Short Circuit: A Roundup of Recent Federal Court Decisions

Threats to the community, lubricated desks, and SWAT donning and doffing.


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

New on the Short Circuit podcast: Mike Masnick of Techdirt sets the record straight on Section 230. Plus: when the government flies a drone over your house and takes photos, is that a search?

  • Tennessee man and his mom participate in the January 6th incident at the Capitol, sporting tactical vests and (in the man's case) carrying a holstered taser. They enter the Capitol through an open door, pass police officers standing nearby, and see a few sets of zip ties that they snag. They roam the Capitol for about 12 minutes, including entering the Senate gallery, and then leave, apologizing to police on the way out. They vandalize nothing and commit no violence. Should they be held in jail pending trial? D.C. Circuit: Only if they pose an articulable threat to the community, which the district court hasn't adequately considered and ought to on remand.
  • Lawyer in Queens falsifies some 100 asylum applications, so federal prosecutors charge her with asylum fraud. They also—because it is the specific policy of the United States Department of Justice to stack as many charges as possible—separately charge her with lying to the government and with identity theft, even though she did not, in any normal sense, steal anyone's identity. Second Circuit: Convictions affirmed. Concurrence: The stacking seems unfair, though.
  • Practice tip: If the Third Circuit publishes redlines of your briefs, you are probably screwed.
  • Local governments enjoy immunity from antitrust damages, but is a public hospital that operates in 47 locations across two (soon to be three!) states really a "local" anything? 'Tis, says the Fourth Circuit.
  • Forward-thinking Jean-Noel Frydman bought and registered in 1994, using it as a platform for his business's (also called France-related travel services. Following litigation in Paris's Tribunal de Grande Instance and Cour d'Appel, the domain name is transferred to the French Republic—or, more specifically, to Jean-Yves Le Drian, the Republic's Minister for Europe and Foreign Affairs. (the business) sues France (the country) in the Eastern District of Virginia, claiming cybersquatting, trademark infringement, and more. District court: Much as it did during its last visit to the E.D. Va., France wins. Fourth Circuit: Correct; France is immune under the Foreign Sovereign Immunities Act.
  • After an employee of the Texas Alcoholic Beverage Commission expressed concern that the Chairman's stock holdings might pose a conflict of interest, the employee was liquidated. Fifth Circuit: The employee only knew about the potential conflict because of her job with the Commission, so she was speaking as an employee and not a citizen. No First Amendment problem there.
  • After fellow inmates at Coffee County, Tenn. jail caused their toilets to overflow, a detainee spent several days in a cell contaminated with urine and feces. Sixth Circuit: The detainee has sued the county, but this is not the county's mess.
  • Following the 2017 Las Vegas shooting, in which 58 were killed and more than 500 injured by a gunman firing weapons equipped with bump stocks, President Trump ordered DOJ to propose rules banning the devices. The following year, DOJ published a rule classifying bump stocks as prohibited machine guns. Sixth Circuit: But they're wrong, and we owe no deference to their interpretation of a criminal statute. Dissent: Doesn't matter that the law is criminal, we still owe deference.
  • "In competition a bruised (corporate) ego should be dealt with by hiring an advertising agency, not by hiring a lawyer." And with that, the Seventh Circuit denies relief to a manufacturer of standing desks that brought a defamation suit against a competitor who said plaintiff's desks were excessively lubricated.
  • During a normal controlled buy, police ask an informant to buy drugs from a suspect. But what if the informant instead enlists an unwitting third party to buy the drugs? Does that make the controlled buy a less reliable basis to authorize a search? Seventh Circuit: No, at least not where police saw the third party enter the apartment and come out with drugs.
  • When an officer responding to an armed robbery called for backup, no backup ever arrived—allegedly leading to a case of PTSD. Seventh Circuit: While these allegations remind us of the dangers police officers face and the courage the job requires, they do not state a constitutional claim.
  • Chicago SWAT team members take their gear home—like night-vision goggles and rifles—so that they can respond quickly if they receive a call while off-duty. But the city requires that they take the gear inside their house rather than leaving it in the car, a process they estimate takes fifteen minutes. Does the city need to pay them for that quarter hour? Seventh Circuit: No. (The opinion does not mention any in-chambers experiments to test that length of time.)
  • Released from prison in 1986, man waits all of 30 minutes before robbing an Illinois bank. District court (1987): Life imprisonment. Seventh Circuit (1987) (Easterbrook, J.): Affirmed. Seventh Circuit (2021) (Easterbrook, J.): I'm still here, guy. And because you robbed the bank in 1986, you are ineligible to seek compassionate release under 18 U.S.C. § 3582(c)(1), which applies only to people whose crimes postdate October 31, 1987.
  • Woman serving a 120-month term of imprisonment for manufacturing meth petitions for compassionate release, citing her susceptibility to COVID-19 and Legionnaires' disease. District court: You were arrested after a meth lab was found in your kitchen, so home confinement is an unsuitable alternative to prison. Petition denied. Seventh Circuit: No abuse of discretion here.
  • The University of Iowa admits that it violated the constitutional rights of a Christian student group by subjecting it to restrictions that it did not apply to other groups, but are the individual defendants entitled to qualified immunity? Eighth Circuit: Not on the free-speech and free-association claims, but yes on the free-exercise claim. Concurrence: No across the board. "The individual defendants may pick their poison: they are either plainly incompetent or they knowingly violated the Constitution. Either way, they should not get qualified immunity."
  • The Eighth Circuit has the case of a Minneapolis police officer whose driver's license information was searched some 1,000 times by her fellow officers. (The opinion is vague on the details, but Wired reports that MPD officers were searching the license info of various women, sometimes in the middle of the night. There's also an allegation about rejected romantic overtures.) Alas for the searchee, there were evidentiary problems below—as suggested by the jury over-punishing just two lookups with $300k in damages—so the department and last two defendant officers are getting a new trial.
  • Having already held that there is no Second Amendment right to carry concealed weapons in public, the en banc Ninth Circuit considers whether there's a right to open carry in public. Ninth Circuit: There is not. Dissent: 500 years of Anglo-American legal history begs to differ.
  • Man prosecuted for robbery and various other crimes, but in which he only scored a total of seven dollars and a bottle of cologne, is held in jail pending trial unless he can make $350k in bail. Although cash bail is supposed to only be used sparingly on those likely to flee or who pose a risk to public safety and requires a judge to make an individualized assessment, the California Supreme Court recognizes "it's a different story in practice." As in the defendant's case, it generally comes down to whether you can cough up the funds in a uniform bail schedule. The court declares the current practice unconstitutional, that cash bail should only be used in rare circumstances, and that the accused's ability to pay must be taken into account.
  • Long Lake Township, Mich. officials suspect property owners are illegally storing junk on their property again, but can't check because of all the fences and trees. Hey, that's no problem, because they have access to a drone which flies above the land several times taking photos which the township uses in a zoning enforcement action. After losing a suppression motion the property owners appeal and the Michigan Court of Appeals reverses. Distinguishing U.S. Supreme Court precedent on planes and helicopters hanging out above homes, it says drones can get closer and aren't expected. A dissent says nice try, but I don't think there's a way around those cases.
  • And in en banc news, the Ninth Circuit will not reconsider its earlier ruling striking down a 2018 Department of Homeland Security rule that strips asylum eligibility from all aliens arriving in the U.S. between designated ports of entry. Judge VanDyke issues a salty dissent, accusing the original panel of "judge-jitsu," "chutzpah," "ham-fisted[ness]," "mischief," and "overt results-oriented judging."

Michael Jones of North Carolina is a fan of drones, and, a few years back, he started up a drone photography business. Among other services, he'd take aerial photos of land (for developers, for example) and use software to create orthomosaic images of the property. Enter the North Carolina Surveying Board, which says communicating any location, elevation, or dimension data about land requires a full-blown surveyor license. So does using orthomosaic software. So does creating 3D digital models of land or buildings. A First Amendment problem? Here at IJ, we certainly think so. So we've teamed up with Michael and his company to sue the Board and vindicate the rights of all drone operators to create and sell useful information about land. Find more information here.

NEXT: Senator Elizabeth Warren Channels Her Inner Trump

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  1. I’m sorry, but in the first story you have a pair of people who are essentially being charged with trespass and petty theft of something of trivial value. Why on Earth is the prosecutor asking that being remanded without bail? How did a judge grant that?

    The extreme disparity in treatment between the political groups here is absurd.

    1. “Petty theft of something of trivial value”? You seriously consider American democracy to be of trivial value?

      On the merits, I agree that these two should be released on bail, but to hear their supporters tell it, the insurrectionists were basically kids letting off steam. Nope, they tried to violently overturn a democratic election. That’s serious.

      1. “they tried to violently overturn a democratic election.”

        No they did not! Did you read the narrative of their actions? They were there for a protest. There was no insurrection.

        1. Publius, denying what the entire country watched on TV accomplishes nothing except shredding your own credibility. We saw it.

          You can equally as well claim Jack Ruby didn’t kill Lee Harvey Oswald.

          1. Ah, yes. There was an attempted overthrow if the government… Using zip ties and viking helmets…. But no guns… And it was supposed to be accomplished by occupying a single room.

            1. Being well thought out and well executed is not an element of a crime.

      2. Since you can’t steal “American democracy”, it’s value is irrelevant. The only thing you could conceivably charge them with theft of was the zip ties.

        1. Right, and the only thing Ted Bundy could conceivably have been charged with was illegal disposal of a body.

        2. “Wonder why the murders are not as high outside the city if guns are so plentiful there?”

          That’s not what the mobs chanting “stop the steal” thought. But it turns out, they were the ones attempting a steal, not the ones stopping one. Oops.

      3. You can stop pretending to be offended now.
        We have an open and explicit insurrection going on right now. A group setting up an “autonomous zone” where they explicitly do not allow any government personnel to go and where they claim American law doesn’t apply. That’s an insurrection.

        You can call the January 6th protests many things: a riot, a shame, and an embarrassment come to mind. However, to call it an insurrection is to be willfully ignorant of the English language.

        By the by, multiple people have died in these autonomous zones and from gunshots, not strokes and heart attacks.

        1. And I’m fine with the police shutting down these autonomous zones. But the autonomous zones aren’t for the purpose of overturning a democratic election.

          1. Ummm. Were the protests?

            Did they ever have any actual goals of doing so? No. They explicitly and repeatedly based their protests on election chicanery (that has been proven) and fraud (that has been alleged, but none that has been sufficient enough to matter, though I will also agree that the media took a page from Saddam Hussein on “how to look like you’re hiding something”). They believed that they were defending a democratic election from being overturned.

            Then, did they actually have the means to overthrow anything? No. There was no plan, and there were no actions that would be needed to overthrow the government. No weapons were fired inside the capitol. No Senators were attacked.

            This boils down to “I disagree with them, therefore, they are unconscionable”. The issue I have is that remand without bail is generally reserved for extreme criminals and flight risks. Even murderers are typically allowed bail. Being involved in the “wrong sort” of protest is now considered a greater threat than actual murder.

            1. I think that most of what you say is complete nonsense, but for sake of argument suppose you are right.

              The law is entitled to consider potential consequences, even if we got lucky this time. It’s why drunk driving is illegal, even if you happen to be lucky enough to make it home without incident. Or why it’s illegal to leave a three year old alone in a locked house all day, even if nothing bad actually happens. Because if something bad does happen, it’s potentially catastrophic.

              We got lucky on January 6. There’s a long list of potential disasters that were narrowly averted. Suppose there had been an actual shooting war between the Secret Service and the insurrectionists; there could have been hundreds of dead bodies. Suppose the people chanting “hang Mike Pence” had actually gotten to him before his Secret Service detail whisked him away. Suppose one of the rioters had found the actual electoral college ballots and burned them before they could be counted; we would have had a constitutional crisis from hell.

              Do not assume that just because we got lucky, that it couldn’t have been far, far worse. The people who invaded the Capitol need to be prosecuted to the maximum to ensure that something like that never happens again.

              1. I’d say you’re the one spouting nonsense.

                First, the police found no guns at all, so your actual shooting war wasn’t ‘narrowly averted’, it just wasn’t in the cards.

                Second, there’s more than a slight bit of luck between chanting “hang Mike Pence!” and actually hanging him.

                Burning the “actual electoral college ballots” would have meant precisely nothing. What, you think electors are entitled to the secret ballot, and nobody knows the count until Congress unseals the envelope? You think they couldn’t just ask the electors to verify how they’d voted?

                1. The issue is what was known on January 6, not what we know now, and on January 6, nobody knew if the rioters were armed or not. All the Secret Service and other security knew was that several hundred angry people changing “Hang Mike Pence” were storming the Capitol. It’s hardly a reach to imagine someone deciding to protect the Capitol first and ask questions later, at which point there would have been a lot of dead bodies.

                  And had the ballots been burned, your scenario is indeed one possible outcome, but given that Trump and his congressional enablers were insisting it was a stolen election, it’s hardly the only possible outcome.

                  Bottom line is you’re discounting the magnitude of the very bad things that could easily have happened. The highest priority is to ensure that it never happens again. That means sending as many of the insurrectionists as you can convict to federal prison for as long as you can keep them there. And yeah, there will be complaints from the right about favoritism and selective prosecution, but there are anyway.

          2. “But the autonomous zones aren’t for the purpose of overturning a democratic election.”

            WTF? Are you serious?

            Say you’re in a suburb of Portland, you’ve just elected the local government in a democratic election.

            Then somebody sets up an ‘autonomous zone’ that excludes from your neighborhood the jurisdiction of that local government. You don’t have the benefit of their police protection anymore, you pay tributetaxes to the autonomous zone collective, and they enforce their own laws on you.

            I’ll grant that doesn’t overturn the election so far as people outside the zone are concerned, but it sure does so far as you’re concerned, for all practical purposes. (Except that the government that permitted it will probably still collect taxes from you anyway, on top of the tributetaxes you’re paying to the zone.)

            1. I had not heard that the people running the autonomous zones were collecting taxes, and if they are, that should not be permitted to continue.

              But even assuming that everything you’ve said is accurate in its entirety, that doesn’t even overturn the election for the people inside the zone. The mayor is still the mayor and the chief of police is still the chief of police. They’ve just chosen not to do their jobs.

              And that’s one criticism of Portland city government that I do think is legitimate: the police are not doing their jobs. But that’s not the same as overturning a democratic election.

  2. “overt results-oriented judging.”

    How about ‘judging’ based on the law, and the facts?

    1. Based on the law and the facts that were cherry picked to support a pre-determined result.

  3. On the bright side (, in ), the Third Circuit did not complain that Courier New is fixed-pitch (not proportionally spaced).

  4. I know some of the professors on this site are vociferously against qualified immunity, but they always object to it in the context of law enforcement actions, which I believe is the wrong approach to limiting QI. BLinC v. U of Iowa, I believe, is a better starting point to limit QI. It is my perception that judges and the courts have been hesitant in limiting QI in law enforcement situations because the situations are so dynamic and compressed in time, that second guessing after the fact is illogical and unfair to the officers. Officers literally have moments to accurately assess a sometimes chaotic situation, decide on a correct action, and act before further harm can happen. On the other hand, non-law enforcement public officials have the benefit of access to legal counsel, consultation of experts and others, and time to reflect on an action before it is taken. Law enforcement officers cannot stop time in order to call legal counsel, consult more experienced officers, or to reflect. If anyone doesn’t deserve the protection of QI, it is the public officials at U of I. This would be a good starting point to limit QI. If it is truly believed by some that QI is not grounded in common law or legal history, then they should start with non-law enforcement cases.

  5. I can’t speak for the honorable citizens of Chicago, but in the lawless territory of the North Shore of Massachusetts LEO toys have in fact been stolen from vehicles left parked outside.

  6. I hope to god courts don’t let governments spy on you using hovering drones because you know, planes way up in the sky!

    For that matter, reevaulte plane spying given ever greater lensing and electronic optics, if a plane at 10,000 feet can see as well as the drone at 50.

    1. A point against the drones is that they can drop down and get camera angles no airplane could. My neighborhood is fairly heavily wooded, you can’t really see a lot from the air. But a drone could get down below the canopy.

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