The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Political patronage, palpable anger, and a misbehaving confidential informant.
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
Do you have a hankering for some excessively fine scholarship? Then check out IJ Senior Attorney Wesley Hottot's recent piece on the Excessive Fines Clause in the Alabama Law Review.
- After suffering a football injury in 1975, 15-year-old boy is injected with Pantopaque, a radiocontrast dye used in spinal imaging. In 2014, he is diagnosed with adhesive arachnoiditis, a progressive disorder of the spine—linked to Pantopaque—that leaves him without use of his legs. He sues Kodak, the manufacturer of the dye. Third Circuit: You're out of luck. Kodak's 2012 bankruptcy restructuring eliminated your claim. And arguments that Kodak's public notice of the bankruptcy should have been more specific regarding Pantopaque are unavailing.
- North Carolina man is charged with various fraud counts stemming from an investment scam. According to the man, the gov't offered him a plea deal with a zero-to-five-year imprisonment range, but his defense lawyer "guaranteed" him that he'd get no more than five years' imprisonment if he went to trial. He goes to trial, gets convicted, and is sentenced to 26 years. Yikes! Ineffective assistance of counsel? Fourth Circuit: Maybe. At a minimum, the man's entitled to an evidentiary hearing.
- For over five years, a restaurant manager in Conway, S.C., effectively enslaved an intellectually disabled man and forced him to work 100-hour weeks for no pay. The manager is convicted of violating the Trafficking Victims Protection Act, sentenced to 10 years' imprisonment, and ordered to pay restitution of roughly $273k (representing unpaid minimum wages and overtime). Gov't: The manager also should be required to pay an additional $273k in "liquidated damages," as contemplated by the Fair Labor Standards Act. District court: Nope; those liquidated damages are appropriate only in civil cases, not criminal ones. Fourth Circuit: Incorrect. Pay up.
- San Antonio, Tex. police officers approach a man walking on a highway median. The man appears to be mentally disturbed but does not resist them. Officers handcuff him and place him face-down on the pavement. Two officers then kneel on him for five and a half minutes, with two additional officers using their hands to hold him down. He dies of asphyxiation. District court: Qualified immunity. Fifth Circuit (with each judge writing separately): No qualified immunity on the excessive-force claim, which must go to trial.
- In an apparent suicide-by-cop, Tennessee woman calls police to inform them that she is depressed, armed, and suicidal and that she'll shoot anyone who approaches her house. When police arrive, she leaves the house holding a gun (later determined to be a BB gun) in an outstretched arm while walking towards her car. Police shoot her eight times, killing her. District court: No qualified immunity because the gun was never pointed directly at the officers. Sixth Circuit: Seeing the video, we think the police acted reasonably. Qualified immunity.
- In which the Sixth Circuit drops some history about Sir Walter Raleigh and the origins of the Confrontation Clause, and an accused murderer gets a new trial because, although the accused was allowed to confront the witness against him, he wasn't allowed to present all of her testimony to the jury (for instance, that she was testifying because she was afraid of being incarcerated if she didn't).
- After an Ohio man is convicted of rape by cunnilingus, a juror informs the court that a fellow juror introduced outside evidence that the defendant was from Sierra Leone and had a criminal record. Sixth Circuit (over a dissent): Because all the physical evidence was inconclusive, this case came down to he-said/she-said, and witness credibility was paramount. The man may be entitled to a new trial.
- Tennessee woman enters into plea agreement in which she accepts a conditional sentence of 14 years' imprisonment for meth distribution, with the understanding that the government may seek a downward variance if she helps in the prosecution of her co-conspirator. After her plea, the government drops all charges against the co-conspirator, alleging unidentified misbehavior by the confidential informant (the same one from the woman's case). The woman seeks to review the evidence of misbehavior or at least have the judge review it in camera. The court instead asks the prosecutors if they promise they complied with all Brady requirements, and the prosecutors super-duper promise. Sixth Circuit: Which is fine. She's stuck with the plea, and the government is under no obligation to seek a downward variance.
- For nearly 50 years, the city of Chicago has been subject to federal consent decrees meant to prevent political patronage. According to the Seventh Circuit, this "entrenched federal oversight should have raised red flags long ago," and it must end soon. But Chicago still seems to be making life miserable for certain apolitical employees. So soon is not today.
- Suppose you were a debt collector who went to court to recover a debt. But then, at summary judgment, you couldn't prove that the debt existed. And what if that failure was due to your own lack of pre-suit investigation? And what if you had filed the same kind of meritless lawsuit many times before? And then you asked for extra discovery and a chance to go to trial? The Seventh Circuit would probably be pretty chill about it, right?
- Missouri apartment goes up in flames. But the insurance company won't pay, instead suing the renters for allegedly setting the fire themselves and lying about how much property the fire destroyed. The district court excludes from trial evidence that one of the renters had three felony convictions (per the criminal-court briefs, rape and two counts of sodomy for abusing his minor cousin). The jury rules for the renters. Eighth Circuit: New trial. The case hinged on whose story the jury believed—the renters' or the insurance company's—so witness credibility is paramount, and felony convictions are highly probative.
- Ironhawk, a technology company, markets its data-transferring software as "SmartSync"—a name it trademarked in 2007. A decade later, Dropbox launches "Smart Sync," a feature that allows users to access files in the cloud. Did Dropbox infringe Ironhawk's trademark? Ninth Circuit (over a dissent): A jury could well conclude that consumers would be confused between the two products, so back down for a trial the case goes. Dissent: Ironhawk, whose only customer is the U.S. military, isn't targeting ordinary consumers and its product is very expensive—consumers aren't going to be confused.
- You might think an appeal over a $14k reduction in attorney's fees would be dull, but then you wouldn't have read this Ninth Circuit decision following a longshoreman death benefit award. Among other things, the panel calls out the ALJ for "palpable anger" with the claimant's attorney—and directs the case be assigned a new ALJ on remand.
- In 1992, a local television reporter began investigating allegations that a Catholic priest in Albuquerque, N.M., had sexually abused young boys. The priest promptly absconds to Morocco for the next quarter-century. In 2018, he's brought back to the U.S. to face trial (and admits to some of his crimes while on the flight home with the FBI). He's convicted and sentenced to 365 months' imprisonment. Priest: There were all sorts of problems with the jury and the trial and the sentence. Tenth Circuit: No. The conviction and the sentence stand.
- Man of Pakistani descent serves as an organization's executive director and acts in something of a creepy manner towards a female subordinate and a visitor. He's fired. Discrimination based on race? Tenth Circuit: Yeah, maybe. The record suggests that a similarly situated white guy behaved inappropriately towards a female subordinate too, and that guy wasn't fired. To trial the case must go.
- Senior advisor for the 2016 Trump presidential campaign impregnates campaign spokesperson. Paternity and custody proceedings ensue, in which the mother files a supplement stating that the father had previously had an affair with a stripper, impregnated her, and secretly plied her with an abortion pill. (The father and the stripper deny everything.) The website Splinter promptly reports on the (possibly sealed) filing, and the father sues the site and the author for defamation. District court: New York law, which applies here, protects against defamation for any "fair and true report" of a judicial proceeding, including reports of filings like the supplement at issue here. Eleventh Circuit: Affirmed.
Are you a fan of Fourth Amendment violations? Neither is IJ Senior Attorney Rob Frommer, who has penned an op-ed in the Orange County Register about the FBI's recent seizure of a swath of security-deposit boxes in southern California.
