Short Circuit: A Roundup of Recent Federal Court Decisions

Illegally-parked cars, electric-shock treatment, and highly-regulated massages.

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

New on the Short Circuit podcast: bar wars and mandatory associations.

  • The FDA permits the use of electric-shock treatment for a wide variety of conditions, including drug, alcohol, and tobacco addiction. But in 2020, the agency banned the treatment for self-injurious behavior. A clinic that offers the treatment, along with the parents and guardians of patients who have benefited from the treatment, challenge the ban as exceeding the FDA's authority. D.C. Circuit (over a dissent): And they're right. Federal law prohibits the FDA from regulating the practice of medicine; once a device is approved for one medical use, only the states can prohibit its use for other purposes.
  • Capitol insurrectionist requests bail while charges against him are pending, and the district court says it's a close call but no. D.C. Circuit: And based on his history of racist and antisemitic statements, his expressed hopes for a second Civil War, his showing up to work with a Hitler mustache, and an incident involving frozen corn cobs and a potato gun emblazoned with the Confederate Flag and the words "WHITE IS RIGHT," that decision was not clearly erroneous.
  • The SEC demands, as a condition of settling any civil-enforcement action, that settling defendants agree never to publicly question their guilt. Can a think tank that wants to publish the speech of people currently gagged by these agreements sue under the First Amendment? D.C. Circuit: It cannot, at least to the extent these agreements are incorporated into the final judgments of sister courts. And we choose to assume they are all so incorporated. (This is an IJ case.)
  • Putnam County, W.V. sheriff detains a man walking along the road with an AR-15-style gun on his back. Man: I was walking to a friend's house to go coyote hunting. Fourth Circuit: The man's rifle is "the weapon of choice" in mass shootings, he was stopped a week after the Parkland shooting while wearing military-style clothing and less than a mile away from a school, and the sheriff thought he could've been under 18 (and thus not eligible to open carry). The stop was fine.
  • Religious readers of Short Circuit should stretch their memories all the way back to last week, when the Tenth Circuit held that Oklahoma's bar-membership requirements did not violate the First Amendment before reading the Fifth Circuit's conclusion that Texas's requirements totally do. And, in a companion case about Louisiana's state bar, the Fifth Circuit earns your editors' eternal enmity by referring to this flurry of lawsuits as "bar wars" before we could make that joke ourselves. (We discuss this flurry on the podcast.)
  • In 2015, hundreds of bikers gather at Waco, Tex. restaurant to discuss new legislation affecting motorcyclists. Attendees include members of the rival Bandidos and Cossacks motorcycle clubs, and police watch from the perimeter. Around noon, a shootout erupts, leaving nine dead (mostly Cossacks), 20 injured, and 177 arrested. No one has been convicted, and the only criminal case that went to trial revealed that Waco police killed several of the dead bikers. Motorcycle enthusiasts: The prosecutor ordered the arrest of "all bikers wearing colors," which was done via fill-in-the-blank warrants lacking probable cause and based on lies. Fifth Circuit: That claim may proceed against the prosecutor and two detectives.
  • Coleman County, Tex. jailer watches a suicidal man wrap a phone cord around his neck and pass out. Instead of calling 911, the jailer calls his boss, who arrives ten minutes later. Only then does the jailer enter the cell, unwrap the cord, and call paramedics—but neither try to resuscitate the man, who dies. Fifth Circuit: Qualified immunity. Dissent: "Qualified immunity is not the judicial equivalent of the Armor of Achilles, an impenetrable shield that governmental actors can wield to insulate themselves from liability no matter how flagrant their conduct."
  • In 2018, two years after a school shooting, Madison, Ohio school district officials vote to allow teachers to carry concealed weapons. Concerned parent attends school district meeting but is removed after the members deem his statements "personally directed," "abusive," and "antagonistic." A First Amendment violation? The Sixth Circuit says yes; the gov't can't hold public meetings and then demand the public be nice to them.
  • Not a perfect Easter Sunday: Kentucky state trooper visits a family home—intending to help one family member retrieve her belongings from the house—and then (after the patriarch tells him he smells "like pig shit") punches the patriarch and winds up arresting a good chunk of the family. Sixth Circuit: Given the Supreme Court's decision in Caniglia, it is now clear this type of home visit requires a warrant. And, while this happened before Caniglia, even back then it was clearly established that a warrant was needed absent some ongoing disturbance or harm to the community at large. No qualified immunity here.
  • South El Monte, Calif. officials enter massage business—without consent or a warrant—and inspect non-public areas for violations of massage regulations. A Fourth Amendment violation? The Ninth Circuit says no. California massage businesses fall under the "closely regulated industry" exception to the warrant requirement (despite a recent SCOTUS decision stressing the narrowness of the doctrine), and local regulations limit the inspections to "regular business hours," which sounds reasonable enough.
  • What sentence is appropriate for a paranoid schizophrenic who robbed $896 from a bank ("without violence or fanfare") because he believed that getting himself arrested (which indeed happened very quickly) was the only way to get the police to protect him from imaginary bad guys? Tenth Circuit: The district court sentenced the gentleman to 63 months, right at the top of the guidelines range, and that sounds about right.
  • A woman's complaints about illegally-parked cars led—via an encounter with Miami law enforcement—to her arrest and involuntary commitment for a mental examination. Eleventh Circuit: While the officer claims to have had probable cause to believe the woman was mentally unwell, and the woman claims she was just vexed about chronic parking violations, that's a question of fact that needs to be resolved after a trial. The district court erred by crediting the officer's version of events.
  • Gov't contractor affixes ankle monitor to one-legged man waiting to stand trial on gun charge. Guess which leg. While the man's prosthesis and monitor stay at home, he commits a murder. Can the victim's family sue the gov't under the Federal Tort Claims Act for negligently hiring the contractor—a company knee-deep in litigation for a history of falling down on the job? D.C. District Court: No.
  • And in en banc news, the Fifth Circuit will reconsider whether federal courts have personal jurisdiction over a Japanese company whose container ship collided with a U.S. Navy destroyer in Japanese territorial waters, killing seven sailors and injuring dozens.
  • And in real estate news, the one-time home of Justice Bushrod Washington is for sale. (Not Mount Vernon. Come on.) Hat tip: John Elwood. Hat in hand: Please listen to our podcast on the privileges and immunities of citizens of the United States, something Justice Washington had a handle on.

Last month, the Illinois Supreme Court interpreted a clause in the state's constitution that dates back to Magna Carta and that protects a fundamental right: access to the courts. Heady stuff. But then the court applied rational basis review to the challenged provision—a $50 fee to access the courts in mortgage foreclosure cases. But then the court struck down the fee. Are we taking crazy pills? Anthony Sanders, the director of IJ's Center for Judicial Engagement, sorts it all out over at CJE's blog—part of a weekly feature on state constitutional cases that we like to call: the State Con Law Case of the Week. Click here to read about the case.

NEXT: Why Corpus Linguistics Does Not Undermine DC v. Heller (Much)

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  1. “Gov’t contractor affixes ankle monitor to one-legged man waiting to stand trial on gun charge. Guess which leg.”

    Ha ha, that’s hilar-

    “While the man’s prosthesis and monitor stay at home, he commits a murder.”

    Oops, my bad, that’s not funny at all. Boy, do I feel like a heel.

    1. That one was a roller coaster of emotions.

  2. I don’t listen to podcasts, so this may be covered there, but:

    Both circuits agreed on the law; the difference between the two results in the individual cases was the individual facts.

    The 10th Circuit decision on Oklahoma’s involved a state bar that modified its activities to moot issues of political use of the funds, while the 5th Circuit decision on Texas’s involved a state bar that didn’t. If you read the list of things the 5th Circuit decision says the Texas Bar could do be legally mandatory, they include what the 10th’s decision says the Oklahoma Bar already did.

  3. I’m not seeing the point of putting a paranoid schizophrenic in prison for five years for a robbery committed while delusional for the express purpose of getting himself arrested. A mental institution maybe.

    1. He didn’t rob a bank because he wanted to be confined to a mental institution.

      1. Excellent rebuttal to an argument nobody made.

        Try again.

  4. The 4th circuit is pushing a fantasy. The AR style of rifle is NOT “most commonly used” in “mass shootings”, no matter how a “mass shooting” is defined. Handguns are more likely to be used as well as shotguns. And 5.56 mm ammo is NOT a super powerful round. Many states ban it’s use in hunting because it is unlikely to provide a stop on larger game animals.

    1. While I agree this stop was likely OK, the term “the weapon of choice” is not as far as I have heard correct.

    2. Yes, it’s not even close.

    3. I’m unsure as to which gun is the most commonly used in mass shootings but I do believe that the AR *is* the preferred platform of choice when hunting coyotes. Also you don’t wear blaze anywhere I’m aware of when ‘yote hunting so wearing all camo clothing doesn’t seem odd or out of place either. That said I’m inclined to think that stopping and asking questions in this instance was acceptable. But that might just be me putting myself in the officers shoes and stopping as a transparent attempt to find new places/people to go hunting with. 🙂

    4. Reads like liberal judges that think AR stands up “assault rifle” and also a “machine gun.”

      Here, I think given the totality of the circumstances there was reasonable suspicion for a stop. However, that suspicion should have quickly evaporated once it was clear that it was a man, old enough to open carry, engaged in otherwise legal activity.

      If states want to give police the tools to conduct legal stops of armed individuals openly carrying firearms, the legislature can easily do that by crafting a constitutional law. But, that isn’t the case in almost every state and the courts shouldn’t be OK with police launching fishing expedition style stops when the law is clear but just not liked by law enforcement.

      1. ” However, that suspicion should have quickly evaporated once it was clear that it was a man, old enough to open carry, engaged in otherwise legal activity.”

        If you believe him when he says “no, I ain’t lookin’ to shoot no people, officer” then it’s clear he’s out to do a legal activity. If you view that claim with some skepticism, however, it is not at all clear.

        1. The thing is, if it’s not clear, you get out of his face. That’s the way things work when somebody is exercising a right.

    5. ” The AR style of rifle is NOT ‘most commonly used’ in ‘mass shootings’, no matter how a ‘mass shooting’ is defined.”

      You’re going pedantic about the wrong phrase. Depends on how you mean “used”. Mass shooters like to take lots of weapons with them when they go out to mass shoot. It wouldn’t be a surprise to find out that most of them took an AR with them.

    6. Don’t confuse the .223 (5.56 mm) with the common .22 round — they are quite different and most of the hunting laws I am familiar with ban the .22 — not the .223.

      Of course, the full metal jacket .223 isn’t an ideal deer round because it will simply go straight through and you really want an expanding round, but that’s true of the .30-06 and .308 (7.62mm) as well.

      1. Several of states restrict .223/5.56 to varmint hunting.

  5. Re, the Kentucky case requiring a warrant. Okay, the home owner says “you can’t live here any longer”, I would expect most states to provide for some reasonable length of time to retrieve belonging (certainly more than a day, perhaps a week or two?). Is SCOTUS really going to say that if the former occupant fears the property owner that a warrant is needed?

    Is there actually a non-arrest seizure warrant that is not styled first as a search? And even seizure isn’t right as the state is not generally taking custody of any property even on a temporary basis.

    1. The case mentions “other court order” at some point. A replevin order or protective order or some sort I guess.

      As the concurrence notes, this is really a consent case. The woman was a resident/tenant and likely had a right to enter and consent to the officer being with her.

  6. “And 5.56 mm ammo is NOT a super powerful round. Many states ban it’s use in hunting because it is unlikely to provide a stop on larger game animals.”

    This is true, but 5.56mm NATO is not the only round available for the AR15 platform. You can get AR15 rifles chambered for other rounds, two of the more interesting are .458 SOCOM and .50 Beowulf.

    1. Which are super dooper more likely to be used in mass murder?

      1. Nope. But I was only commenting on the part I quoted.

    2. Let’s not forget the 6.5 Grendel which has some pretty good ballistics and the .224 Valkyrie which might be the fastest cartridge available in the AR platform.

      1. .50 Beowulf kills 6.5 Grendel. 🙂

        1. And neither one compares positively with a GAU-8.
          I win, mine’s bigger.

          1. And my comment went over your head.

            Basic mythology, In the epic poem Beowulf, Grendel is a monster that is slain by the hero Beowulf.

            Also the 30 x 173mm round is awesome, but can you get an AR-15 chambered for that round?

        2. I see what you did there.

          1. At least someone got it. 🙂

    3. AR15 are short chamber weapons that fire a 5.56 round.

      AR10 are long chamber weapons which fire larger rounds like the 7.62; which makes them 5 ARs better than the AR15.

      As a side note the AR10 was developed first.

  7. re: the DC Circuit – So he’s a bad person with views we don’t like. How does that justify denying bail? None of those offensive beliefs or expressions make him an obvious flight risk. Nor is there any direct threat of violence while he awaits his trial. We let people accused of murder and rape out on bail but you’re going to deny it here because of his mustache? How is that not “clearly erroneous”?

    re: the Fourth Circuit – “military-style clothing” – you mean camouflage so the critters you’re hunting don’t run away? That’s stupidly backwards. The military copied camouflage from hunters, not the other way around. The “weapon of choice” crack is also ridiculously wrong. AR-15s are almost never used in crimes (mass or otherwise).

    re: the Kentucky Trooper – I feel like something’s missing here. If the trooper went “to help one family member retrieve her belongings”, how is that not consent to visit the home? Warrants are not needed where there is legitimate consent. What’s missing?

    re: the ankle monitor – How can people see stories like this and still want to put the government in charge of health care?

    1. re: the DC Circuit… I’ll also add

      Capitol insurrectionist…

      Looks like IJ has fallen for the CNN Insurrection Hoax. Seriously, who believes an “insurrection” uses viking horns and bear spray?

      1. No one said it was a smart insurrection, I mean look who ordered it…

        1. Please, don’t go spewing conspiracy theories. If there were even the tiniest scrap of evidence, it would be all over the headlines.

          1. All the pleas, and contemporaneous social media accounts seem to indicate the insurrectionists thought Trump ordered them.

            Trump knew what kind of hells-broth he was stirring up. Maybe not intent, but certainly gross negligence.

            1. Yeah, and Son of Sam thought the dog ordered him. Jail that dog!

              We don’t hold people responsible for other people’s delusions. PROVE Trump ordered them. If he was issuing orders to that many people there should be proof.

      2. Put people in a social environment where a lie is constantly repeated and where those challenging the lie are denounced and derided, and they’ll eventually believe the lie.

        You can be sure that most Germans in 1933 honestly believed the Reichstag Fire was part of a coordinated Bolshevik insurrection conspiracy; that’s why they nodded along as the Nazis used it as an excuse to consolidate their control.

      3. There was no “insurrection.” It was just tourists taking pictures.

        1. Aside from a hundred or so crimes….

          1. Trespassing IS a crime, sure.

    2. Re the ankle monitor, you are aware it is a private company that put the monitor on his prosthesis, right?

      1. Private company, yes. But hired, paid and supervised by the government. And held (un)accountable just like the government.

        1. The government contracted the work out. The fault is with the company.

          Pound for pound, private industry probably has just as many incompetent people as the government does. Just today, I reviewed a complaint filed by a private law firm to which the wrong exhibit was attached.

          I understand that there is a right wing meme that government does nothing right. But the idea that it screws stuff up worse than the private sector does is just laughable.

          1. Sorry, I screwed up and accidentally flagged Rossami’s comment for review. Is there a way to un-flag it? I guess it’s a good thing my finger isn’t on the nuclear button.

            1. And a better thing that Reason basically ignores flagging, rather than having things set to automatically respond to it.

    3. Re DC Circuit.

      They’re called “political prisoners”. That’s the logic the DC circuit is ultimately using to jail people for months without bail or trial. They’re a “corruption to the union”.

    4. I have to agree. We are missing a substantial chunk of the story. I know short circuit has to be brief, but this is a legal blog. I thought that lawyers were trained to not omit important information.

      However, it is linked. This is explicitly addressed in the opinion

      Ms. Clemons no longer lived there (indeed, she was only a guest at her in-laws after her house burnt down and was in the process of divorcing their son). Even though Christina had a key, the officer was explicitly rejected by the owners, the parents. However, he refused to leave. Christina was also explicitly barred from entering the home. She clearly had no right to enter without her in-law’s permission, and she certainly had no right to invite anyone else in either.

      More importantly, the officer responded to a verbal insult with physical violence. Anyone without a badge would be arrested in the same situation. Qualified immunity should certainly not apply.

    5. Police often come along to keep the peace when somebody goes to collect belongings from an ex or estranged former housemate. Perhaps there could be an express or implied threat, “give her dildo collection back or I’ll arrest you for stealing it.” But they aren’t enforcing a court order and have no right to enter without consent.

    6. “So he’s a bad person with views we don’t like. How does that justify denying bail?”

      Bail is appropriate for people who aren’t expected to offend, or flee justice, while released. Evidence that a person may be inclined to do either one (if released) justifies denying bail.

      “I feel like something’s missing here. If the trooper went ‘to help one family member retrieve her belongings’, how is that not consent to visit the home?”

      You don’t need anyone’s help to retrieve your belongings from your home, but you might need help to retrieve your belongings from someone else’s home.

      “re: the ankle monitor – How can people see stories like this and still want to put the government in charge of health care?”

      Maybe people can see how this doesn’t say anything about the government, in the sense that this was a story about a private entity’s mistake.

      1. “Maybe people can see how this doesn’t say anything about the government, in the sense that this was a story about a private entity’s mistake.”

        A private entity acting on contract with the government.

        You don’t think the government bears some responsibility for supervising their work and insuring that it is of adequate quality?

    7. As to the “military style clothing”, reality is that your standard three piece suit doesn’t do well in the brush. Nor does a “dry clean only” police uniform — and that’s why a lot of departments want tactical (military-style) garb, they want clothing that will stand up to abuse.

  8. So, when I clicked through to the opinion the ‘weapon of choice’ claims was this: “such rifles have been “the weapon of choice for the deadliest mass shooters of the past decade.” The government pointed to “the massacres since 2012 at a movie theater in Aurora, Colorado; at Sandy Hook Elementary School in Newtown, Connecticut; at a holiday party in San Bernardino, California; at the Pulse nightclub in Orlando, Florida; at a music festival in Las Vegas, Nevada; at a church in Sutherland Springs, Texas; and at Marjory Stoneman Douglas High School in Parkland, Florida.”

    1. “at a movie theater in Aurora, Colorado”

      He also had several shotguns and handguns. And as I recall from the news stories at the time, the AR rifle jammed after only a few rounds fired and was abandoned.

      1. It still could have been his ‘weapon of choice’ if he started with it, I guess.

        1. Or he could have saved what he considered the best for last.

          1. Or he just brought it along as a good-luck charm, and meant to leave it in the getaway car.

    2. The AR-15 is the weapon of choice for mass shootings in this carefully curated list of shootings that involved an AR-15.

      1. The Pulse shoot didn’t even involve an AR15. They should have just said “scary black rifle.” Would have let everyone know up front what level of knowledge judges are operating with.

        1. The judge is likely in favor of gun control. In my experience, the gun control movement not only tends to attract people unknowledgeable about guns, it actively discourages talking with anybody who might remedy that ignorance.

          1. ” it actively discourages talking with anybody who might remedy that ignorance.”

            The membership of the firearms-enthusiast community also tends to “actively discourage” anyone with views to the left of “every nut should be allowed to to have any and all weapons they want” from talking to them.

            1. To the left of that? The vast majority of firearms-enthusiast communities have views well to the left of that, sorry James. Disarming felons. Safety training. Registration. Limits on automatic weapons.

              1. I’m sorry, but are you seriously trying to say that the ‘vast majority’ of gun enthusiasts support registration?

                If so, you are completely divorced from reality and have no business speaking on behalf of any 2A supporter.

                1. Agreed. Registration is more of a line in the sand, than something we agree on.

                  “The membership of the firearms-enthusiast community also tends to “actively discourage” anyone with views to the left of “every nut should be allowed to to have any and all weapons they want” from talking to them.”

                  I think our position is more nuanced. Something like, “If you want to deny a “nut” this CONSTITUTIONAL RIGHT, you need more due process than pointing at him and saying he’s a nut. Something closer to a full on trial with the option of a jury.”

                  1. Why can’t we compare gun enthusiasts to sports car enthusiasts — not everyone with a cool car is thinking about outrunning the cops in a high speed chase….

  9. “And based on his history of racist and antisemitic statements, his expressed hopes for a second Civil War, his showing up to work with a Hitler mustache, and an incident involving frozen corn cobs and a potato gun emblazoned with the Confederate Flag and the words “WHITE IS RIGHT,” that decision was not clearly erroneous.”

    So the 1st Amendment doesn’t apply because someone doesn’t like his beliefs?

    1. Reading comprehension. You should try it sometime.

      1. I read the whole thing and have to say most smart 1YL guys would have left out the part about the potato gun firing a frozen corn cob story just to reduce the laughing out loud.

  10. “Religious readers of Short Circuit should stretch their memories all the way back to last week…”

    Atheists and agnostics need not apply, apparently.

  11. “Gov’t contractor affixes ankle monitor to one-legged man waiting to stand trial on gun charge. Guess which leg. While the man’s prosthesis and monitor stay at home, he commits a murder. Can the victim’s family sue the gov’t under the Federal Tort Claims Act for negligently hiring the contractor—a company knee-deep in litigation for a history of falling down on the job? D.C. District Court: No.”
    The strongly Democratic D.C. District Court strikes again.

    1. I think the answer would be yes to some kind of civil liability if it was NOT the government here….

      1. Well, the government argument was that the claim wasn’t allowed under the Federal Tort Claims Act because of the statute’s discretionary-function exception, under the test set in case law by the Supreme Court. The court agreed.

      2. “I think the answer would be yes to some kind of civil liability if it was NOT the government here….”

        Yes, suing the right defendant DOES make a difference.

  12. Capitol “insurrectionist”? Looks like IJ is using this absurd partisan term for some reason.

    1. The real word is “political prisoner”

      1. Could you imagine the hand wringing the left would be doing if a court used a similar analysis for the goings-on of an anti-fa member who was denied bail?

        1. Are you referring to the actual left, here Jimmy, or your imagined version of “the left” that includes anyone who points out when you make overheated complaints about stuff?

  13. Re: DC circuit and denial of bail…

    This is…horrible. Bail is only to be denied in one of two situations under the bail reform act.
    1. The person is a flight risk
    2. The person is a danger to the community (i.e. is going to go out and hurt someone)

    The person here is not a flight risk. They did not commit a violent crime. They entered the Capitol. They did not assault anyone. They did not commit any vandalism. Then they left. They have no history of violent crime. The best there is is a disorderly conduct from 10 years ago, regarding a potato gun that the defendant didn’t even fire.

    What’s relied on for the danger to the community sufficient to deny bail? From the court decision “To the contrary, we explained in Munchel that a person could be deemed a danger to the community sufficient to justify detention even without posing a threat of committing violence in the future. Id. at 1283 (describing the threat of corrupting a union as one such danger contemplated by Congress).”

    I’m astounded. What the court is doing here is justifying imprisoning a non-violent person without bail, for months, because of a “danger to the community” that isn’t violent, but is “corrupting a union”. There’s a word for what this is…..Political Prisoner.

    This is what dictatorships do. They arrest non-violent people, throw them in jail, without a trial, for months. And then they don’t even get bail because “they’re a corruption to the country”. It’s time we really understand this. These are political prisoners.

    1. Bail is only denied if the accused isn’t a Democrat.

      1. And we only charge right wing activists. If you are anti-fa assaulting people, looting, and trying to burn down businesses (sometimes with people inside), the local prosecutor just looks like other way. Or as Pelosi said she doesn’t know why more people aren’t rioting in the streets…

        1. So, on your planet literally nobody is ever arrested for looting, rioting, or arson?

    2. For as much as Trump was accused of being a fascist one thing his administration did not seem to keep around was a glut of political prisoners…

      1. Those brownshirts are his.

        1. Again, evidence.

          1. You never seem to ask Jimmy for any…

          2. Poor Brett, he doesn’t have enough evidence that all those people wearing Trump hats and waving Trump flags were Trump supporters.
            The part where they followed Trump’s instructions (except for the unvoiced part about capturing the Electoral College ballots)… that’s just coincidence.

        2. Regardless of the truth or lack of any “brownshirts”, Trump didn’t have political prisoners like the Biden Administration does. Trump didn’t selectively lock up the people who opposed his presidency, without a trial, without bail, on non-violent criminal charges.

          This is truly an abomination. Take someone who is “tresspassing” or has a “disorderly conduct” charge….arrest them…move them 500 miles or more…keep them in jail for MONTHS without bail, without a trial, because “they represent a danger of corruption to our society”.

          These are political prisoners. And it’s wrong.

          1. That’s nothing. Wait until you hear what the Trump administration was doing with people who came across the border without a visa.

            1. Feeding them, then sending them home as soon as they could?

            2. Feeding them and giving them a free flight back to their home and family, or Guatemala, whichever they wanted?

              1. Both you and Toranth were close, but you seem to have missed a few steps, like separating them from their children and locking them up without bail for extended periods of time.

                1. You seem to have overlooked the “They’re not citizens” part of it. Also the part where any of them could leave at any time, if they were willing to leave in the right direction.

                  By the way, if the police stop you driving under the influence, with kids in your car, guess what?

                  The kids aren’t going into the drunk tank with you.

                  1. Those kids won’t get lost in foster care either.

                  2. “You seem to have overlooked the “They’re not citizens” part of it.”

                    They are still people. The Constitution grants some rights to “all persons”, not (as you seem to think) to “all citizens”.

                2. Tell me, why were they locked up?
                  Perhaps because they were here illegally and refused to leave? Any illegal immigrant (who had committed no other crime) could leave the US at any time just by asking to be deported.

                  I have no sympathy for those that choose to remain in confinement rather than leave.

                  1. So you’re saying that people who do illegal things might suffer the consequences of their actions, and you have no sympathy for them? Maybe you could explain that position to Mr. Armchair Lawyer?

                    1. Since when is trespassing a crime worthy of denying bail, and inflicting months of solitary confinement on people for?

                      The faux perfumed panic about the 1/6 rioters is an excellent example of political persecution after comparison the past year’s worth of examples of little-to-no punishment of violent BLM rioters… which includes the release of people that tried to burn down the White House (and did set fire to some outbuildings).

                    2. “Since when is trespassing a crime worthy of denying bail, and inflicting months of solitary confinement on people for?”

                      For some, it’s a capital offense, sentence to be carried out summarily.

              2. “Feeding them and giving them a free flight back”

                Using those flying school buses?

          2. ” Trump didn’t selectively lock up the people who opposed his presidency”

            Unless they happened to be in Oregon.

          3. “These are political prisoners. And it’s wrong.”

            You try to overthrow a government, you should expect consequences if you fail.

      2. “For as much as Trump was accused of being a fascist one thing his administration did not seem to keep around was a glut of political prisoners…”

        Not because he didn’t want to, he just couldn’t get the Deep State to do it for him.

  14. “Hat in hand: Please listen to our podcast on the privileges and immunities of citizens of the United States, something Justice Washington had a handle on.”

    Had a handle on privileges and immunities? As a slaveowner? What thought is the Institute attempting to express here? What lack of though is being expressed?

    1. I have the same questions about your posts.

      1. Some things I think I think*:

        (1) the liberal-libertarian mainstream has been throttling conservatives in the American culture war for so long as any of us has been alive, shaping our national progress against the preferences of right-wingers

        (2) those right-wingers are becoming increasing bigoted, superstitious, and backward — as the American electorate becomes more diverse, less religious, less rural, less bigoted, and less backward on essentially a daily basis

        (3) an interesting and important question concerns which issue — voting rights, guns, abortion, bigotry, global warming, etc. — is going to precipitate enlargement of the Supreme Court (and how many seats are to be added)

        (4) I hope the snapback against gun nuts does not overrun a right to possess a reasonable firearm in the home for self-defense (I would toss a more symbolic chip — outlawing hunting with guns on public lands, perhaps — to those who defeat the gun absolutists in the political debates)

        (5) It is difficult to decide how many Trump associates and fans — Weisselberg(s), Trump Next Generation, Jan. 6 insurrectionists, Giuliani, Powell, Lindell, etc. — should be (a) jailed, (b) disbarred or (c) bankrupted to effect accountability

        I hope that satisfies some of your curiosity, GKHoffman.

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