Short Circuit: A Roundup of Recent Federal Court Decisions

The First Amendment behind bars, illegal antiquities, and architecture as expression.


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

In 2019, IJ, Tyson Timbs, and Tyson's car secured a pathmarking victory for property rights when the U.S. Supreme Court held that the Excessive Fines Clause applies not just to the feds, but to the states as well. That decision didn't get Tyson his car back, though. The case was remanded to the Indiana Supreme Court, which remanded the case to the trial court, which ruled for Tyson again last year—a ruling from which the State of Indiana appealed (seriously) and which, at last, a majority of the Indiana Supreme Court affirmed yesterday. "Reminiscent of Captain Ahab's chase of the white whale Moby Dick, this case has wound its way from the trial court all the way to the United States Supreme Court and back again," says the majority, en route to holding that forfeiting Tyson's car would indeed violate the Excessive Fines Clause. "[T]he seven-plus-year pursuit for the white Land Rover comes to an end." Congrats to Tyson and to White Whales everywhere.

  • African American firefighters in New York challenge the fire department's grooming policy. The men suffer from pseudofolliculitis barbae—a common condition among African American men sometimes called razor bumps—the primary treatment for which is growing a beard. Fire department policy prohibits beards, which it claims interfere with the seal on respirator masks. The firefighters sue, alleging violations of the ADA and Title VII. Second Circuit: Federal safety regulations expressly prohibit the wearing of respirators with beards, so the requested accommodations are unreasonable per se.
  • After the Swiss government seizes thousands of antiquities suspected of having been imported into the country illegally, the American owners of some 1,200 of those antiquities sue in U.S. federal court for their return. Second Circuit: You sued in the wrong federal court system; take it up with Switzerland.
  • Can victims of terrorism hold the terrorist organization's bank liable for their injuries? After over a decade of litigation and four appeals, the Second Circuit now says maybe, at least on an aiding-and-abetting theory, and remands for yet further proceedings.
  • You may see this case as a petty squabble over attorneys' fees, but the Third Circuit sees it as an exciting opportunity to teach us about the difference between supplemental and ancillary-enforcement jurisdiction.
  • In 2018, the Texas Secretary of State issued a press release announcing that voter registrations required ink signatures—but, says the Fifth Circuit, she doesn't actually have the authority to enforce that requirement and so cannot be sued to invalidate it.
  • In which the Sixth Circuit encounters a gentleman who sought to never pay his mortgage again through this one weird trick.
  • Eighth Circuit: Of all sad words of tongue or pen, the saddest are these—your merits defense was waived.
  • Missouri bans most abortions after eight weeks and all abortions when the doctor knows the mother is responding to a diagnosis of Down Syndrome. Eighth Circuit: Looks unconstitutional. Preliminary injunction sustained. (One judge, dissenting in part, thinks the Down Syndrome provision is too narrow to deserve an injunction.)
  • Does the publisher of Prison Legal News and The Habeas Citebook have a First Amendment right to mail unsolicited copies to prisoners? Eighth Circuit (2–1): Maybe. If the postcards-only policy of a jail in Baxter County, Ark. amounts to a total ban on access, that's a problem. Remanded for fact-finding.
  • "These notices of appeal are entirely deficient. They appeal an order entered on a day when no order issued, from a district court that does not exist, to a court of appeals that does not exist." So says the Eighth Circuit, a very real court entering a very real dismissal.
  • Woman is shot in her Orem City, Utah home. Husband says he stepped out of the kitchen upon hearing the shot and saw her falling to the ground. Suicide? The husband says so, but evidence at his ensuing murder trial shows a distance of 12 feet between where the husband says he saw her falling and where her body was found. The husband is convicted of murder. But wait! The diagrams and calculations were inaccurate; the wife moved only about nine inches. The medical examiner retracts his homicide finding, and at a new trial, the husband is acquitted. He sues the prosecutor and police for fabricating evidence. District court: Qualified immunity all around. Tenth Circuit: Not quite. Taking the husband's allegations as true, the prosecutor shared fabricated distance-traveled evidence with the medical examiner, so no qualified immunity for that guy.
  • Can squatters invoke the Fair Housing Amendments Act against their unwilling landlords? Ninth Circuit: Um, no.
  • Circuit Breakers (that's you, dear readers) may recall a September opinion in which two-thirds of a Ninth Circuit panel took issue with a prosecutor's repeatedly telling the jury that the presumption of innocence no longer applies to the defendant. On panel rehearing, three-thirds of that panel now say that the prosecutor's statements probably didn't affect the outcome of the defendant's trial. Or more precisely (because we're in federal habeas land), that the state court's conclusion that the prosecutor's statement was harmless was not an unreasonable application of federal law.
  • Mentally unstable inmate stabs his sleeping cellmate in the eye with a pair of scissors. The cellmate, now permanently blind in that eye, asserts that he had told prison officials he was afraid for his safety and that the mentally unstable inmate had a history of assaulting his cellmates. He files suit under the Federal Tort Claims Act. Eleventh Circuit: No can do. Inmate-housing-placement decisions are a policy-laden endeavor that fall within the "discretionary function or duty" exception to the FTCA. Dissent: The gov't has no discretion to violate the Constitution, so the statute's exception shouldn't extend to tortious acts that are also unconstitutional. (Circuit split alert!)
  • Palm Beach, Fla. man wants to knock down his traditional beachfront mansion and build a 25,000 sq ft midcentury modern home that reflects his philosophy of simplicity in lifestyle. The town: Your proposed house doesn't fit our vision of beauty and harmony, so no permit. Over the course of 136 pages, an Eleventh Circuit panel spars over whether the proposed house is expressive conduct protected by the First Amendment. The majority concludes it is not. Dissent: "That architecture is an expressive art is a proposition that has stood unchallenged for millennia." Otherwise, coin-operated shows of adult films and anodyne elevator music are protected while Monticello and Philip Johnson's Glass House are not.
  • Georgia inmate—a serial litigant who has filed hundreds of federal and state cases and appeals—filed the current suit challenging the prison's enforcement of its beard-length policy. He contends they forcibly shave him in violation of his religious beliefs and in an unsanitary and violent manner. Eleventh Circuit: Please leave us alone. Dissent: The inmate's allegations are worth taking seriously, given the serious risk of hepatitis spreading via dirty razors.

Wayne Nutt is an engineer. He trained as an engineer, and for decades he practiced engineering in North Carolina, which did not require him to obtain an engineering license. Now that he's retired, Wayne wants to talk about engineering—and that, North Carolina says, is a crime. Wayne has teamed up with IJ to protect his First Amendment rights. Learn more here.

NEXT: Wisconsin S. Ct. Strikes Down Private School Closure Order

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  1. Federal safety regulations expressly prohibit the wearing of respirators with beards, so the requested accommodations are unreasonable per se.

    Fools!!! They should have claimed the beard is required as part of their faith. That’s the way to get around rules and regulations in the courts these days good old USA.

    “My faith requires it” is the magic incantation to the courts so you can be exempt from any rule you don’t like.

    1. Federal courts have ruled that if you can get a medical exemption for it, you can also get a religious exemption. Police v . Newark was also about growing a beard, and it ruled exactly that.

      But these people couldn’t get a medical exemption. While religion may need to get as much consideration as the most favored other category, it still doesn’t have to get more.

    2. The history behind the need for a man in uniform to be clean shaven from WWI and gas masks needing to have a good seal with the skin of the face to prevent the gas from seeping in. In many positions, particular damage controlmen in the Navy or Coast Guard, they have to be clean shaven for respirator use. The court did make a good decision here, ingrown hairs or not.

      It is a practical thing, that does get extrapolated to far. It’s become the norm, gas attacks as a threat or not, to be clean shaven. So if the military, or the police, or any company, can dictate a uniform, then they can do so provided it’s not a safety issue, which it was in the case.

      However, waivers are common for positions where a respirator is not needed. Recently, Sikhs can be in the Army with their traditional headress, but not in all military occupations.

      Also, wasn’t there a SCOTUS case recently where a Mohammedian woman was given the accommodation to work at the GAP (or a similar place) with a hajib?

      1. When I was in AF basic training in the mid-80’s, they told us all what pseudofolliculitus barbae was, because some of the recruits were getting waived from having to stay clean-shaven. Then again, in the AF gas attacks were pretty rare.

    3. “That’s the way to get around rules and regulations in the courts these days good old USA. ”

      Always has been.

    4. I mean, no actually, see Employment Division vs. Smith.

      Now granted, that case might be overruled in about 2 days, but for now its good law. And expecially with employers it applies, if your religious exemption is overtly burdensome.

    5. Operators in chemical plants have the same restrictions on facial hair. If you have to have a full beard, you can’t wear a respirator. It’s not a one-size-fits-all. You need one fitted to you. These requirements aren’t fake. The restrictions are real, and if you can’t meet them, it’s an actual safety problem.

  2. In the Syrian combatant case, I don’t understand how there can be any facts supporting the guilty plea. Even if combatant immunity goes to the merits rather than jurisdiction, if the defendant has combatant immunity, then the facts don’t support guilt on the merits – the facts he alleged don’t support the claim of guilt.

    What will happen here? He will file a petition for writ of habeas corpus saying he had ineffective assistance of counsel because his counsel didn’t reserve an obvious meritorious legal defense by putting all his marbles into a jurisdictional defense and waiving the obvious merits defense. I would suspect the petition would be granted here. His attorney was an idiot. So he’ll get released after some period in jail. What good will come of making him wait?

    The original judge’s position – that combatant status only applies to international conflicts and not civil wars because Geneva Convention – seems to forget the existence of the American Civil War and the rules developed during it.

    1. “I would suspect the petition would be granted here. ”

      Why? The CA here goes into a long discussion that the supposed merits defense is not valid even if was asserted because it was a civil war. Perhaps dicta but its the law of the case I’d say.

      “seems to forget the existence of the American Civil War and the rules developed during it”

      No, they just reject any such rules as controlling:

      “Third Geneva Convention Relative to the Treatment of Prisoners of War … preempts the common law defense of combatant immunity”

    2. Not all people killing other people in a war-torn country are entitled to immunity. First you have to act like a lawful combatant. Second, you have to convince the courts that being a lawful combatant in a civil war not involving the United States qualifies you for immunity, as opposed to the right to be tried by a District Court instead of a revolutionary council, or even no right at all.

  3. “Congrats to Tyson and to White Whales everywhere.”

    Given how narrow and vague the basis of the victory was, it’s more like, “Congrats to Tyson and anybody else who would inevitably go straight to a Supreme court royally pissed at the court they’re before.”

    I mean, their test, for all practical purposes, was, “Is your name Timbs, and have you been before the Supreme court twice, and sent back with instructions that we had to rule in your favor?”

  4. Looking at the Street View for that bankruptcy guy’s house is… mildly interesting.

    1. Nothing gets my attention more than something described as “mildly interesting”—link please!

      1. The court opinion says Gully Top Lane in Canfield OH, no number. But it’s a short street and I think you’ll figure it out.

        1. Duck,
          I can’t figure it out. A quick Google brought up a few houses for sale. But I have no idea which house it actually is. Google Maps shows a bunch of nice houses. But nothing jumped out at me, which I sort of had expected from KK’s post.

        2. Do you think it’s the one that got toilet papered? That’s the only one that jumps out at me, but I think that’s more likely to be for some other reason.

          1. It is indeed the on that got toilet papered, as you can see from other decisions.

            1. Thank you! My mild interest has now been sated. Does this also bring a new meaning to “McMansion hell”?

    2. I guy that behaves like that is likely to have plenty of other people mad at him.

  5. On p. 15 of the Third Circuit case, the court stated: “Relying on a Massachusetts Supreme Court case as persuasive authority, the District Court held …”

    Maybe this is extreme nitpicking, especially because the quoted text just describes what the lower court did and has no bearing on the merits, but no such thing as the “Massachusetts Supreme Court” exists. It’s the Massachusetts Supreme Judicial Court.

    1. This is the sort of pedantry that even when you’re right, you aren’t right.

      1. But if I don’t point these things out, who will? ????

        1. members of the Massachusetts Supreme Judicial Court? If they care, I mean.

    2. “It’s the Massachusetts Supreme Judicial Court.”

      As opposed to the Massachusetts Supreme Basketball Court?

      1. As opposed to the Massachusetts General Court. With the amount of legislating the Judicial Court does, you could be excused for some confusion.

        1. The word judicial seems entirely unnecessary if what it’s being distinguished from is the “Massachusetts General Court”.

          1. The difference, you see, is that the Supreme Judicial Court has judges, an the General Court has military officers.

  6. I love* John Ross. He has a gift for getting things across and is funny as hell.

    *agape love

    1. Don’t Google “gaping love” unless you have SafeSearch turned on.

  7. “Mentally unstable inmate stabs his sleeping cellmate in the eye with a pair of scissors.”

    WTF is he doing with a pair of scissors…a deadly weapon?

    Which reminds me. Our local detention center will not let anyone confined file a petition for a writ of habeas corpus. Use of a pen or pencil is forbidden because it could be used as a weapon or instrument of suicide.

    1. So in prison, they really are mightier than the sword. (Or as the late Mr. Connery would have said, the S word.)

    2. Over at “Lowering the Bar”, you can find the guy who got convicted for stabbing his lawyer with a pencil while he was in court…for stabbing his previous lawyer with a pencil while in court.

      1. What I mean to say was that you can find the story. I don’t think the actual guy can be found there.

      2. Thanks for the link suggestion. That site is the funniest I have read in a long while. A definite keeper.

  8. Question for Professor Somin:

    In the Swiss antiquities case, the 2nd Circuit listed exections to foreign sovereign immunity in the FSIA, including where a seizure occurs in violation of customary international law. This includes where the seizure is not accompanied by any criminal proceedings or there is too long a delay, which provide a case that the seizure pretextual.

    The 4th Amendment imposes no obligation to have either investigation or proceedings, it merely requires probable cause at time of seizure.

    Could an atgument be made that:

    1. The FSIA implicitly waives US sovereign immunity where US seizures violate customary international law?
    2. Asset forefeitures without further investigations or proceedings represent such a case?

    1. You seem to simultaneously misunderstand the discussion in this case, the nature of federal sovereign immunity, and the way asset forfeiture works in the United States.

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