Short Circuit: A Roundup of Recent Federal Court Decisions

3D printed guns, elite schools, and a colossal screw-up.


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

In Hamen v. Hamlin County, the South Dakota Supreme Court recently grappled with the question of whether an innocent property owner should get a remedy, in the form of just compensation or damages, for a SWAT raid that destroyed parts of a mobile home and cost the property owner $20k to repair. (Turns out the suspect wasn't in the home). It's a question that IJ is litigating right now in a separate case. And it's also a question that has divided federal and state courts, writes IJ Attorney Anya Bidwell over at the Federalist Society's State Court Docket Watch.

  • Boston's School Committee revises admissions procedures for the city's three most elite public schools, switching from a primarily GPA-based procedure to a procedure that also incorporates student income and zip code. A coalition of parents and students sue, alleging that the changes discriminate against white and Asian students. After losing a request for a preliminary injunction, the coalition seeks an injunction pending appeal. First Circuit: Which we deny. The policy may result in reduced white/Asian admission, but it is based on race-neutral criteria and was not a pure proxy for race.
  • Harvard Law grad with a variety of learning disabilities is denied testing accommodations for the New York bar exam, fails twice, losing a prestigious law firm job as a result. After passing the exam on a third attempt (this time with accommodations), the young lawyer sues, alleging violations of the federal Rehabilitation Act. Second Circuit: But the suit is barred by 11th Amendment immunity. An exception for state agencies that receive federal funds covers only the state's Courts of Original Jurisdiction, which receive funds but do not supervise the bar.
  • In 2012, state and federal authorities in Maryland begin investigating a chain of pharmacies for Medicaid fraud. Search warrants are executed. Pharmacies are shuttered. Owner is indicted. Owner is convicted. Government demands 12 years' imprisonment followed by deportation. After which Owner is . . . granted a new trial? After it turns out the inventory calculations the prosecutors used were fundamentally flawed? And then it turns out the government destroyed three boxes of key documents as "part of a general cleanup of boxes of paper"? Which leads to the criminal court's dismissing all charges? And NPR's using the phrase "colossal screw-up" in a headline about the case? Yikes! Fourth Circuit: Yikes it may be. But the pharmacy owner can't bring Bivens claims against any federal officials because (all together now) "these claims would extend the Bivens remedy into a new context." Also, the state prosecutor who was seconded to the federal case is entitled to absolute immunity for allegedly fabricating evidence and spring-cleaning other evidence out of existence.
  • Pretrial detainee in Bell County, Tex. jail is initially deemed a suicide risk, but the jail's mental-health contractor takes him off suicide watch and places him in gen pop. He hangs himself two days later. His mother sues the mental-health professional, alleging deliberate indifference to her son's serious medical needs. District court: Qualified immunity. Fifth Circuit: Wait. The mental-health professional was an employee of a private contractor, not the gov't. So no qualified immunity. And there's at least a fact question about whether the professional violated the detainee's rights. To trial the case must go.
  • Early in the pandemic, some sellers on Amazon reportedly began charging outrageous prices for N95 masks and other essential goods. In Kentucky, the state's attorney general launches investigations into Kentucky-based sellers for violating the state's price-gouging laws. The Online Merchants Guide sues the AG, invoking the extraterritoriality strand of the dormant commerce clause. Yes, you heard that right. Extraterritoriality! Buckle your seatbelts, gang. (In all seriousness, the extraterritoriality doctrine is endlessly fascinating.) District court: That seems like a winning theory; preliminary injunction. Sixth Circuit: We disagree. Any effect on out-of-state commerce is not the result of Kentucky's law, but of Amazon's pricing structures. Preliminary injunction vacated.
  • Pursuing a suspect, St. Louis police officer says that he's "going to kill this m***f***, don't you know it"—which he does. The officer is acquitted of murder; protests and riots erupt. Police order people to disperse, deploy mace, and arrest scores of people. The trial court enters a preliminary injunction that has now been in effect for more than three years. Eighth Circuit: Too long. The case needs to be resolved on the merits, so the preliminary injunction must be dissolved or replaced with a permanent injunction within six months. We're also super dubious of the merits of the claims.
  • The Speedy Trial Act, which was enacted to effectuate the guarantees of the Sixth Amendment, sets time limits for steps in the criminal adjudication process and enumerates delays that may toll those limits. One delay covers when the "ends of justice" outweigh the interest in a speedy trial—and it's been flexed a lot during the pandemic. The Ninth Circuit brings us a pair of cases interpreting this language. In the first, the court holds that a pretrial detainee who has been held since August 2019 can continue to be held for a little longer under the Speedy Trial Act, but not much longer under the Due Process Clause. And in the second, the court reverses the dismissal of an indictment of a defendant who had been granted bond and had obtained eight trial continuances before jury trials were suspended.
  • Everyone agrees Art Tobias did not kill Alex Castaneda. But that consensus was reached only after Los Angeles police interrogated the then-13-year-old, ignored his request for a lawyer, and convicted him on the basis of his false confession. Ninth Circuit: Qualified immunity can't save you here. When a suspect says, "could I have an attorney," you have to let him see an attorney. And at least one officer employed unconstitutionally coercive interrogation techniques as well.
  • In 2020, the Department of State removed 3D-printed guns from its "Munitions List"—a de-listing that would ease various regulatory restrictions on said firearms. Twenty-two states plus D.C. sued, and a district court enjoined the change. Ninth Circuit: Congress has provided that decisions to add firearms to the Munitions List "shall not be subject to judicial review," and that necessarily covers decisions to remove firearms from the list as well. Dissent: Jurisdiction-stripping provisions should be narrowly construed, not extended beyond their plain language. (Also dissent: On the merits, the Department's rulemaking procedure violated the APA because the agency deliberately hid the fact that its proposed rule would encompass 3D-printed guns until after the comment period had closed.)
  • Two California men are charged with murder based on the testimony of a confidential informant. Although the informant testifies at a preliminary hearing, during trial he invokes the Fifth Amendment and refuses to answer any questions. The court admits the man's testimony from the preliminary hearing; the two defendants are convicted and sentenced to life. They seek habeas review, alleging a violation of the Confrontation Clause. Ninth Circuit: The Defendants' lawyer got to question the witness at the preliminary hearing, even if the trial judge cut off some of that questioning. It wasn't unreasonable for the state courts to find no Confrontation Clause violation.
  • Nonprofits petition the EPA in 2007 to ban foods containing an insecticide, chlorpyrifos. EPA takes 10 years looking into it, finds evidence that the chemical is indeed bad, but doesn't issue a rule, just delays everything. The Ninth Circuit says this was "a total abdication" of its statutory duties and orders it to you-know-what or get off the pot within 60 days. Dissent: Yeah, EPA took way too long, but wasn't arbitrary and capricious in this very technical case.
  • And in en banc news, the D.C. Circuit will reconsider its decision that neither the "procedural" nor the "substantive" aspects of the Due Process Clause apply to a Yemeni citizen who has been held at Gitmo without trial for more than 16 years.

This week, a federal judge in Tampa ruled that a $30k fine for too-tall grass is not an unconstitutional excessive fine, nor does it violate due process to decline to notify a property owner that he was racking up $500-per-day fines. It all started in in 2018, when Jim Ficken was out of town handling his late mother's estate. He'd hired a friend to mow the lawn at his house in Dunedin, Fla., but the friend passed away unexpectedly. Jim mowed the grass as soon as he realized what was going on, but city officials refused to reduce the fine and even voted to authorize foreclosure of his home when he, a retiree on a fixed income, didn't pay. Jim will appeal the district court's decision. Read more here.

NEXT: George Mason University President Planning on Illegal Race Discrimination in Faculty Hiring

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  1. The Court read the plain English of the Eleventh Amendment, then made up an interpretation barring its application.

    The Eleventh Amendment of the United States Constitution provides that “[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State[.]” U.S. Const. amend. XI. “Although by its terms the Amendment applies only to suits against a State by citizens of another State,” the Supreme Court has “extended the Amendment’s applicability to suits by citizens against their own States,” as “[t]he ultimate guarantee of the Eleventh Amendment is that nonconsenting States may not be sued by private individuals in federal court.” Bd. of Trs. of the Univ. of Ala. v. Garrett, 531 U.S. 356, 363 (2001). The Board of Law Examiners, as an “‘arm[]’” of the State of New York, “share[s] in that immunity,” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 US. 139, 144 (1993).

    Eleventh Amendment immunity is “not absolute.” Garcia v. S.U.N.Y. Health Scis. Ctr. of Brooklyn, 280 F.3d 98, 108 (2d Cir. 2001). “When providing funds from the federal purse, Congress may require as a condition of accepting those funds that a state agree to waive its sovereign immunity from suit in federal court.” Id. at 113. Congress did so when it enacted Section 504 of the
    11 Rehabilitation Act. See 42 U.S.C. § 2000d-7 (“A state shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal Court for a violation of section 504 of the Rehabilitation Act of 1973[.]”).

    The Court should understand formal logic. The contrapositive of a true assertion is always true. Liability replaces violence as a remedy for injury. If that is true, then immunity is a full legal justification for violence. I oppose violence, so I support making states liable to their own citizens.

    Why would the lawyer oppose getting rich this way? Because government is a wholly owned subsidiary of the lawyer profession.

    1. The power to tax away monstrous amounts of money, then require you, or states, to give up fundamental constitutional rights, rights the federal government was not given the power to abolish directly, to get the money back, is construction of powers from others that’s forbidden.

      The sophistry is expansive winking as the politicians lie about the real reason for these things.

    2. “An exception for state agencies that receive federal funds covers only the state’s Courts of Original Jurisdiction, which receive funds but do not supervise the bar.”

      That only applies to Section 504 — What I fail to understand is why Title II (or perhaps Title III) of ADA doesn’t apply as neither are conditioned on Federal funding. Here is the technical assistance manual:

      If it is an entity of the State of New York, it comes under Title II — and if itsn’t — but is a public accommodation (which it is) then it comes under Title III — and either way, it applies.

      1. What I fail to understand is

        oh, so many things.

  2. 1) So…. is disparate impact a thing or not?
    2) It’s like people don’t understand the point of a standardized test
    3) oh NOZ! Not high prices!
    4) “The trial court enters a preliminary injunction” on WHAT? Not at all clear from the blurb
    5) Since when do defense lawyers have to make a full-throated defense at a preliminary hearing?
    6) Using courts to make agencies make rules? Isn’t that like double delegation?

    1. Your comment beat mine to the “disparate impact” question. I commend the court for trying their hardest, and coming up with something that sounds legally valid, but also is logically stupid, as a way to justify their decision.

      1. I mean if conservatives in the courts didn’t spend years criticizing the concept and insisting that racially neutral laws can’t be racist, maybe this wouldn’t have happened.

        1. This rule isn’t racially neutral. This rule change is designed, by the admission of the people making it, to foster “racial equity” and change the race ratios in those schools.

          The huge problem with ‘disparate impact’ as applied by the Leftist activists is that is falsely assumes that all racial groups have the exact same population distributions in all other factors and therefore only race can explain differences – something that is almost never true.
          That particular lie needs to be obliterated wherever it appears.

          1. “This rule isn’t racially neutral. This rule change is designed, by the admission of the people making it, to foster “racial equity” and change the race ratios in those schools.”

            Taking away an advantage you used to benefit from is not the same as imposing a challenge you have to overcome. Lowering basketball rims from 10 feet to 5 feet might help short people make basketball teams. That’s not the same thing a saying that lowering the rims to 5 people is against tall people.

            1. First off, in many cases these are the same thing. Removing your salary and giving you no more work is the same as firing you, even though pay and constructive work are merely “advantages” you have over employed people. Doing so because of someone’s race at a public school system will quickly get you into hot water.

              Taking away a racially neutral way of choosing students (grades and test scores), and putting in place a method designed to exclude whites and asians in preference of blacks, is not “taking away an advantage”.

              Unless you think “Not being racially discriminated against” is an advantage that it’s ok to get rid of? That’s what you seem to be arguing here.

        2. As asked, is it a thing or not?

          1. relevant or not?

    2. If you’re talking the affirmative action by ZIP code decision, unless they are going to reverse the Duke Power Systems decision, this is bullshyte.

      Now reversing Duke would be a really good thing….

      1. Griggs was about employment; this is not. So what does it have to do with this?

  3. “Two California men are charged with murder based on the testimony of a confidential informant.”

    As to the Rules of Criminal Procedure, under no circumstances should any decision let alone a verdict be based on testimony, unless confirmed by reliable physical evidence. Human memory is not like a recording. It is also subject to introduction of false memories by police interrogators. Such negligence should be deterred.

  4. “shall not be subject to judicial review,”

    More statutes should contain that phrase. Maybe most.

    The jurisdiction stripping/regulation authority granted to Congress has been criminally under utilized. Its allowed the courts to get too powerful.

    1. “More statutes should contain that phrase. Maybe most.”

      All you’d do is cause the Supreme Court to flex and find that limiting their judicial review power is counter to the Constitution, which vests the judicial power in the USSC.

  5. “The policy may result in reduced white/Asian admission, but it is based on race-neutral criteria and was not a pure proxy for race.”

    Sounds like the defense of red-lining.

    “It’s not that they’re Black. They just don’t meet our criteria for a loan.”

    1. It is red-lining. Just excluding those on the other side of the line this time.

  6. “This week, a federal judge in Tampa ruled that a $30k fine for too-tall grass is not an unconstitutional excessive fine, nor does it violate due process to decline to notify a property owner that he was racking up $500-per-day fines.”

    A Black woman, appointed by Obama. Too bad for Mr. Ficken he wasn’t a NIPOC.

    1. You know, I found the description of the facts so outrageous that I went on Pacer and read the actual MSJ. As it turns out, the homeowner is a repeat code scofflaw going back to 2007. I guess one shouldn’t necessarily take at face value case summaries prepared by partisans.

      One can argue that even so, 30k for tall grass is a bit much. But this deciduous not as outrageous as the description of it here would suggest.

      1. “Decision is not as outrageous” not “deciduous”. Damn auto correct

        1. I dunno, if the grass were deciduous, maybe it wouldn’t have gotten so overgrown!

          1. The HOA will come after you for deciduous matter on your lawn, too.

        2. Dude, when you make a pun, even by accident, own it. It wasn’t half bad.

    2. Sorry. That’s BIPOC, isn’t it. Please don’t cancel me.

      1. Who said that?

  7. The KY case is interesting, not because of the outcome though. On Contracts Prof blog the other day, there was a discussion of conservative states that are surprisingly liberal when it comes to consumer protection. And here, KY seems to be yet another example of that.

    1. Don’t confuse populism with conservationism.

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