The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

Strolling through Boston Common, flying over Greenland, and driving in Independence.


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

Two months ago, FBI agents broke their word and the terms of a seizure warrant by criminally searching the contents of hundreds of safety deposit boxes at a private business in Beverly Hills that is under indictment. But the business' customers were not under investigation, and the federal government is still holding onto their property without any justification. This week, IJ filed a class action against the FBI. Click here to read more.

  • Allegations: Man is strolling through Boston Common when the Ancient and Honorable Artillery Company of Massachusetts (a historic military organization) fires blank rounds from howitzers, damaging the man's hearing. Man sues the United States. (The Massachusetts Army National Guard oversaw the cannon exercise.) District court: The man's claim arises out of the National Guard's performance of a "discretionary function," so the courts lack jurisdiction under the Federal Tort Claims Act. First Circuit: Just so.
  • In 1968, a B-52 carrying four hydrogen bombs crashed in the Wolstenholme Fjord in Greenland, 7 miles west of Thule Air Base and 700 miles north of the Arctic Circle. The crash released radioactive materials, including plutonium, and the Air Force carried out a nine-month cleanup effort staffed by American military personnel and Danish civilians. In 2010, several of the Danish workers who fell ill after their work filed claims under the Defense Base Act, arguing that the Air Force didn't do enough to protect them from radiation. First Circuit: The workers lose the battle of experts as to whether plutonium radiation caused their illnesses.
  • As Harvey Weinstein's empire crumbled, his company declared bankruptcy and sold most of its assets to Spyglass. What does that mean for those who had contracted with Weinstein? In a pair of cases, the Third Circuit brings bad news for Bradley Cooper and Robert De Niro (plus some less-recognizable faces): Spyglass did not assume the obligations to a group of investors who had provided funding in exchange for a share of future profits, nor must the company pay $400k to the producer of Silver Linings Playbook owed before the sale's closing.
  • An employee with the York County, S.C. Sheriff's Office discloses to his wife (who works in local news) confidential information about an investigation into an inmate's death. Then he lies to internal investigators. The sheriff fires the employee, after which the employee sues the sheriff for First Amendment retaliation. District court (2017): The employee's speech was protected under the First Amendment. Fourth Circuit (2019): The lower court used the wrong standard. Vacated and remanded. District court (2019): The employee's speech was not protected under the First Amendment. Fourth Circuit (2021): Affirmed! Dissent: The employee was concerned about police misconduct, and the sheriff's office had publicly denied wrongdoing. I would hold that the employee's interest in warning of potential misconduct and corruption trumps the government's interest in efficiency.
  • In which the Fifth Circuit confronts whether a man's receipt of a single text-message in violation of the Telephone Consumer Protection Act is an "injury in fact" supporting Article III standing. Fifth Circuit: Good enough for Article III. (The Eleventh Circuit, in 2019, thought differently.)
  • Move over, "not clearly established." In the Fifth Circuit, "new Bivens context" is the latest way to deny remedies for violations of constitutional rights. Meaning even if his food really was contaminated with feces and urine, a federal prisoner is still SOL.
  • The Sixth Circuit gently reminds the bar that waiver and forfeiture are not the same, and the little difference can mean years of prison time.
  • Congress recently allocated $29 bil to help small restaurants hurt by the pandemic. Women, veterans and the "socially and economically disadvantaged" (essentially meaning racial minorities) get to apply earlier than others, giving them a better chance of scoring limited funds. Husband (white) and wife (a woman, obviously, and Hispanic) own restaurant 50-50. Thus business is 1% away from being able to apply early. Is this an unconstitutional race or sex preference? Sixth Circuit says yes. For race, some groups are in or out for no seeming reason with no evidence presented (e.g., Pakistanis are in, Afghans are not). For sex, the government only provides sparce statistics. The dissent, on the other hand, says the program is "a carefully targeted measure necessitated by an unparalleled pandemic."
  • After spending more than a decade in prison, Indiana man is granted habeas relief because prosecutors illegally added charges that more than doubled his sentence. He sues the prosecutors. Seventh Circuit: Absolute prosecutorial immunity.
  • Shannon Hills, Ark. police officer is dispatched to the scene of a domestic dispute, where he alleges he heard blood-curdling screams (the people involved deny this). After he kicks the door, a man opens the door and charges at him with hands raised (ditto). The officer yells "Stop!" (ditto) before shooting the man in the leg, severing a nerve and clipping his femoral artery (this one they agree on). Eighth Circuit: A jury has to figure out what happened; no qualified immunity. Dissent: Chaotic scenes like this are exactly why we have qualified immunity.
  • Independence, Mo. police officer pulls over a high-school student, seeks to arrest him without saying why. Instead, the cop tases the kid for at least 20 seconds, which knocks him out, and then drags and drops him face-first (still unconscious) onto the concrete, breaking several teeth. The Taser—a "less lethal weapon"—sends the kid into cardiac arrest. He's resuscitated by medical responders but suffers a permanent brain injury. A jury awards $6.5 mil in compensatory and punitive damages, and the (now former) cop is sentenced to four years in prison. Cop: Qualified immunity? Not a chance, says the Eighth Circuit, though the court does reduce the punitive damages by half a mil.
  • CIRCUIT SPLIT RED ALERT. Under the "safety valve" provision of 2018's First Step Act, drug offenders with certain criminal histories are exempt from federal mandatory minimums. In simplified terms, an offender is eligible for the safety valve only if his criminal history "does not have X, Y, and Z." But wait a minute. Does that mean that someone with just X is eligible or not? The Eleventh Circuit holds that offenders are eligible only if they do not have X, and do not have Y, and do not have Z. The Ninth Circuit holds that offenders are eligible as long they do not have all of X, Y, and Z. And because all three aren't that likely to happen together, a broad exception is now seriously limiting mandatory drug minimums in the Ninth Circuit. Your editors humbly predict that this one is going to SCOTUS.

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  1. The Eighth Circuit authoritarian (and slobbering provider of succor to trigger-happy, convenient-story-concocting police officers) in dissent is David Stras, a Federalist Society clinger who clerked for Justice Thomas and was appointed to a state supreme court by a Republican governor at age 35.

    Better Americans can't enlarge the Eighth Circuit quickly enough, but I hope the Supreme Court is addressed first.

    1. Ok, peackock. We get that you have to feel superior to everyone.

  2. > "But wait a minute. Does that mean that someone with just X is eligible or not? The Eleventh Circuit holds that offenders are eligible only if they do not have X, and do not have Y, and do not have Z. The Ninth Circuit holds that offenders are eligible as long they do not have all of X, Y, and Z."

    Unless I'm missing something, the 11th circuit interpretation seems to be the obvious one from a plain language standpoint ... and probably what congress meant.

    1. I'm sure it was. I suspect it's a 9-0 Supreme Court holding whenever they take it up.

      Having said that, I can't really condemn the Ninth Circuit's attempt to kneecap the mandatory drug minimums.

    2. "Unless I’m missing something, the 11th circuit interpretation seems to be the obvious one from a plain language standpoint..."

      Wouldn't the 11th circuit's holding require that they don't have X, Y, or Z?

    3. (f) [...] the court shall impose a sentence pursuant to guidelines [...] without regard to any statutory minimum sentence, if the court finds at sentencing, after the Government has been afforded the opportunity to make a recommendation, that-

      (1) the defendant does not have-
      (A) more than 4 criminal history points, excluding any criminal history points resulting from a 1-point offense, as determined under the sentencing guidelines;
      (B) a prior 3-point offense, as determined under the sentencing guidelines; and
      (C) a prior 2-point violent offense, as determined under the sentencing guidelines;

      (2) the defendant did not use violence or credible threats of violence or possess a firearm or other dangerous weapon (or induce another participant to do so) in connection with the offense;

      (3) the offense did not result in death or serious bodily injury to any person;

      (4) the defendant was not an organizer, leader, manager, or supervisor of others in the offense, as determined under the sentencing guidelines and was not engaged in a continuing criminal enterprise, as defined in section 408 of the Controlled Substances Act; and

      (5) not later than the time of the sentencing hearing, the defendant has truthfully provided to the Government all information and evidence the defendant has concerning the offense or offenses that were part of the same course of conduct or of a common scheme or plan...

      Yeah, I think it is clear that the 11th has the right intention of the law, but go ahead and try to write out (f)(1) as a logical statement.

      The actual text is written as NOT (A AND B AND C), but that implies (NOT A) OR (NOT B) OR (NOT C), which is what the 9th decided.

    4. The 11th Circuit said that "and" really meant "or." The 9th Circuit said that "and" means "and." I'm pretty sure plain language cuts the opposite of the way you think.

      1. I must be missing something.

        The Eleventh Circuit holds that offenders are eligible only if they do not have X, and do not have Y, and do not have Z.

        So they must not have all 3. Got it.

        The Ninth Circuit holds that offenders are eligible as long they do not have all of X, Y, and Z.

        So they must not have all 3. Got it.

        1. Nope, you don't got it. Maybe this will help.


          11th circuit: Not X and Not Y and Not Z = False
          9th Circuit: Not (X and Y and Z) = True.

          1. That does seem to be how it is written, but it leads to nonsense results.
            Looking up the definitions,
            A 1-point crime is one that had a sentence of less than 60 days,
            A 2-point crime had a sentence between 60 days and 13 months (or occurred while serving another sentence or parole/probation),
            and 3-point crime had a sentence more than 13 months.

            Someone with 10 murder convictions (all 3-point) would be eligible, but someone with a 18-month sentence for theft (3-point) plus a 60 day sentence for a drunken brawl (2-point violent) would not. Equally, an 18-month sentence for the drunken brawl (3-point violent) plus 60 days for theft (2-point non-violent) WOULD be eligible.

            I seriously doubt that was the intent of the law.

            1. Perhaps not, but there's no ambiguity in the text.

              1. And even if they were, the rule of lenity would require resolving it in favor of the defendant.

                Of course, many judges consider rules to be mere suggestions, even if as they enforce rules rather strictly against the rest of us.

            2. The courts shouldn't care what congress intended the only concern should be the text they passed.

  3. "...does not have X, Y, and Z."

    You have to have all three.

    Does anyone proofread this legislation?

    1. Probably not. In the early days of litigation over gay marriage, Texas passed legislation which (it thought) would ban gay marriage. However, it was very badly written, with the result that, as written, it banned *all* marriage. It was promptly fixed when someone pointed it out, but for brief period of time, all marriages were illegal in the State of Texas.

      1. That's very rude for a jurisdiction. How arrogant to think you define a marriage as existing, rather than God.

    2. The same bill created two subsections (57) in 21 U.S.C. §  802, so probably not (or at least, not well enough).

  4. ...shooting the man in the leg, severing a nerve and clipping his femoral artery (this one they agree on).

    Showing once again why "Just shoot them in the leg!" is not a good idea. Banks is extremely lucky to have survived that - a severed femoral artery can result in death in less than a minute.

    1. We had a neighbor sever his femoral artery when a tractor fell over on him while he was working on it. The only reason he lived was that a doctor was standing by prepared when it was lifted off him. And even so it was a near thing.

    2. A relative was playing a softball game when a pitch hit a friend in the leg, breaking open that artery. He died shortly, too.

  5. In the Bivens claim case, the prisoneer should have argued that giving him spoiled/inedible food was cruel and unusual punishment - the prison officials were starving him. The fact that it was allegedly in retaliation for something seems irrelevant. And yet it was framed in such a way that the retaliation element became more central to the claim than the underlying conduct.

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