Short Circuit: A Roundup of Recent Federal Court Decisions

Web design, pork production, and the Second Amendment at the Second Circuit.

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

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• In 2017, Turkish President Recep Tayyip Erdogan visited Washington, D.C., where he was greeted by anti-Erdogan protestors, whom Turkish security officials beat the snot out of. D.C. Circuit: Neither foreign sovereign immunity, nor the political question doctrine, nor international comity is a valid defense to the said forcible snot extraction.
• Wife of exiled Russian businessman sues playwright and director over Kleptocracy, a play in which she is portrayed, by name, as a prostitute and murderer. D.C. Circuit: The play also depicts Vladimir Putin reciting poetry to a stuffed Siberian tiger. It's too fantastical for anyone to reasonably believe it portrays actual historical facts.
• Plaintiffs: We can only get firearm permits in Connecticut if a government official takes our fingerprints for a background check, so it violated our Second Amendment rights when Connecticut agencies stopped taking fingerprints as part of the state's COVID-19 emergency response. Second Circuit: They stopped, but then they started again, so everything's moot.
• Second Circuit criminal-defense pro tip #1: If your client, shoeless and disheveled, repeatedly bites a Border Patrol agent while purporting to arrest him (with his own handcuffs) for his participation in a "great cabal to eat babies," effective assistance of counsel might—might—require you to introduce expert evidence in support of an insanity defense.
• Second Circuit criminal-defense pro tip #2: If your client is going to confess to being a "sleeper" agent of an international terrorist organization pursuant to a promise of immunity from prosecution, make sure the government has, y'know, promised to give him immunity.
• Second Circuit: Plaintiffs who entered into a contract with a "multi-level marketing" company may have agreed to arbitrate their disputes with the company, but that does not mean they must arbitrate their dispute with former President Donald Trump, who allegedly fraudulently induced them to sign the contracts.
• If you had claim preclusion, Indian lands, and the subtle legal difference between "electronic bingo" and "slot machine" on your card, then this Second Circuit opinion is a bingo.
• District court: The Second Amendment may protect an individual right to keep and bear arms, but that right really just protects against blanket bans on anyone owning firearms, not against the government forbidding you, personally, from doing so. Second Circuit: We're pretty sure individual rights are about individuals.
• OK, but does the Second Amendment protect undocumented immigrants and bar a federal law that prohibits them from possessing a gun? Second Circuit: We won't categorically decide that today, but the law constitutionally applies to the defendant in this case, who illegally entered and stayed in the U.S., never filed federal tax returns, and was never employed on the books. Concurrence: The court should just say "that illegal aliens lack protection under the Second Amendment."
• Allegheny County, Pa. jailor is fired after he complains that a colleague called his biracial grand-niece a "monkey" and sent a series of racially offensive text messages about their coworkers. District court: A white jailor cannot maintain a retaliation claim under Title VII. Third Circuit: Not so. Harassing someone who associates with a person of another race may well create a hostile work environment, and Title VII protects all employees from retaliation for filing a complaint.
• Third Circuit: Stop applying Rooker-Feldman!
• In narrow circumstances, a federal prisoner can file a petition for habeas corpus if he is procedurally barred from filing another collateral attack on his sentence. But those circumstances, says the Fourth Circuit, don't reach far enough to help this former corrections officer who was convicted in connection with the brutal death of an inmate.
• Government agents' seizure of attorney-client privileged materials is a big deal, the Fifth Circuit reminds us, ordering a district court to reinstate a healthcare company's motion for return of its property.
• In this Fifth Circuit case, we once again observe the time-honored saying that a man who represents himself has a convicted felon for a client. (Is that the saying? We didn't have time to look it up.)
• In which the Sixth Circuit takes judicial notice of the fact that it does not have a time machine, which means plaintiffs' requests for injunctions granting them greater access to the ballot in 2020 are moot.
• Invoking the Public Health Service Act of 1944, the CDC imposes—and subsequently extends—a nationwide eviction moratorium. Owners of rental property sue, alleging the moratorium exceeds the CDC's power. Sixth Circuit: And they're right. The law gives the Surgeon General power to "provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary." The eviction moratorium goes too far. Concurrence: This is a textbook example of why we have separation of powers.
• Asthmatic prisoner seeks compassionate release because of the risk of COVID-19. Seventh Circuit: Sorry, but the law requires prisoners to show "extraordinary and compelling" reasons for immediate release. Now that there's an effective vaccine, that option is off the table.
• Court: Are you sure you don't want your lawyers to make a closing argument in the penalty phase of your quadruple murder trial?
  Defendant: Yes.
  Court: Really, really sure? Like, 100% sure?
  Defendant: Absolutely, unequivocally sure.
  Court: This is a death penalty case, you know.
  Defendant: Only Allah can decide whether I live or die.
  Jury: About that…
  Eighth Circuit: The defendant's ineffective-assistance claim fails.
• The Beef Promotion and Research Act of 1985 imposes a $1 per head fee on cattle sales. The money goes to "state beef councils," which use the money on ad campaigns to "strengthen the beef industry's position in the marketplace." And there's a similar program for pistachios, which directs the money to the California Pistachio Commission to promote pistachio sales. Ninth Circuit: Since the pistachio promotion was government speech, the beef promotion is too. The ranchers challenging the fee can't bring a claim about being compelled to subsidize speech they dislike. [Your editors think this is a good place to mention the concept of public choice theory.]
• California bans pork not produced according to certain animal-welfare requirements. Pork producers: But, practically speaking, everyone is going to have to follow California's standards. That's a dormant Commerce Clause violation. Ninth Circuit: We didn't buy that theory for foie gras, and we're not buying it now. Case dismissed.
• Does a California order mandating remote school violate the fundamental right to attend public school? Private school? Ninth Circuit: No. Yes. Dissent: The state has resumed in-person instruction. The case is moot, and the majority overreads the Supreme Court's private school decisions.
• When police arrest someone driving a car, they may impound the car for public safety. Impounding demands inventory searches. Surely police wouldn't impound a car as a pretext to search for evidence of a crime, right? Indeed they do, shows the Tenth Circuit, which reverses the convictions based on this evidence. Dissent: Police need only act reasonably in deciding to impound a car; they need not exhaust all other options, as the majority suggests.
• Colorado website designer refuses to create websites celebrating same-sex marriage, which she believes conflict with God's will. This runs afoul of state anti-discrimination law. Does the law run afoul of the First Amendment? Tenth Circuit: No. The law survives strict scrutiny under the Free Speech Clause and, as a neutral law of general applicability, it survives the Free Exercise Clause. Dissent: "[T]his case represents another chapter in the growing disconnect between the Constitution's endorsement of pluralism of belief on the one hand and antidiscrimination laws' restrictions of religious-based speech in the marketplace on the other."
• El Paso County, Colo. patrol sergeant vocally supports his boss's opponent in upcoming sheriff election. He also shares with a local newspaper alleged misconduct in the sheriff's office. Two days after the newspaper publishes its story, the sheriff fires the sergeant, who responds with a First Amendment lawsuit. Sheriff: Qualified immunity. Tenth Circuit: No. Every reasonable official in the sheriff's position would've understood that they couldn't fire someone for reporting misconduct to the newspaper.
• Royal Caribbean Cruises offers no refunds for passenger cancelation within 14 days of a voyage, which means that passengers on a "cruise to nowhere" were forced to travel to Texas while a Category 4 hurricane was barreling down on the state. On the day of the cruise, Royal Caribbean canceled, leaving passengers stuck in hurricane conditions. Passengers sue. Eleventh Circuit: Remanded because of some jurisdiction thing. [Ed.: We only summarized this case as an excuse to link to this famous Harper's article by David Foster Wallace.]

Comments

[Brett Bellmore]

"Dissent: "[T]his case represents another chapter in the growing disconnect between the Constitution's endorsement of pluralism of belief on the one hand and antidiscrimination laws' restrictions of religious-based speech in the marketplace on the other.""

In theory, since only one of those is an actual constitutional value, there shouldn't be any question which wins...

[Queen Amalthea]

Government's interest need not be in defense of a constitutional provision for it to be compelling.

[Brett Bellmore]

But in a conflict between a statute and the Constitution, the statutes are supposed to lose. Highest law of the land, and all that.

[Krychek_2]

So if the 9/11 hijackers had been caught, and put on trial, and their defense had been that they were practicing their religion, which they were, you're telling us that since laws against terrorism are merely statutory, that they should have won? Is that what you're telling us?

And if that's not what you're telling us, then how would that case have been different from this one?

[Davy C]

I would argue that there's a constitutional right to life, but it's still a good point.

[James Pollock]

All of terrorism is killing people to send a message. In that context, killing people is both action and speech. I'm OK with keeping the law of general application (it's not OK to kill people), even though it limits some speech. YMMV.

[Longtobefree]

"It's too fantastical for anyone to reasonably believe it portrays actual historical facts."

Really?
Ladies and gentlemen, I give you the last 18 months!

[James Pollock]

You can't distinguish between Calvin from "Calvin and Hobbes" and Vladimir Putin? What events of the last 18 months clouded this up for you?

[Rev. Arthur L. Kirkland]

Nothing says "America First" quite like an administration that lets foreign wingnuts beat American citizens on America soil . . . right, clingers?

One more reason Trump deserves everything that is coming to him. Release his tax returns. Prosecute him. Bankrupt him. Deny him hair die and bronzer in prison.

[Queen Amalthea]

I'm hardly a fan of Trump but I don't see how this is his fault.

[Rev. Arthur L. Kirkland]

Erdogan was Trump's pal. Trump liked the idea of roughing up political opponents. The Turkish thugs were accommodated, and Americans beaten, outside an embassy with little or no federal security interference.

Had educated, decent Americans been beating half-educated, superstitious, bigoted right-wingers, Trump (and the Office of Foreign Missions) likely would have responded to protect his clingers.

[James Pollock]

"I’m hardly a fan of Trump but I don’t see how this is his fault."

The buck stops where?

[Rev. Arthur L. Kirkland]

Judge Eid of the Tenth Circuit is an especially enthusiastic provider of slobbering succor to cops (I'll leave it at that, consequent to Prof. Volokh's itchy censorship finger) and just another reliably authoritarian, Trump-inflicted clinger.

[Aladdin's Carpet]

I am a supporter of the non-delegation doctrine, but Thapar's concurrence in the eviction memorandum decision was patently ridiculous.

In other words, there is one extremely weak example of the non-delegation doctrine at the founding, which is a rejected proposal about defining postal roads. No one today actually thinks if Cogress delegates the right to define postal roads that is a problem. The first congress probably didn't think that either, just a few congressmen used it as an argument.

This example is used more often by opponents of the doctrine than supporters, because of how ridiculous it is. And yet that is the core argument of Thapar's concurrence, which is dumb! There is a world of difference between the power to define postal roads and the power to ban evictions everywhere, so say that!

[Brett Bellmore]

"The first congress probably didn’t think that either, just a few congressmen used it as an argument."

Or maybe the first Congress DID think that, and the modern Congress has just given up on caring about constitutional violations.

[Aladdin's Carpet]

Then we are assuming the first congress believed delegation of postal roads was impermissible but delegation of all of admiralty law is. That isn't a reasonable standard.

My contention is not that you can't make the argument that a non delegation doctrine was there. My contention is that the example Thapar gave was the worst possible example one can give.

[Beldar]

The Harper's article is entertaining, although its author blasphemes against Dr Pepper in his unwonted praise for the counterfeit upstart Mr Pibb.

[BillyG]

I'll have a Cheerwine

[Brett Bellmore]

That stuff is truly abominable.

[SomeGuy 2]

Defendant: Only Allah can decide whether I live or die.
Jury: About that…
Eighth Circuit: The defendant's ineffective-assistance claim fails.

Unreal. Can't tell from the opinion whether he was pro se or some lawyer actually argued this nonsense, but if made by a lawyer this case is Rule 11 frivolous. His attorneys tried to explain to him that he was making a stupid decision, the judge confirmed it with him twice, what the heck were his lawyers supposed to do? Let me guess, had the defense counsel made a closing argument against your wishes and the jury gave you death anyway, you'd be arguing THAT was ineffective assistance of counsel.

[BillyG]

He got the death penalty. Qed his council was obviously ineffective. If they were effective he would have been acquited! (End sarcasm)

[James Pollock]

He had Allah on his side! Isn't there a religious difficulty in claiming that Allah is incompetent?

[Aladdin's Carpet]

"had the defense counsel made a closing argument against your wishes and the jury gave you death anyway, you’d be arguing THAT was ineffective assistance of counsel"

This came up to the Supreme Court once, and, over an Alito dissent, the court ruled in favor of the ineffective assistance of counsel claim.

That case is pretty much the only time I agreed with Alito on a criminal justice issue.

[SomeGuy 2]

What? In that case, this is even crazier than I thought, because with all due respect to Alito he was on the losing side in the case you describe. So this litigant is now essentially arguing that it was ineffective assistance of counsel to not do something that SCOTUS says is ineffective assistance of counsel? Ugh. I understand lawyers have more leeway in death penalty cases, but this is preposterous.

[Dr. Ed 2]

Speaking of "crazy", what if he is?

The judge is not a Voodoo Scientist, not qualified to assess mental state, and what would happen if (presumably credible) evidence was now introduced that the perp's decision to refuse counsel was caused by mental illness?

Raises lots of interesting questions, doesn't it?

[James Pollock]

"what would happen if (presumably credible) evidence was now introduced that the perp’s decision to refuse counsel was caused by mental illness?"

Pretty much nothing. If the guy was mentally ill, and not just religiously zealous, then the time to bring that up is prior to putting him on trial. See the "lack of a time machine" opinion.

[Noscitur a sociis]

This came up to the Supreme Court once, and, over an Alito dissent, the court ruled in favor of the ineffective assistance of counsel claim.

Which case are you referring to?

[Kenneth Almquist]

The District Court issued a certificate of appealability on the question, which it wouldn't have done if it agreed with you that the argument was frivolous.

[Titus PUllo]

Man did the Feds force the courts to twist themselves in knots when they decided to load up the CRA of 1964 with a govt right to tell sellers they had to sell under certain conditions but buyers can discriminate all they want. They really should have thought about stopping at ending govt discrimination or passing laws forcing people to discriminate. And allow a free society..and we would not have these issues and a divided country...liberty really should trump social outcomes..

[James Pollock]

You're complaining about the wrong civil rights act. You want the one that Colorado passed whenever they passed it. The federal one doesn't actually cover refusing service to people because you think they're gay. Race, sex, national origin, and age are the federal ones.

[AmandaGreen]

There are such companies, for whose product or service, the queue is built up in a day or two. All that sellers do in this case is take payment for themselves, and give people the goods for which they paid https://mediaonemarketing.com.sg/15-top-facebook-marketing-agencies-in-singapore/ . They do not need to think about how to persuade a person to buy something from them: everything happens naturally. He comes himself is already set up to buy, and it was marketing that made the effort for this. It is thanks to him that the sale is realized.

[Shamie Ervin iv]

"Neither foreign sovereign immunity, nor the political question doctrine, nor international comity is a valid defense to the said forcible snot extraction."

Bwaaaaaaaaah*************! John Ross is a national treasure.

[Dr. Ed 2]

The California Pork issue raises a very interesting issue with states that want to preserve local dairy farms.

For example, the State of Maine imposes a minimum price that farmers must be paid for milk, which doesn't apply to milk products that are produced out-of-state, e.g. milk powder and canned milk.

Could Maine turn around and demand that everyone selling a milk product in Maine pay their milk producers the Maine Minimum Price for raw milk -- that producers of powdered and canned milk pay the Maine price on *all* their purchased milk if they wish to sell any of it in Maine?

There's a lot of issues here, including those raised by "filled" milk a century ago.

[Dr. Ed 2]

The other question involves the sale in California of products *containing* pork -- cans of baked beans comes to mind.

After Maine banned the canning of lobster, the Burnham & Morrill Company started canning baked beans -- and while they are now owned by some conglomerate, B&M Baked Beans are still produced in the same factory on the Portland (ME) waterfront that they were overa century ago. And while they may produce a Kosher version, the authentic Maine version of baked beans include pieces of salt pork.

Can California ban the sale of cans of B&M Baked Beans because the piece of Salt Pork came from a pig that wasn't raised in a manner approved by the State of California?

How far does this go???

[James Pollock]

"Can California ban the sale of cans of B&M Baked Beans because the piece of Salt Pork came from a pig that wasn’t raised in a manner approved by the State of California?

How far does this go???"

The borders of California, unless some other state bans products from being sold in their states unless they can also be sold in California... which is a thing that actually exists.