Short Circuit: A Roundup of Recent Federal Court Decisions

Accessible websites, remote voting, and 325 pages of opinions on the Indian Child Welfare Act.

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

Friends, Tuesday April 20 is the 150th anniversary of President Grant signing the Civil Rights Act of 1871 into law, giving the federal government powerful tools to fight the Ku Klux Klan—and giving civil rights plaintiffs a powerful tool, Section 1983, to hold state and local officials accountable for violating the Constitution. Please join us on Zoom from 12 – 2 pm ET for an event commemorating this momentous occasion and featuring scholars and litigators including Paul Finkelman, Fred Smith, Kelsi Brown Corkran, and Victor Fleitas. Register today!

  • "For the second time," notes the D.C. Circuit, "we face the question of what to do about a Guantanamo military commission judge who, while presiding, seeks employment with an entity involved in prosecuting the detainee." But because the government was willing to let any allegedly tainted orders be reconsidered de novo, the D.C. Circuit sees no need to weigh in; the detainee's petition for a writ of mandamus is denied.
  • Despite the COVID-19 pandemic, the speaker of the New Hampshire House of Representatives refuses to allow members to participate in votes remotely (the previous Speaker died of COVID-19 one week after being selected at an in-person gathering). Seven House members with various medical conditions sue, alleging the policy violates the Americans with Disabilities Act. First Circuit: Quite possibly. The case is remanded for reconsideration of the plaintiffs' motion for preliminary injunction.
  • Allegation: Suspected drug dealer flees across rooftops from Reading, Penn. police and is eventually cornered in an abandoned building. Unarmed and covered in his own blood, he dangles himself out a window. An officer punches him repeatedly in the head. He falls 10 feet and breaks his leg. Though he's unconscious, another officer tases him. District court: Qualified immunity. Third Circuit: Not so. Remanded for trial.
  • Do you like puzzles? Then you'll love the Fifth Circuit's 325-page set of en banc opinions on the lawfulness and constitutionality of the Indian Child Welfare Act, the law that regulates the placement and adoption of children born to American Indians. Some of the Act violates equal protection, some violates the anticommandeering doctrine, and some violates the Administrative Procedure Act. But, other parts do not. Want to know which parts do and don't and why? You can only really figure that out by adding up the various votes and comparing numerous footnotes in the several opinions. However, the court helpfully includes a five-page per curiam cheat sheet to get you started.
  • Sole black member of a jury—in a case involving a Heritage Creek, Ky. police officer allegedly body-slamming a black man in because he was in the wrong place at the wrong time—reveals that the white jurors wrote off the plaintiff as a crack addict and referred to his lawyers as "the Cosby Show." Sixth Circuit: Courts generally cannot consider evidence of jury deliberations, but the Supreme Court has made an exception for evidence of racial bias. Today, we hold that exception applies to civil as well as criminal trials.
  • South Dakota man spends 10 years in prison for vehicular homicide after he rolls his Corvette, killing the passenger. Whoops! Witnesses later confirm that he was the passenger and the dead woman was the driver. He's released and sues, alleging that the reckless investigation by the trooper who found him violated his constitutional rights. Eighth Circuit: The trooper found the victim on the passenger side of the car and the plaintiff outside the car near the open driver-side door, and the witnesses didn't come forward until years later. It's hard luck, but it doesn't shock the conscience.
  • Lee County, Iowa officer who is transporting a handcuffed and shackled but not seatbelted prisoner in his cruiser responds to bank robbery in progress. Prisoner: The officer drove through a rutted, unmaintained lot, tossing me around violently and causing injuries to my neck and back. Officer: I was only going 20 to 25 mph, though I did turn abruptly when the robber fired at the cruiser. District court: A jury should sort this out. Eighth Circuit: Reversed. The officer may have been negligent, but negligence isn't enough to impose liability here.
  • Can a grocery store be held liable under the ADA because its website is not accessible to the visually impaired? Eleventh Circuit: Nope. A website is not itself a place of public accommodation under the ADA, and the website's limited functionality does not prevent visually impaired customers from visiting the physical store. While the Ninth Circuit reached a contrary decision in a case involving a pizza chain, that case was distinct because customers could order pizza on the website. Dissent: Even if customers couldn't buy anything on the website, they could use it to refill prescriptions and access coupons. As stores make increasing use of the internet, they need to make their websites accessible to the visually impaired.
  • Two Tallahassee police officers kill armed suspects in separate encounters. Can the city publicly identify the cops? Florida appellate court: No. The suspects threatened the cops' lives, thus victimizing them, so the cops are entitled to Florida constitutional protections that allow crime victims to remain anonymous.
  • There's a lot to untangle in this Kansas Supreme Court decision about statutory rape between two underage teens. But the takeaway is we can all rest assured that Clay County, Kan. officials are committed—really, really committed—to prosecuting a 14-year-old girl for having sex with a 14-year-old boy (who was older than her by several months).
  • And in en banc news, the Ninth Circuit has amended but will not reconsider its decision enjoining in all states along the southern border the Trump Administration's rule requiring asylum seekers to first apply for, and be denied, asylum in a country they had to travel through to get to the southern border.

Elizabeth Brokamp is a licensed, certified, and very experienced counselor who has been providing therapy over the internet to clients from her home in the Virginia suburbs of Washington D.C. throughout the pandemic. One of her clients moved to New York, however, which bars out-of-state counselors from providing teletherapy. Though the state has temporarily waived its ban, it will soon become illegal for Elizabeth to continue. Interestingly, if she had no qualifications whatsoever, New York would allow her to work as an unlicensed "life coach." But precisely because of her extensive training, her speech is verboten. That's an irrational and unconstitutional restriction on Elizabeth's First Amendment rights, so this week she joined with IJ to sue New York. Click here to read more. (Elizabeth is also challenging a similar restriction in D.C. that bars her from taking on new clients.)

NEXT: The Tenth Rule of Court Packing Is Play Your Base By Appointing A Well-Balanced Commission With No Actual Mandate

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  1. Doesn’t Iowa have a mandatory seat belt law?

    And if so, absent a statutory exemption, isn’t that relevant?
    Although I’d suspect being exposed to gunfire while handcuffed would be an interesting PTSD claim…

    1. Violation of the seat belt law is negligence, not a constitutional claim. Or evidence of negligence. Or perhaps not even that. When some states adopted seat belt laws they excluded them from the usual rules of negligence because tort lawyers didn’t want their unbelted clients tossed out of court.

  2. What’s the matter with Kansas? The inexplicable absence of prosecutorial discretion combined with the stubborn idiocy of its supreme court are reason enough to live somewhere else, particularly if you have a child entering adolescence with more hormones that judgment.

    1. “absence of prosecutorial discretion”

      Its not absent, its just exercised in a way you don’t like.

      1. In what universe does a prosecutor charge two 14 year olds for having consensual sex and put one of them on the registry for life? Yes, I recognize that 14 year olds cannot lawfully consent to sex, something they often do anyhow, but the solution is to prosecute adults when they are involved, not to stain the kids for life with felony charges as juveniles. So yes, a sensible prosecutor has better things to do, even in Kansas.

        1. “In what universe”

          Ours?

          Kansas, USA, Earth, Milky Way

          Talk to the legislature, they passed the statutes.

          1. That contradicts your first point about the prosecutor having discretion. Either he does have discretion in which case he has some
            responsibility in exercising it. Or he doesn’t have it and his charging decision is entirely the fault of the legislature. Which is it?

            1. I don’t see a contradiction. He had discretion only because there was a law in the first place.

              The ultimate responsibility is the legislature’s. No applicable law, no prosecution.

              1. If he has discretion then he has some form of moral responsibility for using it and is therefore blameworthy or praiseworthy in how he chooses to exercise it.

                1. “If he has discretion then he has some form of moral responsibility for using it and is therefore blameworthy or praiseworthy in how he chooses to exercise it.”

                  I certainly don’t think the conduct at issue here should be criminal.

                  But is mere disagreement with the law a sufficient reason to exercise discretion? There’s an argument that is should be, but many people don’t see it that way. It’s certainly conduct that the legislature chose to punish, and assuming that the prosecutor had the resources, etc.

                  1. It doesn’t matter to my point. There are good reasons and bad reasons, legal reasons and moral reasons, policy and political reasons that might guide discretion. The fact is if it exists, you’re responsible for exercising it. You can’t pass the buck to legislature completely. You have to take responsibility for what you do.

              2. As much as it might pain me to admit it, I kind of agree with Bob on this – there’s no contradiction.

                Both the prosecutor and the KS legislature are equally, horribly, at fault for this f***ed-up result.

                I’ve got two teenage daughters and I want them nowhere near this sort of mentality or jurisdiction.

                1. I think you’re more with me: you can (and should) blame both of them. Prosecutor for exercising their charging discretion in a poor manner, and the legislature for having the law the way it is.

                  1. Yep. Completely concur.

                    It’s just that “they both suck” means Bob is (technically, accidentally) correct that there’s no inherent contradiction.

                2. “As much as it might pain me to admit it, I kind of agree with Bob on this – there’s no contradiction.”

                  Here’s a contradiction… we start by assuming that minors lack the mental capability to form consensual sexual relationships, but they HAVE the mental capability to form nonconsensual ones, which is a criminal act.

                  1. “Here’s a contradiction… we start by assuming that minors lack the mental capability to form consensual sexual relationships, but they HAVE the mental capability to form nonconsensual ones, which is a criminal act.”

                    Thank you.

                    The law should pick one or the other. It shouldn’t pick both because they’re mutually exclusive.

        2. Kansas does not require lifetime sex offender registration for this offense, and might not require registration at all on the facts of this case.

          1. But will a judge take the chance on being labeled “soft on sex crime” and declining to order registration?

        3. As with alcohol, I love holding people legally accountable for deciding to do things the law says they are not mature enough to decide to do.

  3. That Kansas case is pretty messed up. It started as a rape investigation into TC of KG. The cops interviewed KG, the alleged victim. KG tells the cops she told AB about the incident because AB also had sex with TC….so the cops charge AB…with having sex with TC the alleged rapist of KG. What?!

    The district court judge, bound by a precedent, dismisses the first case that was the less severe offense. So the state charges the higher offense. Court dismisses that because it creates a disparity where the younger participant can only be ever charged with a higher felony than the older one for the exact same conduct. Seems correct.

    But Supreme Court says: that was a stupid precedent (which the district court had to follow) which creates an absurd result. This is likely correct as a statutory interpretation goes. But it goes on to reverse the dismissal and reinstate the more severe charge, even though that charge would likely not have been brought if the appeals court hasn’t butchered the statute.

    The district court and defense get reversed for trying to do the right thing: follow precedent and maintain equal protection. And for its trouble there is a unanimous reversal that leaves the defendant in a worse position than before: still on the hook for the higher offense that they used as a back-up.

    What a joke. What a horrible outcome.

    1. In Massachusetts there isn’t even a “Romeo and Juliet” law to lessen the penalty. It’s full fledged mutual rape if they are under 15. The only case I can think of offhand (in Milton) the 15 year old boy was not charged with raping the 15 year old girl who gave him head, but the older boys were charged.

    2. When I saw there was a concurrence, I thought at least there’s someone who’s going to note that the outcome is horrible but maybe they’re constrained by the law or the Kansas Constitution or whatever. But NOPE, just some rant about the fact that the majority thinks that some deference should be given to constitutional precedents. Sigh.

      Fortunately, it does seem like there’s some claims in the case under the US Constitution, so at least there’s another channel for appeal.

      1. Unfortunately I don’t think this will make a good case for Cert. There probably isn’t a higher court split on any of the federal constitutional issues raised. I think the Kansas court should have figured out some sort of better remedy, given the unique injustice at work here. Maybe craft a rule that says: when the trial court correctly makes a dismissal based on a binding precedent the Supreme Court later finds erroneous, the dismissal still stands or stands without prejudice. Or something.

      2. There is an approximately 0% chance of this defendant receiving an form of relief from a federal court.

    3. And for its trouble there is a unanimous reversal that leaves the defendant in a worse position than before: still on the hook for the higher offense that they used as a back-up.

      Unless I’m missing something, isn’t the defendant in the same position as before? (I would also imagine that the prosecution might also try to reinstate the original charge since it’s now clear that they can.)

      1. Before the Supreme Court got involved they weren’t going to be charged with anything. Now they can be charged with two crimes (although I assume they merge for sentencing purposes).

  4. South Dakota man spends 10 years in prison for vehicular homicide after he rolls his Corvette, killing the passenger. Whoops! Witnesses later confirm that he was the passenger and the dead woman was the driver. He’s released and sues, alleging that the reckless investigation by the trooper who found him violated his constitutional rights. Eighth Circuit: The trooper found the victim on the passenger side of the car and the plaintiff outside the car near the open driver-side door, and the witnesses didn’t come forward until years later. It’s hard luck, but it doesn’t shock the conscience.

    It seems to me that as a policy matter (I am not saying this is what Section 1983 requires), if an actually innocent person (I’m not talking about people whose guilt isn’t proved beyond a reasonable doubt, but more cases such as the mistaken identity case here where we know the original defendant is innocent) is imprisoned, it should be strict liability. The government should compensate the person. The person was innocent, and had years of his life taken away from him by the government. Who cares what level of fault was involved?

    Such a rule would also create the right incentives with respect to not imprisoning innocent people in the first place.

    1. Some states have varying administrative and judicial compensation schemes. Some of which are more generous than others. I once spoke to an exonerated death row inmate from Florida who only got $100 and fresh pants but I guess that happened before they adopted a real scheme for this.

      https://www.law.umich.edu/special/exoneration/Documents/CompensationByState_InnocenceProject.pdf

      Some of these schemes are awful (WTF Wisconsin and Montana) some of these are pretty generous although I didn’t delve into all the procedural hurdles.

      1. North Carolina kept this guy in 44 years, and is only compensating him for 15.

        https://www.yahoo.com/news/north-carolina-just-paid-man-160319311.html

    2. That’s my general view: Government, if it’s going to prosecute people, has a moral obligation to make them whole if they turn out to be innocent.

      Even if it happens many years later.

  5. Lee County, Iowa officer who is transporting a handcuffed and shackled but not seatbelted prisoner in his cruiser responds to bank robbery in progress. Prisoner: The officer drove through a rutted, unmaintained lot, tossing me around violently and causing injuries to my neck and back. Officer: I was only going 20 to 25 mph, though I did turn abruptly when the robber fired at the cruiser. District court: A jury should sort this out. Eighth Circuit: Reversed. The officer may have been negligent, but negligence isn’t enough to impose liability here.

    Given the history of cops “giving suspects the rough ride” (a practice that is so well known it has its own Wikipedia page, https://en.wikipedia.org/wiki/Rough_ride_(police_brutality) , and which was widely discussed in the wake of the Freddie Gray incident), courts should not be so credulous about whatever the cops say in these situations.

    1. So you think he intentionally tried to get shot at in unpaved lot so that he could jostle the passenger? That is one vindictive cop!

      1. No, I think he intentionally failed to buckle the suspect’s seat belt so that whatever happened on the drive, the suspect would take the worst of it.

      2. It’s certainly not obvious that bringing a prisoner into a dangerous situation, especially after negligently failing to strap him in, isn’t deliberate indifference.

        I mean,
        “There is likewise no evidence that Sproul either knew of or disregarded a substantial risk that during the “really quick chase” the suspect would shoot into the patrol car and strike the windshield, radiator, and driver’s side door, that Sproul would need to turn sharply to avoid gunfire, and that Stark would thereby be injured.”

        The dude’s chasing a bank robber, ffs.

        1. Right. And I think you even are being a little nice when you say “negligently” failed to strap him in. There’s no reason we shouldn’t treat the failure to buckle a suspect in as deliberate, not mere negligence, especially given what everybody knows about police “rough rides”.

  6. ” Though he’s unconscious, another officer tases him. ”

    We need to find a way to attract a better class of people to law enforcement — fewer trigger-happy, petty authoritarians looking for the respect they are unable to get without a badge and gun.

    Maybe fewer bigots and insurrectionists, too.

    We also need to provide better training, management, accountability, and equipment while seeking better temperament, better character, better education, better judgment, etc.

    1. “We need to find a way to attract a better class of people to law enforcement”

      Remove their authority to use force free of consequences.

  7. What happens in Clay County, Kansas (pop. 8,535, 98 percent White) stays in Clay County, Kansas — except for all of the smart, ambitious young people, who have been fleeing at high school graduation for generations, seeking the education, opportunity, and modernity that must be found elsewhere, never to return.

    It is called bright flight.

    Imagine the district attorney, police, and judge in a place like county seat and largest “city,” Clay Center (pop. 4,334).

    1. Maybe that’s why the city is going after the 14 year olds. Even the bright ones don’t yet have the resources to flee.

  8. to prosecuting a 14-year-old girl for having sex with a 14-year-old boy (who was older than her by several months).

    If ‘she’ is old enough to change ‘her’ sex, ‘she’ should be old enough to use whatever sex ‘she’ determines is ‘hers’

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