Short Circuit: A Roundup of Recent Federal Court Decisions

Topless sunbathing, daily prayer, and vaccine mandates.

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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: Adam Griffin, an IJ constitutional law fellow and a newcomer to the show, joins the panel and talks 'Merica: football, religion, and guns.

  • If you're about to dive into a 13-day trial, it's best to turn over to the other side the documents you'll want to introduce into evidence. Otherwise, you might be barred from introducing any of them at all and have to simply rely on your testimony. And when you've already been sanctioned and allegedly fired for misconduct, the court and jury might be skeptical as to your veracity on the stand. Or so says the D.C. Circuit.
  • In response to inquiries about topless sunbathing, Ocean City, Md. officials pass a public nudity ordinance that bans female—but not male—toplessness. (Men, however, may not be "discernably turgid.") An equal protection violation? Fourth Circuit: Under binding precedent, the law is a permissible means of protecting "public sensibilities." Concurrence: Maybe time to rethink that precedent; could the law constitutionally prohibit showing ankles?
  • After a 10th-grader becomes agitated and exhibits "'predictable manifestations' of his autism," a Shreveport, La. sheriff's deputy at the school tases him, leaving the student incapacitated in a pool of his own urine for 13 minutes. And the student has a plausible claim for discrimination under the Americans with Disabilities Act and the Rehabilitation Act, says the Fifth Circuit. But discovery is needed to show whether the officer actually was deliberately indifferent to the student's disability.
  • Gov't: When Jackson, Miss. police in five or six patrol cars (with lights flashing) boxed in a vehicle, the driver and passenger were free to go. That was not a seizure. Fifth Circuit: Maybe it was. Maybe it wasn't. Doesn't matter. The officers had reasonable suspicion because the two men, who were parked at a convenience store, had suspiciously not exited the vehicle for 10-15 seconds and were parked as far from the store as possible such that they couldn't be seen from within the store. So there's no need to suppress evidence of the contraband found in the vehicle. Dissent: There were few other spots for them to park, and there's nothing suspicious about dawdling for a few seconds.
  • Transgender prisoner, seeking sex-reassignment surgery plus female commissary items and a long hair pass, sues various Texas officials after those requests are denied. In district court, the magistrate judge asks for—and Texas state attorneys provide—the names of the proper defendants, and the plaintiff adds them to the case. Texas state attorneys: Ah, but you didn't sue the right officials. Fifth Circuit: That's so. Also, sorry, but there's no judicial estoppel when it comes to subject matter jurisdiction. Concurrence: Hey district court, seems like there's good cause to amend the complaint. Also, this pro se plaintiff could use some help.
  • Complaint (2013): Conditions in East Mississippi Correctional Facility are "barbaric." Rapes, stabbings, beatings are common. Cells and showers are filthy and vermin-infested. Medical staff ignore conditions like gangrenous wounds. Juveniles are housed with adults. And on and on. Fifth Circuit: Lots has happened since then, including prison officials going to federal prison, and there's no reason to disturb the district court's ruling that by 2018 conditions in the prison were constitutional and that an injunction is unnecessary.
  • In 1992, the Supreme Court said a 24-hour waiting period for an abortion is OK. Tennessee (2015): We'll see that 24 and raise you the same. Sixth Circuit (sitting en banc): The law has a rational basis and "is not a substantial obstacle to abortion in a large fraction of cases." Dissent: The caselaw in this area is super messed up, but anyway that's not how the math works.
  • Starting this fall, all students at Indiana University must be vaccinated against Covid-19, unless they meet a religious or medical exemption, in which case they must wear masks and be routinely tested. Seventh Circuit: Which is fine.
  • Indiana medical providers must inform the state when one of twenty-five complications arising from an abortion occur. Seventh Circuit: The law doesn't provide guidance as to what temporal or causal relationship is required between the abortion and the complication, which presents some serious void-for-vagueness concerns. But not enough concerns for us to declare it facially unconstitutional, given that the state agency hasn't issued guidance on it, the state courts haven't interpreted it, and the core of the statute is clear. Dissent: The law is incomprehensible; our duty is to strike it down.
  • It's Brennan/Easterbrook vs. Wood as the Seventh Circuit goes on a deep dive into the sufficiency of the evidence in a gang shooting of an ATF agent in Chicago's Back of the Yards neighborhood.
  • Following a remand from the Supreme Court, the Ninth Circuit holds that Alaska's $500 contribution limit to state political candidates and groups is unconstitutionally low. Also out is the state's $3k aggregate limit on what a candidate may accept from out-of-state contributors. Dissent: The $500 limit is not too low, and the $3k limit is no different from the prohibition on foreign contributions upheld in Bluman v. FEC, written by then-Judge Kavanaugh. (Ed.: Kavanaugh was wrong.)
  • Man who had been behaving suspiciously at a laundromat flees from Anaheim, Calif. police officers after they tase and choke him. They catch him and tase and choke him some more. He dies. Jury: Which was excessive force. Pay $13.2 mil to his family, including $3.6 mil for loss of life. Officers: California law doesn't allow damages for loss of life. Ninth Circuit (over a dissent): Section 1983 does. It's a statute designed to deter and remedy constitutional violations, including the unconstitutional loss of life.
  • In which the Ninth Circuit has a question for the Montana Supreme Court: "Under Montana law, do law-enforcement officers act within the course and scope of their employment when they use their authority as on-duty officers to sexually assault members of the public?" Because if not, a woman who alleges a Bureau of Indian Affairs officer raped her and got her pregnant doesn't have a claim under the Federal Tort Claims Act.
  • In which the Tenth Circuit concludes that a group objecting to campaign finance disclosure lacks standing to challenge the law—which had previously been enforced against them—because they're just too damn brave to have their speech chilled in the future.
  • Allegation: Parolee is sent back to jail after he declines to attend bible study, morning prayer, and daily chapel as required by Fort Collins, Colo. halfway house. District court: Qualified immunity. Tenth Circuit: Reversed. He can sue his parole officer and (over a dissent) the director of the halfway house, who is a state actor for purposes of Section 1983.
  • And in en banc news, the Seventh Circuit will not reconsider its ruling that there's no point in reviewing a Mexican cartel enforcer's challenge to his 45-year sentence on firearms offenses because the sentence is stacked on top of seven life sentences for kidnapping. Judge Wood, joined by two others, would grant rehearing.

Ever driven with a license plate holder covering up part of the innocuous motto at the bottom, like "Empire State" or "Land of Lincoln"? If you did and passed through New Jersey you'd be subject to a ticket and pretextual traffic stop. After this happened hundreds of thousands of times, the state supreme court ruled this week that it's not actually a violation unless the motto's fully covered. But what about evidence obtained because the police got that law wrong? The U.S. Supreme Court has said that's hunky-dory under the Fourth Amendment. But the New Jersey Constitution provides more protection, as Anthony Sanders, the director of IJ's Center for Judicial Engagement, explains over on our regular feature, the State Con Law Case of the Week.

NEXT: The Third Amendment Lawyers Association (ÞALA) Opposes Eviction Moratorium

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  1. “…..had suspiciously not exited the vehicle for 10-15 seconds and were parked as far from the store as possible such that they couldn’t be seen from within the store.”

    What? I’ve pulled over to convenience stores in order to receive a phone call (and I needed to locate a document in my purse to confirm some info) and made sure to park away from the store so that I wouldn’t take up a parking space used for paying customers. This is probably cause?

    1. Totally agree. Maybe they were kissing, maybe they were having a heart to heart, maybe it’s a thousand things, It’s “probable cause” when two men seek a moment of comparative privacy in a public place? The Fifth Circuit needs to read a little Emily Dickenson:

      Assent – and you are sane –
      Demur – you’re straightway dangerous –
      And handled with a Chain –

      1. And, maybe they were having a heart to heart with Google maps that was trying to send them through the worst part of town, taking them three miles out of the way to their destination. It happens a lot. I think Google has a deal with the criminals to send the victims directly into their arms.

        I truly wish common sense was common.

        1. If you look at the panel, Elrod dissented. She’s not exactly a bleeding heart either. When even someone like her disagrees, that should be something of a red flag.

        2. Don’t laugh. Google maps has (or had) an option to select either the shortest or the fastest route to your destination. I stupidly chose “shortest” on the way between Indianapolis and Evansville, Indiana . Google routed me on “Naval Surface Warfare Center Jeep Trail Number 2”. I changed the option to “fastest”, needless to say.

          1. Meh. I wanted to go from Mableton, GA to Morrisville, NC. 5(!) hours in to what should have been a 6-hour trip, Google still hadn’t routed me to I-85

      2. The court here did not, in fact, find that there was probable cause based 9n the officer’s observations before approaching the car.

    2. The case, legally speaking, is outrageous, but one look at a picture of the defendant made me not give a shit.

      https://cloudfront-us-east-1.images.arcpublishing.com/gray/SKOJQ7PRQZF55FIPG56MBAP3EY.jpg

      1. One look at the picture of the defendant made me wonder why you think he is less deserving of his constitutional rights than anyone else.

        1. Some people can just look at a person and tell if they’re guilty or not.

  2. In which the Ninth Circuit has a question for the Montana Supreme Court:….

    Can someone please explain why this even needs to be asked?

    In which the Tenth Circuit concludes that a group objecting to campaign finance disclosure lacks standing to challenge the law—which had previously been enforced against them—because they’re just too damn brave to have their speech chilled in the future.

    While it’s true they are that brave, that’s not how things work.

    1. On the CQ, it’s the FTCA. Even though it’s pretty obvious what the answer would be, if there’s no state appellate decision on point, they must ask with a CQ.

    2. In which the Ninth Circuit has a question for the Montana Supreme Court:….

      Can someone please explain why this even needs to be asked?

      I think the gloss here explains it pretty well: if the answer is “no”, then the plaintiff cannot sue the government over it; if the answer is “yes” then she may be able to.

      If you’re asking why the Ninth Circuit asked the Montana Supreme Court to answer the question instead of doing it themselves, the order explains that as well: there is a Montana case saying the answer is “no” in the non-law enforcement context, but there are also cases from other states saying that the answer is “yes” for law enforcement officers, so they want to give the state court an opportunity to resolve the important question of state law.

    3. Seems like the court’s loading the question. The correct answer depends on the specific facts.

      In this case, part of what the cop was doing was exercising his discretion over whether or not to arrest her, which is within the scope of his employment.

    4. The Tenth’s position on chilling speech is crazy.
      If you are willing to speak out on anything at all, you cannot have been chilled from speaking out on any specific topic?
      The mere “concern” of future suppressed speech does not mean that future speech was actually suppressed, therefore there is no concern?
      You do not have any fear of prosecution under a statute if you have previously been threatened with prosecution under that very statute?

    5. Not everything a cop does is within the scope of employment. The law about when they are acting within or outside the scope of employment is actually somewhat complex and varies state to state (for both cops and private individuals). The question is being asked because if it is within the scope of employment the government can be sued, if it isn’t then they can’t but he can be in his individual capacity.

      1. Yeah, that law is a mess, all around. It really needs to be cleaned up and the rule really needs to be “not THIS SPECIFIC ILLEGAL THING, of course that’s not in the scope of your employment, but more broadly did you do this on your own time or on your employer’s time” (roughly, I understand this is still a complex question and it needs to be written more carefully, but that’s the gist of it). Maybe it’s just a reasonableness standard like “Would your employer reasonably have expected you to be doing your job instead of this illegal thing you were doing at that time”

  3. (Men, however, may not be “discernably turgid.”)

    But it’s okay for women.

    1. Some day I’m gonna make you Mrs. Buck Turgidson!

    2. Women who are “discernably turgid” while fully clothed would probably have a good career on OF.

    3. “(Men, however, may not be “discernably turgid.”)”

      Just think about baseball.

  4. In that Fifth Circuit case, Judges Edith Jones and Jerry Smith — a couple of Reagan fossils — demonstrate anew that they are quite a pair of authoritarian, big-state ‘people who provide succor to cops.’ *

    At least with respect to Judge Smith there is no evidence of which I am aware that he is a vestigial racist, too.

    * Prof. Volokh has forbidden use of the concise version. He claims it is consequent to ‘civility standards,’ but ample evidence demonstrates that the standards on which he relies are illusory.
    Instead, he just can’t stand when someone pokes fun at right-wingers too deftly. But . . . his playground, his rules, so the hypocritical censorship stands.

    1. That’s what I was sort of getting at above. When you’ve staked out a position so reactionary that even Elrod takes a pass, it might be time to reconsider…

      1. Nah. Most of these clingers will go down with the ship. But don’t worry . . . We will teach them the meaning of the word ‘respect.’ We may even make them bark like a dog, just for the chuckles.

    2. Arthur, I don’t get ‘people who provide succor to cops.’ Is that sorta like, “rooster” “lickers” ? Sorta like the last word in the bumper sticker that appeared after Nixon fired Archibald Cox: “Impeach the Cox-sacker”?

      1. Yes, Prof. Volokh deleted a post where Arthur Kirkland used the term “cop succor”. (For what it’s worth, while it’s not exactly Algonquin Roundtable material, it’s not something I would have deleted, particularly in light of the far more offensive and egregious material that crops up every day. I also probably would have let it go by now, though.)

  5. Parolee is sent back to jail after he declines to attend bible study, morning prayer, and daily chapel as required by Fort Collins, Colo. halfway house.

    WTF is wrong with these people – by which I mean the people running the halfway house.

    1. Wow. I actually had interaction with Officer Gamez in the parolee department and he was a complete fucking tool.

      I took someone to their meeting with him, and while I was waiting for the meeting to end, Gamez came out to the waiting room, and demanded my SSN because he was authorized to ensure that the parolee was not interacting with any felons.

      At the time, I wish I’d told him to go fuck himself, because demanding my SSN was a clear violating of my own rights. Instead I gave it to him, and he wasted his time finding out that I have no criminal record of any kind.

      He also perjured himself in the subsequent parolee hearing related to that particular day, as he ended up arresting my former friend on the claim that he didn’t attend the meeting that *I* took him to.

      Absolutely a piece of shit with a badge.

    2. WTF is wrong with these people – by which I mean the people running the halfway house.

      This reminds me of the well-worn rule that the one who complains about the food becomes the next cook. Perhaps you should open up your own halfway house and show us how it’s done.

      1. You sound like the type of especially gullible clinger who figures there’s nothing that can’t be improved with some downscale fairy tales. Do you blame childhood indoctrination, or are you a case of adult-onset superstition?

      2. Or maybe the state of CO shouldn’t let religious fanatics manage halfway houses.

        1. “Let”? It’s cute you think there are scores of organizations lined up fighting to take on this sort of generally thankless work.

          Again, belly up to the bar if you think you have a better model. Particularly given the past year’s skyrocketing substance abuse, I suspect you’ll be able to take on all the market share you care to.

          1. Taking market share only helps if you’re earning a profit. There is, indeed, a small contingent of people who want to help people for little or not profit, or even taking a loss on the deal.
            Forcing people to convert to your flavor of religion may feel like a win, but it really isn’t.

    3. You mean an organization that helps people with a religious bent, as has been done through history, long before government stuck its nose into such things?

      1. They’re sure doing some great helping here.

      2. people with a religious bent have been “helping” other people find their religion by force for most of history, so that checks out.

    4. “WTF is wrong with these people – by which I mean the people running the halfway house.”

      They think they’re helping.

  6. “The officers had reasonable suspicion because the two men, who were parked at a convenience store, had suspiciously not exited the vehicle for 10-15 seconds and were parked as far from the store as possible”

    Really? Good lord.

    “In which the Tenth Circuit concludes that a group objecting to campaign finance disclosure lacks standing to challenge the law—which had previously been enforced against them—because they’re just too damn brave to have their speech chilled in the future.”

    Standing is so messed up.

  7. “and were parked as far from the store as possible”: That doesn’t make any sense. For example, they could have parked in Fairbanks, Alaska, which is 4,082 miles by road from Jackson, Mississippi. Or even Deadhorse, Alaska (by Prudhoe Bay), 4,562 miles by road from Jackson, Mississippi. Even within a 3-minute walking distance, I’m sure there were many places they could have parked at a greater distance from the store.

    1. There was more to it than “as far from the store as possible”. They were parked “at the store”… which has a range. If they were parked in Fairbanks, they’re farther from the store, but then they aren’t really parked at the store in Jackson.

      1. James, thank you for coaxing me to read the opinion. It actually says, “The officer saw a car parked in the convenience store lot as far as possible from the storefront…”, which of course does rule out Alaska. The dissent notes, “The small parking lot offered few other parking options besides the spot Flowers chose.”

        This is an appalling decision and the dissent is correct in concluding that the decision “comes dangerously close to declaring that persons in ‘bad parts of town’ enjoy second-class status in regard to the Fourth Amendment.” Except it’s worse than that: the decision doesn’t “come close”, it actively crosses the line. If sitting in a car for ten seconds is probable cause then we live in a police state.

        1. Just wait for this case to be cited as precedent for supporting the idea that a search of a house was proper because there was a car parked in the driveway instead of in the garage.

        2. If sitting in a car for ten seconds is probable cause then we live in a police state.

          Then I guess it’s fortunate that the court didn’t hold that the officer’s observations established probable cause.

    2. This seems like an remarkably silly criticism. Whether or not you think it established reasonably suspicion, I find it utterly impossible to believe that you had even an instant of confusion as to the factual description.

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