The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

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


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.