Short Circuit: A Roundup of Recent Federal Court Decisions

Courtroom broadcasts, choke holds for kids, and the checkered game of life.


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

Next week, the Supreme Court will consider whether to grant review to an IJ cert petition asking whether Maine can exclude families from a generally available student-aid program solely because they use that aid to send their children to schools that provide religious instruction. Click here to read more.

  • Fraudster with a tale about an emerald in South America, among other tales, scams 46 people. Which gives Judge Selya of the First Circuit occasion to give us this vocab quiz: hornswoggle, immurement, devoir, pellucid, esurient.
  • In 1959, a toy developer looking for an idea to celebrate the Milton Bradley Company's upcoming centennial stumbled upon a game created by Milton Bradley himself in 1860 called The Checkered Game of Life. He paired up with a game designer to create an updated version, which eventually became the hit Game of Life. As might be expected, the founders clashed over who deserved credit for creating the game. And in the latest judicial chapter of the dispute, the First Circuit determines that, because the designer developer bore the costs of creating the game, the toy developer designer couldn't reassert control over the copyright.
  • Missing deadlines, ignoring discovery, citing excluded materials, filing a 9,000-page opposition, lying to the court—the Third Circuit catalogues a menagerie of bad lawyer behavior. In related news, the Third Circuit also explains the law of sanctions.
  • Under the Hatch Act, on-duty federal employees cannot engage in political activity. A 2018 federal advisory opinion suggested that political activity included using terms like "#resistance" and arguing for or against the impeachment of Donald Trump. Could that be a First Amendment violation? Fourth Circuit: Here is the fascinating history of the non-partisan civil service from 1791 to the current version of the Hatch Act in 1993. Anyway, Donald Trump isn't the president, the advisory opinion was withdrawn, and the case is moot.
  • Fairfax County, Va. high school student is sexually assaulted on the band bus. The school is informed and makes several accommodations for the victim, but ultimately decides that the event was not sexual assault and does not discipline the offending student. The victim sues under Title IX, and a jury returns a verdict for the school, concluding that the school lacked actual notice of the assault. Fourth Circuit: They absolutely had notice; remand for a new trial on deliberate indifference. Dissent: They had notice after-the-fact, and it never recurred. How can there be deliberate indifference?
  • North Carolina law has criminalized abortion, subject to certain exceptions, for the past 140 years. The state amended these exceptions in 1967 (to allow abortions in the case of a medical emergency), 1973 (to allow abortions before the 20th week of pregnancy), and 2015 (to, among other things, narrow what constitutes a medical emergency and who may perform abortions). The state has not prosecuted any abortion provider under these statutes since the 1973 amendments. State: So that means that abortion providers can't challenge the 2015 amendments, right? Fourth Circuit: Wrong.
  • Man convicted of a sexual offense involving a minor is imprisoned in Augusta County, Va. For six years, he enjoyed in-person visitation with his daughter without incident. But the prison changed its policies, prohibiting such visits unless a prison official grants an exemption—and refused to grant one to this man without explaining why. Fourth Circuit: The whole point of prison is that the inmate must surrender many of the liberties and privileges other people get. This doesn't violate his right to associate with his daughter. (Or his other rights, for that matter.)
  • If courts allow cameras in the courtroom, can they make it a crime to publicly broadcast the resulting video recordings? Not unless they can satisfy strict scrutiny, says the Fourth Circuit. A lower level of scrutiny might apply to a ban on live broadcasts, but the prohibition here prohibits any broadcasting whatsoever of these court recordings.
  • Fourth Circuit: Sure, the county's pesticide spray killed all your bees, but the gov't's action has to be intentional to trigger the Takings Clause, and this was more of what we lawyers call a whoopsie.
  • Federal law imposes liability on anyone who knowingly provides substantial assistance to a person who commits an act of international terrorism, which, the Fifth Circuit notes, doesn't mean victims of domestic terrorism get to sue Google for hosting Hamas videos.
  • When does corporal punishment in public schools become so excessive it violates substantive due process? Trick question: Never, says the Fifth Circuit, dismissing the constitutional claims of a first grader who was allegedly held in a choke hold by a teacher for several minutes. (Judge Wiener, who also wrote the majority opinion, specially concurring: We are required to follow Fifth Circuit precedent here, but that precedent is nuts.)
  • Wheelchair user in Hinds County, Miss. sues because his disability effectively bars him from serving on a jury in a handicap-inaccessible courthouse. The trial court agrees that the man is excluded but then holds that there's no standing because any future jury service is speculative. Fifth Circuit: Reversed. It's not a big county. He'll probably get jury duty again.
  • Man seeking to restart Akron, Ohio's Scared Straight Program impersonates a police officer to gain access to public elementary school. He places children in handcuffs, forces them to exercise, and violently batters a kid. He's eventually arrested and charged with 50 crimes, and the parents of two children he abuses sue the school and its officials. Sixth Circuit: The impersonator was the one who caused the harm—the school officials' failure to protect the kids didn't violate their due-process rights.
  • Greenleaf Township, Mich. officials intentionally commit an open-meetings violation. So Michigan law makes them personally liable for $500 plus "actual" attorney fees. But do they really owe $137k in fees for a claim worth just $500? Sixth Circuit: Rewarding the attorneys who bring these cases encourages officials to follow the law. And "actual" means "actual." Pay up.
  • Here's a lineup you don't see every day: Two judges concur in this Sixth Circuit opinion, and the author of the opinion files a separate reply. (The upshot: The district court needs to better explain why it awarded a criminal defendant a six-level sentencing enhancement, but two members of the panel seem to think that will be an easy task.)
  • And here, in the remote reaches of the Ninth Circuit, we have that rara avis: the Concurrence Dubitante. Witness as the Dubitante studies a conflict between tribal sovereign immunity and a California cigarette tax. Like its cousin, the Common Concurrence, the Dubitante expresses its agreement with the more powerful Majority, but with the uncertain, somewhat hesitant gait that is so characteristic of this exotic opinion.
  • Allegation: In the wake of the Cambridge Analytica scandal about improper data harvesting at Facebook, Google discovered a problem of its own that exposed private user data to third-party developers. Google fixed the problem but didn't disclose it in regulatory filings to not draw attention from Congress. Instead, the 10-Qs said things like "There have been no material changes to our risk factors." Securities fraud? Could be, holds the Ninth Circuit. Especially for a business built on public trust. Case undismissed.
  • American Samoa is a U.S. territory, but people born in American Samoa are considered U.S. nationals, not U.S. citizens. Does this violate the Citizenship Clause of the 14th Amendment, which extends citizenship to all those born "in the United States"? In a fascinating trip through history, three members of the Tenth Circuit conclude no, maybe (but also no), and yes.
  • This convicted sex offender was found living within 2,000 feet of a school and, as a consequence, was hit with two consecutive life sentences. Tenth Circuit: Constitutional or not, the petition's challenge to those sentences is time-barred. Dissent: The majority takes an unnecessarily cramped view of the petition and allows a miscarriage of justice to continue.
  • In the course of determining that a former University of Denver student can press forward with his sex-discrimination challenge to a sexual misconduct investigation, the Tenth Circuit addresses a burgeoning circuit split concerning the proper analytical framework for such claims.  (The question, the court holds, is whether sex was a "motivating favor in a university's disciplinary decision.")

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NEXT: Would Justice Alito Have Struck Down the GOP Obamacare Replacement?

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  1. “Fairfax County, Va. high school student is sexually assaulted on the band bus. ”

    Don’t you mean “allegedly”? As I understand it, there is a difference.

    1. I started to write a comment about that very point, but on reading the case, it seems there’s actually very little dispute about that point.

  2. I’m betting that a fair number of readers here are familiar with esuriant from Monty Python.
    C: Well, I was, uh, sitting in the public library on Thurmon Street just now, skimming through ‘Rogue Herrys’ by Hugh Walpole, and I suddenly came over all peckish.

    O: Peckish, sir?

    C: Esuriant.

    O: Eh?

    C: ‘Ee I were all ‘ungry-like!

  3. In the 10th circuit case, it appears that the 10th circuit is willing to let a person with an open-and shut actual innocence claim – the Oklahoma Supreme Court struck down the law he was convicted of as violating the Oklahoma constitution – will have to continue to serve two consecutive life sentences, because it will only him file an out- of -time claim based on new decisions of the US supreme court and claims of actual innocence.

    Decisions of state supreme courts striking down state laws don’t count, only the US Supreme court counts. And he didn’t use the magic words “actual innocence” in his claim, so he didn’t claim it.

    His crime was living within 2000 feet of a school while having been previously convicted of a sex offense. The Oklahoma Supreme Court said imposing life imprisonment for such conduct after the underlying convictions had been served ciolated the state’s ex post facto clause.

    1. the Oklahoma Supreme Court struck down the law he was convicted of as violating the Oklahoma constitution

      His crime was living within 2000 feet of a school while having been previously convicted of a sex offense. The Oklahoma Supreme Court said imposing life imprisonment for such conduct after the underlying convictions had been served ciolated the state’s ex post facto clause.

      In which case or cases do you believe the Oklahoma Supreme Court did that?

  4. “The impersonator was the one who caused the harm—the school officials’ failure to protect the kids didn’t violate their due-process rights.”

    Bullshyte — school officials should have been supervising and should have intervened when it went too far.

    1. Bullshyte — school officials should have been supervising and should have intervened when it went too far.

      Reading through that opinion was painful. The ruling is basically a bunch of cover for complete and total negligence.

      The dude came to pick up his girlfriends kid who acted out and claimed to be a cop. And he wore a jacket that said “officer”. So everyone just assumed he was a cop and gave him free reign over the school. And that’s ok, apparently?!?! WTF?

      No one ever asked to see a badge.
      No one thought twice about the fact all of a sudden a students mom “police officer” boyfriend just randomly started showing up daily at the school.
      No one ever thought to verify who he was or why he was there.
      No one cared to keep an eye on him at all.

      In my experience, schools have a dedicated/ assigned resource officer…not random cops that show up on a whim and start getting involved in every petty disciplinary event.

      I can kinda sort understand the staff getting fooled on the first day when he showed up to pick up his gf’s kid…but once he started coming back and talking about starting up scared straight, someone should have started asking some basic questions and figuring out who this dude is.

      1. The school may indeed have been negligent, but negligence does not violate the United States Constitution.

    2. My opinion, the school officials should have had an obligation to intervene even if the guy had been a real cop.

  5. “(The question, the court holds, is whether sex was a “motivating favor in a university’s disciplinary decision.”)” – Wouldn’t that eliminate most disparate impact claims from Title VII (sounds vaguely like needing animus)?

    Also, how did a state law open meetings claim get in federal court? Diversity jurisdiction seems incredibly unlikely. Maybe a 1983 claim for something the city council or whatever did and a meetings violation tacked on to it for supplemental jurisdiction. But if there was a 1983 claim, that would be a basis for attorney fees anyway. But maybe they lost their 1983 claim. I’ll have to read up on that one.

    1. You know you’re allowed to click on the links and read the opinions before you comment, right?

      In this case, they indeed brought § 1983 claims, which the jury rejected at trial.

  6. “Michigan law makes them personally liable”

    We need more laws like this. Especially for IRS and FBI officials. If we did maybe Gen Flynn and Christians Engaged wouldn’t be treated so poorly.

  7. I regularly enjoy this feature, the blurbs are amusing and the cases interesting.

    I do want to flag one blurb error. In the game of life case, it was the game developer who won, on the grounds that the designer made a “work for hire”. Probably just a typo.

    I’m not quite old enough to really remember Art Linkletter, but I was amused to see the business arrangement he’d had with the game developer. I suppose you could call him an “old media influencer”.

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