Business Administration (SBA) to guarantee favorable loans to certain businesses affected by COVID-19. SBA: Businesses presenting "live performances of a prurient sexual nature" are excluded from the program. Strip club: That violates the underlying statute and the First and Fifth Amendments. District court: You're probably wrong, so no preliminary injunction for you. Second Circuit: Agreed.
  • Clarkstown, N.Y. officers stop and frisk man walking out of store with his two daughters; one officer recognized the man and, based on nothing more than a hunch, "believed that there might be" an outstanding warrant for him. Officers admitted, however, that they could point to no actual facts to believe he had committed any crime, and in fact the man had no outstanding warrants and the frisk found no weapons. Man sues, pro se. Police argue for qualified immunity as there's no clearly established law that this is wrong. Second Circuit: This was a "paradigmatic violation of the Fourth Amendment." QI denied.
  • South Carolina fourth-grader writes an essay about LGBTQ equality for inclusion in a booklet of essays to be kept in the classroom and sent home with students. Principal vetoes inclusion of the essay as not age-appropriate, then relents, but student's mother says she no longer wants essay reprinted in booklet. Instead, she sues, alleging that the principal violated the First Amendment by providing "no adequate explanation for holding that [the student's] essay had no valid legitimate educational purpose." Fourth Circuit: "This argument, like most of the arguments advanced by Appellant, completely misses the point."
  • Decades ago, a 20-something Virginia nanny had sex, once, with a 15-year-old boy. Now in her 50s, she's suing pseudonymously as "Hester Prynne," challenging "Orwellian" features of Virginia's sex offender registry: she must submit fingerprints every 90 days, notify the state of new email addresses within 30 minutes, face unannounced home visits from a permanent investigator, avoid schools while kids are around, never drive for Uber or Lyft, notify federal and international law enforcement when traveling in other countries, give up the possibility of adoption, and more. Fourth Circuit: And since those restrictions didn't exist at the time of the crime, there might be an ex post facto problem. (The opinion—22 pages long, accompanied by a 35-page partial dissent, and splitting with an earlier unpublished decision of the same court—is unpublished. (And even more parenthetically, legal-writing friends who gasped at the Supreme Court's first use of the "(cleaned up)" parenthetical last week may find this footnote, from Judge Agee's dissent, notable: "I have omitted internal quotation marks, alterations, and citations here and throughout this opinion, unless otherwise noted."))
  • Prosecutors in Texas murder trial use a spreadsheet listing potential jurors' races and bolding the names of black people. This results in a jury of 11 white jurors and one black juror, which convicts and sentences to death a black man. But the federal courts cannot consider that spreadsheet, says the Fifth Circuit, as it was not included in the state-court appeals. (No matter that prosecutors did not hand it over until after his state-court appeals were done.) Besides, the spreadsheet seems fine.
  • Industry trade associations challenge a federal regulation limiting concentrations of phthalates—chemicals that have been shown in some studies to interfere with normal development of the male reproductive system—in children's toys. Fifth Circuit: The agency violated the APA when it failed to offer a second opportunity to comment after new scientific data led it to change its justification for the rule, and the agency also failed to conduct an adequate cost benefit analysis. However, we will leave the rule in place while we give the agency an opportunity to remedy those defects.
  • If esoteric questions of diversity jurisdiction, appellate jurisdiction, and Burford abstention strike you as appealing (appealing!), then step up for this Fifth Circuit fed-courts funhouse.
  • Pro-tip: When a court dismisses your arguments as "unpersuasive at best, and nearly incoherent at worst," you are probably going to lose your case. Relatedly, the Sixth Circuit would like this law firm to show cause why it should not be sanctioned after it sued three judges on a state appellate panel for allegedly making false statements in a judicial opinion.
  • Turns out that the transmissibility of COVID-19 has no connection to whether your large gathering consists of lockdown protestors or BLM protestors. Relatedly, the governor of Kentucky committed a "textbook" First Amendment violation when he threatened the former with prosecution, while inviting and speaking to the latter. But, as the Sixth Circuit notes, the case is moot on appeal, because the governor rescinded the COVID-19 restrictions.
  • A Cleveland-area postal-service employee stole gift cards out of en route mail. All told, she stole a lot of cards averaging about $35 each—a total value around $47k. So the "loss," for the Sentencing Guidelines, would be about $47k, right? The feds: Not at all. Stolen gift cards are "unauthorized access devices" like stolen credit cards, and the Guidelines commentary says the "loss" per unauthorized access device should be at least $500. So the "loss" is more like $750k. Sixth Circuit: You keep using that word. We do not think it means what you think it means.
  • Federal prosecutors charge members of a white supremacy group—who travelled to political rallies planning violent confrontations—with violations of the Anti-Riot Act. Ninth Circuit: The Act is unconstitutionally overbroad, as it covers speech merely intended to encourage or promote a riot, but we can cure the defect by striking a few unconstitutional words from the statute. Dissent: I agree, but I would strike fewer of those words. (We previously covered a similar Fourth Circuit ruling on the podcast.)
  • Would you believe that dry land can be categorized as "waters of the United States," and thus subject to regulation under the Clean Water Act? Ninth Circuit: Indeed! But to secure a conviction the government had to prove the defendant knew the land was "water." The district court should hold another trial, and this time it should tell the jury about the knowledge requirement. Dissent: The government should have to prove the defendant knew he was discharging a pollutant into "waters of the United States," and not just any "water."
  • Exemption 5 to the Freedom of Information Act excludes certain intra-agency memos from production if they would not be available by law to a party in litigation with the agency. Does this include memos produced by outside consultants for the FAA? Ninth Circuit (en banc): When the consultant is acting as the functional equivalent of the agency, then yes. But the FAA hasn't provided a good enough explanation of how it searched for other responsive documents, so back down it goes.
  • The town of Gilbert, Ariz. is justly famous not only for its sign code, but for happy hour at the nearby Mad Dog Saloon. ("Great happy hour," Heather R. reports credibly on Yelp.) On the evening of May 5, 2016, a local man leaves the saloon and catches a police officer's attention by swerving his vehicle. Ignoring the police lights, he drives home and into his garage, where he refuses at length to leave the vehicle and insists, "No, I'm not under arrest." The police release a K-9, which bites the man for almost a minute. Man sues. Ninth Circuit: Qualified immunity.
  • To practice law in Oregon (as in many other states) you must pay not only for a license, but also dues to the state bar association. A group of lawyers who in no way want to associate with the association say that violates their First Amendment rights. Ninth Circuit: Not your free speech rights it doesn't. But back to the district court on whether there's a violation of the freedom of association.
  • Jailhouse informant provides the prosecution's only direct evidence, and the defendant is convicted of a Colorado Springs, Colo. murder. Yikes! The informant recants, says his false testimony was induced by the lead detective. The convicted man seeks habeas relief, which the Tenth Circuit revives once in 2013 and again in 2018. Alas, the third time isn't the charm, as the Tenth Circuit refuses to entertain the man's newest arguments because he did not include them in his original habeas petition.
  • A 35-week-pregnant woman—held in custody at the Metropolitan Detention Center in Bernalillo County, N.M.—goes into labor. For 30 hours, the medical contractors on site ignore and minimize her symptoms, refuse to take her to the hospital, and fail even to conduct a pelvic examination. When she finally gives birth, her child is stillborn. She sues. Qualified immunity for the medical contractors (all employees of a for-profit, multi-state corporation)? Tenth Circuit: No.
  • After a young woman's father alerted police to her illegal drug use, the woman spent four days in Duchesne County, Utah jail vomiting and exhibiting other symptoms that jail officials ascribed to a stomach bug. Without medical treatment, the young woman died of opiate withdrawal. Tenth Circuit: The jail employee who ignored the woman's symptoms is potentially liable. But the jail's private doctor is not, even if the doctor's training protocols were not exactly robust. We doubt that private doctors have market power to impose training protocols on government facilities, and liability would deter doctors from working with those facilities at all.
  • The Clean Water Act prohibits the discharge of pollutants into "navigable waters." In response to rulings from the U.S. Supreme Court holding that "navigable waters" excludes wetlands that aren't anywhere near actual navigable waters, the EPA and the Army Corps of Engineers adopt regulations consistent with that holding. Colorado sues, and a district court preliminarily enjoins the new regulations. Tenth Circuit: Which it should not have done. Colorado failed to demonstrate that it would be irreparably harmed without an injunction, which is sort of important.

Queens resident Joe Corsini is, like many New Yorkers, a pigeon keeper. He decided to build a small pigeon coop on the roof of his home. Shortly after it went up, he received $3,000 in fines from the city and an order that he get a permit—something he hadn't realized the small structure needed. He hired an architect and tried to bring the coop into compliance. But the city made a series of unreasonable demands until Joe finally gave up and took it down. While engaging with the city, he continued to receive violations for the coop, ultimately amassing approximately $11,000 in fines. Some were never reviewable by a neutral adjudicator—he simply had to pay. Others were subject to stacked-deck administrative hearings. Due process requires more. So Joe decided to fight back with IJ in a federal case challenging this abusive system. Click here to read more.

NEXT: Paycheck Protection Program Exclusion of Nude Dancing Establishments Upheld

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  1. Re: 20-something VA nanny, must submit fingerprints every 90 days? Why? What’s the point? Fingerprints don’t change baring an accident (usually with a machine tool).

    “died of opiate withdrawal” – I did not know that was a thing.

    1. This may have been part of the reason the case was sent back to see if the sex offender requirements were pumitive rather than administrative in character, and hence an extension of her criminal punishment subject to Ex Post Facto rather than a civil remediation program not subject to it.

    2. A cynic would justify it as part of proving her identity, to make sure she hadn’t skipped town and sent in a ringer.

    3. It’s common enough that medial observation for opiate withdrawal is a routine part of the intake process in some jails.

      As I understand it (I’m not a medical doctor), while opiate withdrawal is generally much, much less dangerous than alcohol or benzodiazepine withdrawal, which act on different systems, being in jail without *any* medical attention (neglect or deliberate inattention) can complicate matters. It’s the lack of basic medical attention that ends up being deadly:

      “Persistent vomiting and diarrhoea may result, if untreated, in dehydration, hypernatraemia (elevated blood sodium level) and resultant heart failure.

      People can, and do, die from opiate withdrawal – and all such deaths are preventable, given appropriate medical management.”

      Cases like this come up because jail staff are deliberately indifferent to someone vomiting and shtting themselves to death in a jail cell. Which shouldn’t happen to anyone.

  2. In the 6th Circuit credit card case, there seems to be evidence the defendant stole a lot more gift cards than the ones found at her house when it was raided.she had been stealing systematicalky for more ovee a year. The feds might have uncovered evidence of additional theft by looking at e.g. money trails and purchases to see if her lifestyle was much greater than her income, and hence may well have legitimately been able to associate her crimes with much greater losses.

    But she plea-bargained, so the government is limited to the specific conduct she was charged with and pled to, including only the gift cards found at her home in the raid. I fully agree that stealing a $35 gift card clearly does not cause a $500 loss by any reasonable interpretation.

    1. But she plea-bargained, so the government is limited to the specific conduct she was charged with and pled to, including only the gift cards found at her home in the raid.

      That is definitely not how federal sentencing works, nor is it now things work in any state jurisdictions I’m familiar with.

  3. It would be nice if our CJ reform moment had some more discussion on doing something about AEDPA/federal habeas. As it is now, the process takes up a tremendous amount of time and judicial
    resources just so that the court can ultimately find some procedural reason not to grant the writ, even when constitutional violations become obvious.

    1. Yeah. The Fifth Circuit decision in the spreadsheet case is an abomination.

      1. I’m not sure the spreadsheet would have decided anything differently, seeing as how the criminal confessed to the murder in interviews with several news stations, giving explicit details on the murder.

        But if you’re worried about abominations, how do you feel about keeping someone without imprisoned without bail or trial for 5 months who has no violent past, no criminal past, zero flight risk, and no real violent crime….

        1. Confession or not, using data to exclude members of a certain race (any race, really) is wrong and the verdict reached by any jury constructed with such a practice should be tossed.

        2. What if the genuine purpose of the spreadsheet was to *include* Black jurors instead of excluding them?

        3. Then the incompetence of the prosecution is magnified by the fact that – despite such a seemingly solid case – they still felt that violating the constitution was necessary.

          Retry and convict him. Should be no big problem. But I’m not a fan of “no harm no foul” rationalizations for egregiously flouting due process.

        4. Even though I know this us a some sort of trap about a Capitol insurrectionist, I favor granting bail, assuming everything you say is true, which is quite an assumption.

          As A general rule I dislike pretrial detention without very strong justification. That the defendant lacks the resources to put up bail is insufficient justification, IMO. For that reason, I think the manufactured whataboutish RW rage about Harris helping raise bail money for arrested BLM protestors is ridiculous.

          1. It’s certainly reasonable for people to argue for broad based minimal bail or other kinds of bail reform. OTOH, as one’s effort to supply bail becomes more focused, doesn’t it offer some insight into where sympathies lie?

            If, for example, someone announced, in advance, that they would provide bail money for anyone arrested for a specific class of crimes – whether that was drug crimes, prostitution, tree-spiking, or whatever, you might reasonably infer something about the sympathies of whoever is providing the money.

            And especially when the promise is made up front, e.g. “I will provide bail for any voting registration activists arrested (in the Jim Crow south)” you might reasonably think the person providing bail intends to encourage the given activity. Heck, I would contribute to that cause, with every hope of encouraging it.

            It gets just a little more problematic when the activity being encouraged is illegal. One can make a case that encouraging some slightly illegal behavior – perhaps a lunch counter sit in – is morally defensible. But surely there are lines past which one should not encourage illegal behavior by offering bail (“I will put up bail for anyone who burns down bernard11’s house”).

            And so, if one is talking about bailing people out in the context of last summer’s disorders, one should be really, really, really careful to make sure they are only proposing to provide bail for people engaged in legitimate first amendment activity. And when you look at the aftermath in, say, Minneapolis, there was pretty clearly a great deal of activity – arson and looting – that is were in no way legitimate protests. And I think that people promising bail a priori ought to be very, very selective about which offenses they want to support, and very clear that they aren’t in fact offering support to arsonists or looters. And at least some of the offers I heard over the summer didn’t seem to be narrowly limiting the kinds of things they were offering bail for.

            (I’m assuming here, of course, that they don’t actually want to support arson and looting)

            1. If, for example, someone announced, in advance, that they would provide bail money for anyone arrested for a specific class of crimes – whether that was drug crimes, prostitution, tree-spiking, or whatever, you might reasonably infer something about the sympathies of whoever is providing the money.

              You might. In Harris’ case it would be sympathy for the protestors. She provided funds to a foundation in MN which bailed out those arrested, some of whom probably were rioters, but she has also condemned violent protests, so maybe you need to be careful about inferences.

              Also, you can’t bail out everyone.

            2. And so, if one is talking about bailing people out in the context of last summer’s disorders, one should be really, really, really careful to make sure they are only proposing to provide bail for people engaged in legitimate first amendment activity.

              Sentence first, verdict afterwards?

              1. Well, suppose in the days of the Jim Crow south someone establishes a fund to bail out or defend a narrow group of people – perhaps KKK members on trial for lynching civil rights activists.

                I would not contribute to such a fund[1]. I’m not sure I would characterize my reluctance to monetarily support those particular defendants as ‘Sentence first, verdict afterwards’, but if you like that characterization, then I plead guilty.

                [1]I might support a fund to provide bail/defense to some broader group of defendants, even if it happened to include those defendants, but I’m not going to go out of my way to support that particular class of defendant.

                1. The statement I was responding to was “only proposing to provide bail for people engaged in legitimate first amendment activity.” But nobody was charged with “engaging in legitimate first amendment activity,” tautologically. So whether people were engaged in legitimate first amendment activity or were violent rioters/looters/arsonists was precisely what needed to be determined.

                  1. Ah. I suppose, as far as my personal charity goes, I would be a lot more willing to support someone charged with trespassing at a sit in, than someone charged with assaulting an officer by throwing cans or arson.

      2. How so? I’m not sure I even see a colorable argument that the result isn’t dictated by Pinholster.

        1. Unless you were referring to the inexplicable failure to sanction the defense attorneys for arguing that the sixth amendment gave the defendant the right to have a lawyer present while he was being interviewed by the media, in which case I agree.

        2. The spreadsheet wasn’t introduced in the state court because it wasn’t available, having been deliberately withheld by the prosecution.

          The Appeals Court’s logic looks to me like an attempt to thread its way past common sense.

          1. 1. Do you think that the prosecutors were required to disclose the spreadsheet during the state court proceedings? (Note that the defendant conceded that they were not.)

            2. Can you explain how you think there’s a way under Pinholster and its progeny for a federal court to consider this type of evidence? Or is the “abomination” that the Fifth Circuit didn’t order the district court to ignore the Supreme Court and use “common sense” instead?

            1. Do you think that the prosecutors were required to disclose the spreadsheet during the state court proceedings?

              I don’t know the mechanics of the court proceedings. I would think there was some mechanism that would lead to its disclosure. I just find it bizarre that it can be concealed at that stage and then, when discovered later, it can’t be introduced in federal court, precisely because it was concealed initially.

              In effect the court says, “Hey, the prosecutors get away with it.”

      3. I’ve heard several civil rights lawyers be extremely adamant about the racial makeup of juries. Ensuring that there was at least some mix is necessary to prevent an appeal based on an “all white jury”.

        You can’t have it both ways that something is both mandatory and banned.

        1. Yeah, things you’re supposed to show to defend against a Batson claim include that other minorities were included on the panel and that non-minorities received similar questioning and were similarly excluded. How are you supposed to do that without having any record of the races of jurors? (Race is not included on Texas jury cards, so you’re just left with appearance in the courtroom.) You have to either rely on your memory sometimes long after the fact or be branded a racist because you can’t give those explanations. I don’t think just having races noted alone is indicative of racism in picking the jury.

    2. Agreed. AEPDA was a good start, but it’s only effective if judges actually take it seriously, and too many aren’t interested in doing that. Congress should crack down and actually take a look at eliminating or seriously reducing federal collateral review of state criminal convictions.

  4. “….phthalates—chemicals that have been shown in some studies to interfere with normal development of the male reproductive system—in children’s toys.”

    Look into how microplastics mimic estrogen in the human body as well. It’s not just soy and obesity, if you wonder why there are so many, ahem, less masculine males these days. We are at the stage with this health topic where we were with smoking in the 1970s, just becoming aware of the true scope of the problem.

  5. There is a small mistake in the description of the CA2 case about Donziger. At issue wasn’t whether “we”—i.e. the Second Circuit itself—was unclear about the scope of the injunction, but whether the District Court was.

    I really enjoy Short Circuit; it’s one of the highlights of Fridays.

    TGIF!

  6. Prosecutors in Texas murder trial use a spreadsheet listing potential jurors’ races and bolding the names of black people. This results in a jury of 11 white jurors and one black juror, which convicts and sentences to death a black man. But the federal courts cannot consider that spreadsheet, says the Fifth Circuit, as it was not included in the state-court appeals. (No matter that prosecutors did not hand it over until after his state-court appeals were done.) Besides, the spreadsheet seems fine.

    This might end up being a summary reversal by SCOTUS, given Flowers v. Mississippi.

    1. Yeah, I can’t see how that spread sheet seems fine. It seems like an open admission that they plan on selecting jurors by race.

      1. Except how many often is the racial makeup of a jury the cause of appeal? Especially in the media, the “all white jury” is a major deal. You need a diverse makeup of a jury in order to prevent the appearance of impropriety.

        As I said earlier, you can’t mandate diversity and then ban the methods needed to ensure it.

      2. Or that they were preparing to defend against a Batson claim. Courts can’t ask for all sorts of information about the racial makeup of the panel on Batson claims and then prohibit the parties from making notes on that information in case they’re challenged.

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