Short Circuit: A Roundup of Recent Federal Court Decisions

Drone advisories, wrong-door raids, and the Holy Spirit in the jury room.

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

Comply first, complain later. That's former U.S. Attorney General William Barr's advice for citizens facing overzealous law enforcement. And that's just what José Oliva, an unarmed, unresisting Vietnam vet, did as federal security officers put him in a chokehold and slammed him to the ground, causing life-altering injuries. José complied, but last year the Fifth Circuit said he can't complain, dismissing his lawsuit because, the court ruled, there is no constitutional remedy for excessive force by federal officers. Now José and IJ are asking the Supreme Court to take a look and reverse. Click here to read more.

  • The Federal Advisory Committee Act requires that any committee established to advise a federal agency make its records publicly available. The Drone Advisory Committee (which provided advice to the Federal Aviation Administration about, well, drones) created four subgroups, which provided advice to the committee but never directly to the FAA. Are those subgroups required to make their records available? D.C. Circuit: No. Dissent: There are allegations that the FAA used the subgroups to circumvent the Federal Advisory Committee Act, so they should be deemed advisory committees in their own right.
  • Man charged with pepper spraying Capitol police on January 6 seeks to be released before trial. Man: I have non-Hodgkin's lymphoma and thus am at increased risk of contracting COVID-19. D.C. Circuit: Well, now that you've tested positive for COVID-19, you're no longer at increased risk of contracting it. You can ask the district court if the diagnosis itself merits pretrial release. (h/t: @ZoeTillman.)
  • Readers may recall Todd Bank, the attorney who set the speed record for torpedoing an oral argument in the Second Circuit in 2019. Second Circuit Grievance Panel: His prize is a public reprimand. (Separately, what's the story behind all these amicus-brief bounce-backs? Perhaps Supreme Court Rule 37.2(a)? Or 37.2(b)? Or 37.6?)
  • Allegation: New York inmate first asks, and days later begs, to be seen by a doctor. Still more days later, when he begins passing in and out of consciousness, he is finally taken to the hospital, found to be in critical condition, diagnosed with diabetic ketoacidosis, given a 10 percent chance of survival, placed in a medically induced coma, subjected to multiple surgeries, and kept hospitalized for more than a month. Once back in jail the man files a grievance about his treatment. Prison officials: Sorry, our rules are that you have to file grievances within five days of the event. District Court: And you can't sue, because you didn't follow the grievance procedure. Second Circuit: The Prison Litigation Reform Act requires only that prisoners exhaust "available" administrative remedies, and this one ain't that.
  • Inspector at the Nuclear Regulatory Commission is worried about safety at the Diablo Canyon Nuclear Power Plant (which, to be fair, does have the name of a place where things would go horribly wrong). He raises his concerns—and then is denied promotions. Can he get damages based on whistleblower protections? Fourth Circuit: Nope. Congress hasn't waived sovereign immunity for complaints against the NRC.
  • Allegation: Texas inmate tells prison guards that he is being threatened by a sexually violent inmate and asks to be reassigned to a different cell block. Fully aware that snitches get stitches, the guards require him to identify the man in front of other inmates. The assistant warden then denies the transfer because he is a snitch. And, in short order, he is assaulted by the violent inmate who tells him he "never should have reported him." He files a lawsuit pro se. District court: Dismissed sua sponte. Fifth Circuit: Being violently assaulted is not a legitimate part of criminal punishment. You're going to look at the merits of this one.
  • In 2015, the federal government charged a Houston man with helping one of his friends join ISIS. He pleaded guilty. District court (2018): Eighteen months' imprisonment. Fifth Circuit (2019): The district court wrongly held that the sentencing guidelines' terrorism enhancement did not apply. Remanded for resentencing. District court (2019): Eighteen months' imprisonment. Fifth Circuit (2021): Seriously? No. That's substantively unreasonable. Remanded for another resentencing. Also, in referring to government lawyers (in general) as "chip-on-the-shoulder jerk[s]," "self-important retarded—I take that back; retarded people have a justification[—people]," and "useless government bureaucrats," the district court displayed a level of prejudice against the government. The case is to be reassigned to a different judge on remand. (NB: This is at least the fourth time in recent years that the Fifth Circuit has reassigned cases away from Judge Lynn Hughes.)
  • Seventh Circuit: We don't usually grant habeas relief based on statements a prosecutor made during closing argument, but insinuating that the reason a witness recanted his previous testimony was because he was threatened by a private investigator working for a co-defendant—when the testimony doesn't support that—will do it. Dissent: But the testimony does support it, as the state courts reasonably concluded.
  • In 1989, a masked man stops three boys biking home from a Stearns County, Minn. convenience store. He forces two of the boys to run away and abducts the third, who is never seen again. Decades later, investigators set their sights on a neighbor who had repeatedly publicly criticized the investigation. He alleges that they search his house and identify him to reporters as a person of interest in retaliation for his criticism. Nothing comes of the search, and several years later—27 years after the abduction—another man confesses to molesting and murdering the boy. Eighth Circuit: The neighbor filed his retaliatory-search claim too late, as he didn't need to wait for the killer to be discovered. (May we suggest a truly excellent podcast on the story?)
  • The social-media app Snapchat has a speed filter, meaning users can send pictures of themselves with the speed that they were traveling at the time superimposed on top. Three Wisconsin teenagers, allegedly spurred by this feature, hit 123 mph before running off the road and crashing into a tree. Can their grieving parents sue Snapchat for negligent app design? Ninth Circuit: Well, Section 230 of the Communications Decency Act isn't a bar. That law is about protecting tech companies from defamation claims based on user-generated content, not product liability. The parents are still going to have to prove that the app caused the accident though.
  • "This case presents a novel and important question in the law governing retirement benefits: whether the federal Employee Retirement Income Security Act of 1974 (ERISA) . . . preempts a California law that creates a state-managed individual retirement account (IRA) program." The answer, per the Ninth Circuit, is no.
  • New Mexico inmate collapses and suffers a seizure while in the prison yard. Other inmates, familiar with her seizure disorder, rush to help her, holding her down on the ground. Guards rush out, mistake the scene for a fight, and mace the good Samaritans, who sue. Tenth Circuit: We saw the video (which lacked audio) and, unfortunately, when a bunch of inmates are holding down a flailing fellow inmate and everyone is screaming, it really does look an awful lot like a fight. The officers acted reasonably.
  • Feds investigating suspected drug conspiracy among Leavenworth, Kan. inmates and guards obtain—and keep—recordings of conversations between inmates and their attorneys. The district court determines that the prosecutors involved in the investigation might've violated the Sixth Amendment and holds them in contempt for destroying evidence and failing to cooperate with the court's investigation into the investigation. The court provides a roadmap for the 110 post-conviction claims filed as a result of the misconduct and orders them reassigned to her docket. Tenth Circuit (in a pair of cases): The prosecutors, who were fact witnesses below, lack standing to appeal.
  • Twenty-four law-enforcement officers are meant to execute no-knock warrant at 305 English Road, McDonough, Georgia—reportedly the home of a violent drug dealer. But wait! They execute the warrant on 303 English Road, busting in on a septuagenarian with flash-bang grenades. Eleventh Circuit: Qualified immunity for the tactical commander in charge of the operation. (Check out this local-news piece on the incident, which includes body-cam footage.)
  • A member of a jury deliberating over the prosecution of a former Congresswoman secretly tells court staff that another juror, Juror 13, is making her and other jurors nervous. Reportedly Juror 13 stated that a higher power told him the defendant was not guilty. The trial judge then questions Juror 13 who admits to saying the Holy Spirit indeed did tell him that, but also reaffirms he's following the court's instructions and carefully examining the evidence. The judge strikes Juror 13, and the rest of the jurors vote to convict. Eleventh Circuit (sitting en banc): There is a substantial possibility that Juror 13 was speaking somewhat metaphorically and could have nevertheless changed his mind in deliberations. New trial ordered. Dissenting judges would have deferred to the trial judge.
  • Deaf Florida man with a penchant for local politics discovers that some videos on a local municipality's official website lack closed captioning, and are thus inaccessible to people who are deaf or hard of hearing. He sends the municipality a letter asking them to add captioning, which is ignored. Then his lawyer sends a letter, which is similarly ignored. So the man files suit under the Americans with Disabilities Act. The municipality responds by removing the uncaptioned videos from its website and the trial court dismisses the case as moot. Eleventh Circuit: But it isn't moot, because the plaintiff has a claim for retrospective damages. Concurrence: I agree with the panel's 10-page opinion applying modern standing doctrine. Now here's another 57 pages on why that stuff is mostly b.s. (Ed.: It's actually an interesting discussion by one of the Eleventh Circuit's more entertaining writers).
  • DOJ: This Office of Legal Counsel memo—prepared for then-Attorney General William Barr and concerning the decision of whether to prosecute President Trump for obstruction of justice based on the findings in the Mueller Report—was predecisional, and is therefore exempt from FOIA. D.D.C.: Yeah, I'm sure Barr was seriously weighing his options. I've read the document in camera and you basically lied about its purpose and contents. Exemption denied.

In 2016, Ben and Hank Brinkmann, whose family owns and operates four hardware stores on Long Island, bought a vacant, commercially zoned lot in Southold, N.Y., to build a fifth store. But town officials imposed a building moratorium on a mile-long stretch of road centered around the lot and refused to process the Brinkmanns' permit application – all the while granting waivers to others in the area who sought a permit. And then the town authorized eminent domain to seize the property. Officials say they want it for a park, but that is a pretext. The town never engaged in any planning for a park until after the Brinkmanns applied for a permit, and there is a lot for sale next door that would serve equally well. This week, the Brinkmanns sued the town in federal court arguing that the Fifth Amendment forbids pretextual takings under the guise of a public use. Click here to read more.

NEXT: “When an Individual Brings a Claim with Respect to Which Her Disabilities Are Central,”

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  1. In Maynard v. Snapchat, a Georgia Court of Appeals reached the same conclusion on the Section 230 issue as the Ninth Circuit, but decided last year that Snapchat isn’t liable for the design of the speed filter, since it had no duty to protect third parties from the intentional misuse of its products.

    https://efast.gaappeals.us/download?filingId=d11e0733-6100-440a-8ef4-f4e6bd577f53

    1. I know that one feature of Snapchat is that its stuff allegedly disappears shortly after being posted, but if I were the head of the state police of that state, I’d go to court with a request for either a subpoena and/or ability to put a “black box” in their system to record this stuff.

      My rationale would be simple: We’ve got 3 dead kids and their parents’ attorneys have shown that Snapchat had documentation of their speed. (We do too, from the manner in which their body parts were scatted through the woods.)

      Driving 123 MPH is not only inherently dangerous but criminal (it’s an arrestable offense in most states). Worse, in order for our officer to catch someone driving 123 MPH, from a dead stop where he’s running radar, he has to go 160-180 MPH to catch a vehicle that is literally going more than two miles a minute.

      While we have cruisers that can do that, we prefer not to because it endangers both our officers and the public. (Tip — you are far less likely to get a speeding ticket in the rain for this very reason — 75 MPH is one thing, the 110 MPH to catch you is another…)

      So if we have this information — which the perps are voluntarily sharing with the world — we can remove dangerous drivers from the road. Throw in a promise to only prosecute under the civil speeding laws that most (all?) states now have and it lowers the bar as to Fourth Amendment issues.

      Ask the grieving parents to join you in court — and what’s the judge gonna do???

      1. “. . . I’d go to court with a request for either a subpoena and/or ability to put a “black box” in their system to record this stuff.”

        Holy crap.

        Do you ever stop and review what you write before posting?

        Why don’t we just go full surveillance state and have “black boxes” on everything: Facebook, Reddit, every store, every…business.

        Sheesh.

        1. These idiots are stupid enough to tell the world that they are committing crimes — serious crimes that endanger public safety — if the local newspaper had been publishing similar information a century ago, the police back then shouldn’t have been able to use that information???

          The issue is telling the world that you are committing a crime — well, “the world” includes the cops….

          I really don’t see what the issue is here because if you are stupid enough to tell the whole wide world that you are doing something criminal, what expectation of privacy do you have? Perhaps you shouldn’t tell everyone that you are doing illegal things?!?

          1. We already get your kind when they post the pictures of themselves posing with the loot to Facebook.
            We don’t need any more methods of catching stupid criminals. giving them low-hanging fruit makes for lazy police detectives.

        2. “Do you ever stop and review what you write before posting?”

          That would imply a capacity for careful thought and of self-reflection, so the answer is pretty clearly “no”.

      2. “Driving 123 MPH is not only inherently dangerous but criminal (it’s an arrestable offense in most states). Worse, in order for our officer to catch someone driving 123 MPH, from a dead stop where he’s running radar, he has to go 160-180 MPH to catch a vehicle that is literally going more than two miles a minute.”

        So much stupidity to unpack. Driving 123 MPH isn’t inherently dangerous. Driving 123 MPH on a public street is. Airplanes on the runway go faster. So do racing cars.
        genius, the cop running the radar doesn’t have to accelerate at all, his radio transmits at a speed of 186,000 miles per second, which is plenty fast to get in front of those durn kids in their fast cars.

  2. “there is no constitutional remedy for excessive force by federal officers.”

    I imagine oral arguments if this case makes it to SCOTUS.

    “Your honor, there would be no constitutional remedy if the bailiff standing behind you right now, suddenly assaulted you while sitting where you are. There are federal officers who may have participated in the January 6 assault on the capitol.”

  3. A recent comment on the normally dull regulations.gov touches on a rule governing the speed feedback signs that tell you you are speeding which you already knew because the speed limit is stupid: “this is based on a case back in the 2000s when a County in Maryland procured signs from Canada that had been capable of handling km/h, and the signs were found to *increase* speeds due to a significant share of motorists considering the three-digit device a challenge toward going over 100 MPH on a 30 MPH street”. In my comment on the same rule I referred to that behavior as trying to set the high score.

    One solution is to limit speed display to something that you and your lawyers will approve of. But I would not hold Snapchat responsible unless the app itself rewarded you for high speeds.

    1. A long time ago, in a very different world — when the 55 MPH limit was the national law and there were flashing signs on bridges indicating that you were exceeding that — it used to be great fun to see if you could set *two* of them off at the same time.

      If you did it just right, and it involved an angular move across the lanes precisely at the right time, you could set BOTH of them off…

      Now these were just flashing lights and a neon sign that said that you were exceeding the 55 MPH speed limit — but had there been signs that gave actual speeds — well, I was young….

      I’m reminded of the well-intended effort to put BAC machines in bars and patrons competing to get the highest number….

      But my disagreement is that if Snapchat has evidence of crimes being committed, evidence which is being broadcast without any expectation of privacy — well, how is it different from the TV news crew which inadvertently records a homicide? They may have been there to document the potholes on Main Street but in the process happened to record someone getting shot — they should be able to deny the cops access to that footage???

      Think back to the days of BBS — if Perp X posts that he has murdered Victim Y, the cops don’t have the right to ask who Perp X *is*???

      My attitude is that if you truly are stupid enough to tell the whole world that you have committed a crime, don’t come crying to me when the cops come after you for the crime that you told everyone (including them) that you’ve committed….

      1. “Think back to the days of BBS — if Perp X posts that he has murdered Victim Y, the cops don’t have the right to ask who Perp X *is*???”

        Not sure what your connection to the days of BBS has to do with it, but even if it IS relevant you seem to have confused the difference between police asking for something and police demanding it to be produced for them.

      2. Iirc a study of busibody laws requiring McDonald’s to post calorie content ended with a net increase of ~100 calories purchased per meal.

        1. How, exactly, would you measure that cause and effect accurately?

  4. That Eleventh Circuit bow to knuckle-draggers and fairy tales was a pure Republican majority, mostly Trumpers.

    It is time to expand that bench (although not before the Supreme Court) and impose some modern, reasoning adult supervision on our vestigial clingers. Not even the Eleventh Circuit, Alabama-style deep south, should be abandoned to backwardness and ignorance.

    1. Wow. What a bigot. You will accept the preferences of your non-religiously bigoted betters, Arthur.

      That is all.

      1. Any prediction on when Republicans and conservatives are going to begin to reverse the tide of the culture war? Or do you figure America’s betters are just tired of winning and will surrender to the clingers after a half-century and more of shaping our national progress against the preferences of right-wingers?

        1. I suppose a certain kind of Conservative will will the culture war when your side manages to abolish women’s sports and give men sexual access to women’s prisons. I’m sure you will be very happy.

          1. There are already men who have sexual access to women’s prisons, although strictly speaking they are not supposed to use their positions of authority for that purpose.
            Does that feel like “winning”?

            1. “There are already men who have sexual access to women’s prisons.”

              And many of us are against that.

              1. You prefer sexist hiring at the prison, then?

                1. If male prison guards want to work in a women’s prison so bad, they can wear a male chastity device while on the job.

                  1. You volunteering to check compliance? Because I ain’t gonna.

              2. “And many of us are against that.”

                The prisons should be unguarded, then?

    2. “That Eleventh Circuit bow to knuckle-draggers and fairy tales was a pure Republican majority, mostly Trumpers.”

      And I’m not sure what your substantive problem with the decision is, other than bigotry.

      There’s two possibilities:
      1. God told the juror that the defendant was not guilty.
      2. God did not tell the juror that the defendant was not guilty, and the juror mistakenly attributed some of his reasoning to God.

      Either way, the juror should stay on the jury.

      1. This assumes the god-presumptive reasoning was reasoning at all, rather than just a gut reaction severed from a review of evidence.

        1. OK, he may have had a gut reaction that he mistakenly attributed to God. Jurors are allowed to have gut reactions.

      2. “There’s two possibilities:
        1. God told the juror that the defendant was not guilty.”

        God may be with them in the deliberation room, but He is not on the jury nor was his testimony entered into evidence.

  5. Is there any information as to why the town of Southold does not want the Brinkmanns to open a hardware store? It isn’t the kind of business people often object to, and they made a deal to buy out and hire owner of the only existing hardware store, so it doesn’t seem to be a matter of protecting an existing business. There’s something fishy here.

    1. It’s more ominous if it’s framed as shadowy forces thwarting the poor, honest businessman, so that’s how the story plays.

      1. What shadowy forces? The complaint clearly details that it’s the town board at fault. It’s fairly egregious: the moratorium is centered on their lot, the other hardware store owner that they were buying out suddenly demanded more money, suggesting that it would smooth their permit application, both the “town supervisor” and the assistant attorney pressured the bank to back out at the last moment (the former said he would never allow anything to be built on that property), and a board member claimed that it was because they weren’t “part of the old boys’ club.”

        1. The fact that the existing hardware store owner hired the town attorney (who knew about the town board’s yet unclear opposition to the new store) and then doubled his asking price is extremely suspicious.

        2. “What shadowy forces? The complaint clearly details that it’s the town board at fault.”

          And whose hand is guiding the pawns?

    2. Sounds like it’s because they’re not local, according to a member of the town board.

  6. 1) Wisconsin’s Open Meetings Law expressly makes subcommittees of committees/boards subject to the law. And there are other common law doctrines that effectively stop exactly what happened here.
    2) The whole “you can’t jail me because I might catch COVID” is so obnoxious. You might catch COVID anywhere, and prison is intended to be a worse overall experience than freedom, duh.
    3) How often do inmates make bogus claims that they’re sick?
    4) Judge Hughes sounds like a real piece of work
    5) Aren’t jurors supposed to decide, as a matter of course, whether evidence is convincing or not?
    6) “Snapchat made my kids do it” should be dismissed as frivolous (although I know it won’t be)
    7) They sued over a couple of seconds of pepper spray? Good grief.
    8) “Inaccessible” =/= “I can’t get the full benefit of it”

    1. ” You might catch COVID anywhere, and prison is intended to be a worse overall experience than freedom, duh.”

      When the state takes away the freedom, they simultaneously assume the responsibility of protecting the person in their custody who no longer has the freedom to look after their own interests. Prison food isn’t great, but it does provide basic nutrition, for example. Now, it turns out that COVID spreads most easily in crowded, close quarters.

      1. I agree with everything you said. That doesn’t mean at all that prisoners are entitled to be released because they might catch COVID in prison.

        1. ” That doesn’t mean at all that prisoners are entitled to be released because they might catch COVID in prison.”

          Didn’t say that it did.

    2. 3) How often have prisoners died of medical conditions that would have been treatable while the guards sat back and claimed they were faking it?

      1. In this specific case the prisoner wasn’t faking it. He had to be hospitalized for months because the guards delayed seeking medical treatment for him.

        Prison guards should not be allowed to make the decision if they think a prisoner is faking medical distress. Only qualified medical personnel should be allowed to make that cal. And that’s for every instance, no flagging a prisoner as a repeat faker.

        1. You seem to have responded to your own point by misunderstanding it, but at least you agree with yourself.

        2. No, definitely not faking it. But “get every inmate who makes any medical complaint to a doctor” is not a realistic prison policy either. That doesn’t mean complete callousness to medical needs is good either, but it’s a real problem and I honestly wonder how much faking guards have to deal with.

          1. “But “get every inmate who makes any medical complaint to a doctor” is not a realistic prison policy either.”

            Saying so doesn’t make it true. The guards are not qualified to determine if a prisoner is faking a medical complaint.

            “I honestly wonder how much faking guards have to deal with.”

            Based on the number of stories I’ve seen on prisoners dying or suffering serious medical consequences because the guards said they were faking when the weren’t, I would say real faking happens about 1/10th as often (or less) as the guards claim it does.

            1. You get people faking illness in the military, too.

  7. I have been out of the game for a long while, yet I try to keep up to date. Lately I have read things here, no fault of the author/compiler, that shock my legal mind. The Jose Oliva case. Was suit filed pursuant to 42 USC § 1983? Violation of civil rights under color of law. The Diablo Canyon case seems almost cast from a movie. I believe that in this case, 31 USC § 3729, “The Lincoln Law” would apply. As I said, I have been out of the game for over 15 years, but I have a creeping notion that stupidity and poor advise are rampant.

    1. ” I have a creeping notion that stupidity and poor advise are rampant.”

      That notion is accurate.

  8. On the Olivia case, I think a difficulty with the Hernandez v. Mesa case is that the Supreme Court, to avoid issuing an opinion on whether the 5th Amendment applied extraterritorially in a high-profile case, took an approach whose implications are in many ways broader, limiting Bivens remedies, leading to Olivia’s situation.

    I think a difficulty with too limited a view of Bivens is that if the police formally arrest a suspect and taken to court, they are subject to a variety of constitutional constraints and can be held liable in many circustances. But if they simply avoid formalities and engage in self-help, roughing up or shooting the suspect, their actions are subject to much more lenient standards and they may not be liable for any remedy at all.

    This regime essentially incents the police to avoid formalities like courts entirely and use self-help as the main way to keep order. As Justice Holmes famously said, the le in effect imposes penalties for particular actions. Where “following” the law but making a small mistake leads to heavy penalties, but “not following” the law is completely exempt from liability, the logical conclusion is that what the law requires of people is “not following” it. By this logic, the police officers who beat Olivia were simply doing what the law expected, indeed required, of them to avoid liability. If we really believe the law should be this way, we ought to praise them rather than blame them.

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