Short Circuit: A Roundup of Recent Federal Court Decisions

Collector's coins, lucky stars, and a global nuisance.

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

Should federal courts of appeals act as advocates for the gov't and raise defenses—unprompted—on the gov't's behalf? You can probably guess where we come down on this. For more details, dig into a recent IJ cert petition featuring a buffet of Younger abstention, sua sponte decision-making, and the Dormant Commerce Clause.

• Here's a legal-ethics brain-twister: If you previously served as the general counsel for a nonprofit, can you represent clients suing that nonprofit over matters in which you previously represented the nonprofit? If you said, "Yes," then you, too, might end up having your license to practice law suspended for 90 days, as the D.C. Circuit did to Judicial Watch founder and former general counsel Larry Klayman.
• Professional photographer takes photos of Prince, and then licenses one of the photos to Andy Warhol for a Rolling Stone piece. Andy Warhol proceeds to make a series of paintings of Prince based on the photo. Photographer: That's copyright infringement. Andy Warhol's Foundation: It's fair use. District Court: Fair use. Second Circuit: Let's not go crazy.
• New York City sues oil companies under state nuisance law for damages stemming from global warming. But according to the Second Circuit that state law is preempted by federal common law because of the issue's interstate and international character. Further, federal common law "functions much like legal duct tape," and gets ripped off when Congress speaks. Which it has done with the Clean Air Act. And there's no role for international federal common law either because international diplomacy is a tricky thing federal courts must shy away from. Thus, NYC, no claim for you.
• Does the Fair Housing Act—which prohibits racial discrimination in housing—require landlords to address tenant-on-tenant harassment? Second Circuit (en banc): Landlords are not the boss of their tenants' behavior towards other tenants, so no. Case dismissed. Dissent: If the landlord didn't intervene because of the tenant's race, that's actionable. The case should go forward.
• Retired probation officer strolling around New Rochelle, N.Y. is approached by two plainclothes police officers. Retiree's version: The officers didn't identify themselves as police, were physically rough, over-tightened the handcuffs, and banged my head on the (unmarked) police car. Officers: We identified ourselves, used only reasonable force to restrain the recalcitrant suspect, and immediately released him once we verified that he was not the misdemeanant we were seeking. District court: The retiree "should be thanking his lucky stars" his injuries were minor; this case is way less important than many of my other cases; and the defendants win. Second Circuit: Given the parties' different accounts of what happened, there are obvious fact disputes bearing on whether the officers used excessive force. To trial the case must go. And while we're at it, no qualified immunity if the retiree's account of the incident is accurate.
• Publicly intoxicated man is placed in the Botetourt County, Va. jail to sober up. A few hours later, he's found dead. Man's estate sues his custodians for displaying deliberate indifference to his serious medical needs (a Fourteenth Amendment violation). District court: Case dismissed. Fourth Circuit: Not so fast. The man was lethargic, semi-conscious, and barely able to walk, and the officers knew he had consumed prescription narcotics—all strongly suggestive of a drug overdose, which reasonable officers would have acted to address. The case may proceed to discovery.
• The federal government maintains the Terrorist Screening Database (TSDB, as it's known in the biz), which is used to screen travelers in airports and at the border. Twenty-three people (who allege they are in the TSDB) sue to invalidate the database under the Fifth Amendment's Due Process Clause. Fourth Circuit: Much like the Sixth and Tenth Circuits, we emphatically decline to facially invalidate the TSDB.
• Police hear from a confidential informant that a guy with a certain physical description and license plate number is a drug dealer. Later the CI tells the police that the same guy told the CI he just got some new product and it's available for sale. Officer finds a man who matches the description and sees him shake someone's hand in a parking lot. Based on his "training and experience" the officer initiates a stop-and-frisk and finds illegal drugs. Fourth Circuit: Motion to suppress should have been granted. Handshakes just aren't that suspicious a thing. Concurrence: The whole "training and experience" thing has gone way too far.
• Woman starts using prescribed opioids as a teen following an injury and gets hooked. She fills forged prescriptions, using half and selling half. She estimates that she sells 52k pills over two years, though the gov't's math is a bit higher—175k pills. She's sentenced to 210 months. Fourth Circuit: Way too long. Dissent: Her sentence was at the low endpoint of the Sentencing Guidelines. It may not be a sound policy, but that doesn't make it legally unreasonable.
• Elderly Texas inmates housed in a geriatric unit allege that the prison warden didn't do enough to respond to the COVID-19 dangers. By the time of trial, nearly half of the inmates had tested positive and 19 had died. District court: The warden isn't doing enough. Here's 17 things he must do going forward, including weekly testing and following cleaning plans. Fifth Circuit: This litigation helped motivate prison officials to act, saving countless lives, but a forward-looking injunction is unwarranted.
• Allegations: Transgender woman is arrested for unlawful possession of a weapon and booked at the Dallas County, Tex. jail. Officer demands that she show him her genitals so he can confirm whether she has a penis or a vagina. She complies. Over the next couple of years, she's repeatedly arrested, classified as male, held with male inmates, and forced to shower with them. She sues, among others, Dallas County and the county sheriff in her official capacity. Fifth Circuit: Accepting the complaint's allegations as true, the county had a policy of strip-searching transgender detainees for the sole purpose of determining their gender and classifying them solely on their biological sex. Whether or not that policy violates the U.S. Constitution is for the district court to decide on remand.
• Suicidal man waves gun in the air, ignores police commands. An Austin, Tex. officer shoots him. The man drops the gun and stumbles away. The officer shoots twice more, killing him. Officer: I didn't see him drop the gun. Fifth Circuit: It's pretty clear from the video, and—since it's clearly established that it's unreasonable to use deadly force after a suspect no longer poses a threat—this goes to a jury. No qualified immunity.
• Shawnee State philosophy professor refuses to refer to transgender student by the student's preferred pronouns because his religious convictions forbid it. After the university rejects several proposed accommodations (including using the student's preferred pronouns while including a statement in the syllabus that it is being done under compulsion), the professor eventually settles on using the student's last name. The student thereafter actively participates in class and receives a high grade. The professor is disciplined. He sues alleging violations under the First Amendment's Free Speech and Free Exercise Clauses. Sixth Circuit: And his case should not have been dismissed.
• Want to run as an independent for statewide office in Michigan? Great! All you'll need is 30k signatures from registered voters obtained more than three months before the election, before you even know who the major-party nominees are, with least 100 of those signatures from half of the state's 14 congressional districts. That's in contrast to major party candidates who just have a primary or convention. Also, just FYI, no independent candidate has actually succeeded in making the ballot in the 30 years this system has been the law. Still want to run? There's good news! The Sixth Circuit found all this to violate the First Amendment, and upheld the district court's new 12k signature threshold.
• Is the CDC's order prohibiting evictions for non-payment of rent an example of "other measures" in this list of powers Congress has delegated to the HHS Secretary—"[I]nspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary"? Probably not, says the Sixth Circuit, denying a motion to stay the district court's judgment filed by a group of landlords.
• Missouri man walks into an IRS office and volunteers that he owned jewel mines, was in deep with the drug cartels, and New Mexico authorities were investigating him for embezzlement. Several months later, authorities search his house, discover 364k $1 coins depicting deceased U.S. presidents. IRS agents seize the coins, remove the packaging, run them through a coin counter, deposit $364k in an IRS account, and place the coins in circulation. Yikes! The coins actually belong to the man's ex-wife (she got them in the divorce). The feds transfer the $364k in the account to her, but she sues alleging that she's owed more given that the coins are valuable collector's items. District court: Indeed, the guvvies owe the woman $95k. Eighth Circuit: Sovereign immunity. The agent's decision to send the coins for processing (rather than saving them as he discovered them) was discretionary, so the ex-wife can't get help under the Federal Tort Claims Act.
• Denver police officers receive training that people have a First Amendment right to record them in public. But only courts can say what's clearly established, says the Tenth Circuit, and we haven't said so yet (and won't here). So qualified immunity for police who illegally searched a man's tablet in retaliation for his filming their use of force while arresting someone.
• And in en banc news, the Third Circuit will not reconsider its ruling that federal law prohibits the operation of safe-injection sites, where drug users can inject drugs under the supervision of medical professionals.

It is completely legal to travel with any amount of cash on domestic flights. And if you check the Transportation Security Authority's online list of items that are—and are not—prohibited (475 items), you will not find any restrictions on cash. And yet TSA screeners detain travelers traveling with money and turn them over to law enforcement, often DEA, who will take their money with no suspicion of criminal activity and without filing criminal charges and then subject them to a months- or years-long bureaucratic maze to try and get it back. Which is unconstitutional. And this week, a federal judge rejected the gov't's motion to dismiss an IJ class action challenging TSA's and DEA's airport cash seizure practices. Click here to learn more.

Comments

[Brett Bellmore]

"Allegations: Transgender woman is arrested for unlawful possession of a weapon and booked at the Dallas County, Tex. jail. Officer demands that she show him her genitals so he can confirm whether she has a penis or a vagina. She complies. "

Is there some law that requires the courts to play along with it if men pretend to me women? Or is it just that judges have chosen sides in this particular social debate?

[mse326]

This decision actually has nothing to do with the merits. The appeal was based on a dismissal of some defendants by saying there was no municipal liability. The court simply said that if the facts alleged are true AND if they violate the constitution then there would be because there was a policy. All this was is a decision on what is considered a policy that can give rise to municipal liability under Monell. There is no ruling on the merits of the constitutional question which the district court is free to rule against on remand

[Brett Bellmore]

It simply seemed to me that the court, in continually referring to this dude as "she", was in fact taking a side in what looked like the very controversy before it: Whether it was obligatory to humor her claim. (I'm obviously taking a side, too, but I'm not a judge in the case.)

So I was wondering if the language was legally mandated, or reflected the judge's view of the matter. Reading the case, I see that Mr. Jackson had legally 'changed' his sex. (Though not, of course, factually. Just a legal fiction.)

I suppose that answers my question: If Mr. Jackson is legally a girl, then regardless of the actual facts of the matter, the judge is obligated in the context of legal proceedings to pretend he's a girl.

[Roman Moroni]

The article wasn’t explicit about whether the transgendered woman had a penis or a vagina. From the context, I assume the former since they then categorized her as a male inmate going forward. Otherwise the guard didn’t check for a practical reason.

So do you think the courts should judge where she’s to be housed based on her physiological appearance? My own bias makes me kind of think so, seeing as it would be weird for someone with a penis to be showering with women, and someone with a vagina to be showering with men.

But I admit that might not be the best way to make the legal determination. However, if not that, then what criteria is the most sound to make that determination?

In normal life I tend to be sympathetic of allowing transgendered people to be treated as they like, and using whatever bathroom they choose - I’m really not worried about transgendered people attacking people in bathrooms. Anyone who has a burning desire to do so isn’t going to be stopped by a bathroom sign anyway - but perhaps a prison scenario is different. If I were sentenced to life in prison, and basically got my choice of spending that time in men’s or women’s prison, I can certainly see the incentive to be disingenuous about being transgendered... as long you didn’t have to go all the way with it surgically.

Have the courts made any kind of hard line determination on this? Do they judge the sincerity of a transgendered inmate? Or do they have a surgical requirement in order to switch teams, as it were? Or are we still strictly categorizing inmates based on sex at birth?

[James Pollock]

"In normal life I tend to be sympathetic of allowing transgendered people to be treated as they like, and using whatever bathroom they choose – I’m really not worried about transgendered people attacking people in bathrooms."

Of course, attacking people in bathrooms is already a crime, transgendered or not.

[santamonica811]

James,
I expect that Roman was saying, roughly, "There are lots of doomsday scenarios and fearmongering among anti-trans (and anti-gay, and anti-black) folks. Including the myth that people in this group are especially prone to sexual assaults of some helpless group. Black men want to rape white women; gays (and now, trans) will molest little boys (and girls) if given access to the "wrong" bathrooms, etc etc."

I think Roman was just making the obvious point that, in fact, people in these demographics are *not* more likely to commit sexual assaults. Given the prejudices and the years/decades these myths have persisted; I cannot fault Roman for pointing out their falsity.

[Brett Bellmore]

My concern here is not centered on sexual assault by actual transgenders.

I suppose there's a potential problem of people who aren't transgender pretextually claiming to be, to get into a position to commit such assaults, given that you don't have to actually do anything medical to make the claim.

But, really, it is mostly about two things:

1) Forcing people to humor delusions, and/or become complicit in things they find offensive.

2) Encouraging such delusions, including Munchausen by proxy. Then making medically irreversible interventions.

The idea that you could give hormone blockers, or worse, do surgery, on children, when almost all 'gender confusion' resolves shortly after or during puberty, is horrifying. This is the sort of thing only adults should do, excepting extremely rare intersex conditions.

And then do at their own expense.

[James Pollock]

"My concern here is not centered on sexual assault by actual transgenders. "

No. You're afraid someone will discover your secret.

[James Pollock]

"1) Forcing people to humor delusions, and/or become complicit in things they find offensive."

Coincidentally, you issue any number of offensive delusions.

[Brett Bellmore]

When you respond to reasoned arguments with insults, it just tells everybody that you know you have no rational answer. So, go ahead, advertise that you lost the argument, I don't mind.

[Roman Moroni]

Yes, SM, that’s exactly what I’m saying.

I think transgendered folks should be treated as they please, and I’m really not worried about any perverse incentives for them to be disingenuous about their intentions in every day life.

However, I wonder if the prison issue might need a more hard line determining factor (aside from the inmate’s preference) because in this case, I could see a perverse incentive to be disingenuous.

I can see an incentive to choose women’s prison over men’s prison, even if the inmate had no intention of assaulting anyone. It just seems more pleasant in every way.

So should there be a sincerity test of some kind? Or is pre-op vs post-op the way to make this determination? Should each case be evaluated individually by a judge?

I don’t necessarily have the best answer, but I’m inclined to resist birth sex to be the end all be all factor in every case.

[David Nieporent]

Of course, attacking people in bathrooms is already a crime, transgendered or not.

Of course, the next sentence that you didn't bother to quote acknowledged that.

[mse326]

I get that what pronouns the court ends up using can appear to take sides, but that is going to be the case regardless of which one they choose. So in a case where it doesn't matter, and it doesn't in the question before it, it is prudent to use the preferred pronoun (even if not legally changed) so as to not get the calls of animus that could require recusal.

With that said I also acknowledge that I'm someone who recognizes that many of the questions are not clear, you don't have to be a bigot to come out against the transgendered individual, and sometimes I do. But the pronoun usage question generally seems to me to be really meaningless as no one is actually harmed by using the preferred pronoun (I am talking about voluntary usage, I don't support mandated usage)

[Life of Brian]

it is prudent to use the preferred pronoun (even if not legally changed) so as to not get the calls of animus that could require recusal.

Oh dear. Judges by the very nature of their business have to be pretty resilient creatures. Put a deeply-connected gangster in prison for life; shrug off the endless wave of death threats. But call someone the WRONG PRONOUN??!??

[mse326]

It's not about their nature and whether they will be hurt by it. Resilience is irrelevant. Like I said it is about whether it would lead to the need for recusal and what "harm" it may do to the judiciary. I certainly am not saying they should alter their legal opinions for those reasons, but they are also supposed to stay out of the fray as much as possible until necessary. Using preferred pronouns in this case is simply one of prudence, not judicial dictate.

[Life of Brian]

Like I said it is about whether it would lead to the need for recusal and what “harm” it may do to the judiciary.

Of course, there's no "need" for recusal. As you aptly said, in a case where pronouns are at issue, the judge is going to aggrieve one party or the other by choosing a pronoun for the case. If either side could demand recusal on that basis, few cases would ever go forward.

And the specter of "harm to the judiciary" returns to my original point: in any other context, judges generally don't bow to thinly cloaked variants of "sure is a nice judiciary you have there...."

[James Pollock]

Are we harming you by going along with your claim to be a dude, Brett?

[Brett Bellmore]

My wife and son find the pretense pretty convincing.

[James Pollock]

So you're good at faking things.

[James Pollock]

Sounds like you're not the only one being harmed.

[TwelveInchPianist]

Yeah, the non-standard terminology at issue was adopted by activists explicitly for the purpose of seeking a particular set of outcomes. It's fine for activists to to that, of course, but when judges adopt the language they risk appearing to pick sides.

[James Pollock]

"when judges adopt the language they risk appearing to pick sides."

It's almost like they're PAID to pick the winner. Are you similarly concerned when they pick words like "judgment for the plaintiff" or "judgment for the defendant" or "JNOV" or "directed verdict"?

[Life of Brian]

Are you similarly concerned when they pick words like “judgment for the plaintiff” or “judgment for the defendant” or “JNOV” or “directed verdict”?

Amazingly, no, given that words like "plaintiff" and "defendant" and so on are the antithesis of "non-standard terminology," which you must have accidentally cropped from your quote.

[James Pollock]

So you're only worried about judges appearing to pick a winner when the loser is you?

[James Pollock]

Bad news then: You ARE a loser.

[Life of Brian]

I understand you're trying particularly hard to be a too-cute chucklehead on this one, but no. A party filing a lawsuit doesn't get to say "I identify as a DEFENDANT!" Judges use those words according to their standard and well-understood meanings.

[Ben of Houston]

Then, we have the other side. If they had put him in a women's prison, you would have all forms of lawsuits from the women's side saying how they were forced to shower with a man. The police had no course of action here that wouldn't lead to a lawsuit.

[Roman Moroni]

Yes, that occurred to me too.

But what of a post-op transgendered woman? Wouldn’t it make more sense to house her with women?

At that point no other female inmate really has to worry about the transgendered woman’s sincerity about why she’s there. As long as she doesn’t join the prison’s boxing team. Then the lawsuits would have merit.

[Brett Bellmore]

In fact, if I understand the jail's policy, that's exactly what they would have done. Thus the search, to confirm the matter.

Subtle point here: 'She' had lied about it.

[TwelveInchPianist]

"If they had put him in a women’s prison, you would have all forms of lawsuits from the women’s side saying how they were forced to shower with a man."

Well, that's the crux of the whole issue. In situations where you care if someone else is a man or a woman (as in the case of women in prison who would rather not shower with a man), should you accept the other person's view of their gender instead of your own?

The trans rights movement thinks we should be required to suppress our own view of someone else's gender and blindly accept that person's claim.

[James Pollock]

" If they had put him in a women’s prison, you would have all forms of lawsuits from the women’s side saying how they were forced to shower with a man."

If, in fact, anyone was forced to shower with a man.

[James Pollock]

https://www.youtube.com/watch?v=PoLAdfRIamE

[Dan Schiavetta]

"Publicly intoxicated man": Something similar, but worse, happened to my dad's co-worker. Had a few drinks, but had a stroke and fell into the street. The cops assumed he was drunk and put him in jail to dry out. He tried to protest that something he needed a doctor but they didn't believe him. (This all came out in testimony later.) He had another stroke in the cell and died during the night.

[Gasman]

"Professional photographer takes photos of Prince, and then licenses one of the photos to Andy Warhol for a Rolling Stone piece. Andy Warhol proceeds to make a series of paintings of Prince based on the photo."

I think Bill Watterson captured where Warhol was eventually going with this.

[Toranth]

Denver police officers receive training that people have a First Amendment right to record them in public. But only courts can say what's clearly established, says the Tenth Circuit, and we haven't said so yet (and won't here).

This may be the stupidest things Short Circuit has highlighted in a while.
Other circuits have clearly established the right, none have said there is no right, the state specifically established such a right in the law, the city admitted they know there is such a right - and explicitly trained the police to that effect.
But the judges here decide that just because they haven't said the same thing yet, they can override the state and city governments, plus police regulations?

It makes so little sense that I feel like there's got to be something more to this case, but a quick read of the link doesn't show it.

[santamonica811]

Had the exact same response. But, with the extra outrage at the court saying, "Now, sure, we COULD explicitly state it now, which would mean future Denver cops could not do this. But . . . nah; we're gonna deliberately refuse to do this. Let's give those cops two bites at the apple. Or maybe 10 bites.

It's like some form of Kabuki theatre. I feel like I'm missing something important, but I don't think I am.

[James Pollock]

They might have ruled the other way, if there was evidence that cops were abusing their authority. But, there was no evidence of that presented at trial, because the video was deleted.

[Allen Garvin]

"364k $1 coins depicting deceased U.S. presidents"

The presidential coin series? She lost a minor seigniorage
surcharge above the face, that the mint charges for uncirculated or proof. These aren't going to become valuable for a few lifetimes. That seems like a pretty dumb coin investment.

Now, if they had found 364k $10 coins depicting deceased U.S. presidents' wives, and only gave her back the face value, that would be truly outrageous.

[Brett Bellmore]

$364K in face value, the lower court ruled they owed her $95K in addition. I guess you could call that a minor seigiorage surcharge, but it still stings having the government rob you of $95K.

And that's what happened here: She was robbed, and the circuit court ruled they had the discretion to do it.

[Lastseer]

Seems to me our society has recently been defining more than two types of gender, but were still stuck with only two gender types for prison. Is there a market opportunity for someone to build a transgender prison/prison wing and then start to offer contracted incarceration services to the various states, who'd rather not deal with the lawsuits?

[UnitedBronx]

Very sad to hear that someone suffered from Federal court. But this is what I have always been telling my wife. That we will end up being sued by our neighbors if we don't use duct cleaining services from professionals like https://comfortclean.com/ or anybody else. She waited till the dust started to fall off the ceiling and I literally had to force her call these guys.