Short Circuit: A Roundup of Recent Federal Court Decisions

Skid Row, family visits, and an absence of tattoos.


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

Wilmington, Del. outsources its impound program to private companies and "pays" them by giving them the power to keep and scrap people's cars. To no one's surprise, the system is rife with abuse. It's also unconstitutional, which is why this week IJ launched a suit to end Wilmington's tow-and-impound racket once and for all.

  • Fed Courts nerds, get HYPED: On top of the usual writ of supervisory mandamus, there is, your editors have learned, an even rarer writ of advisory mandamus. Which means the First Circuit can review discovery orders over which it otherwise wouldn't have jurisdiction. The upshot? A group of truckers alleging that Rhode Island's former governor and other officials intended for a toll system to discriminate against interstate commerce will not be getting their depositions, thank you very much. Because who really cares what lawmakers intended?
  • A photo of Good Day Philadelphia host Karen Hepp ends up on Facebook, without her consent, in an advertisement for a dating service. Not great for a well-known TV host (or honestly, anyone). But websites usually can't be held liable for user-generated content. Can Hepp sue Facebook anyway? Third Circuit (2-1): Indeed she can. The protection for websites doesn't extend to intellectual property, and that includes "right of publicity" claims. No personal jurisdiction over Imgur and Reddit, though, despite the "indecent user commentary" on the photo.
  • "Though the Ex Post Facto Clause rarely appears in casebooks or civics classrooms, the Framers ranked it among the Constitution's most fundamental guarantees." So says the Third Circuit, holding that a murderer will get at least a chance to enforce the clause. Long after the man went to prison, New Jersey changed the rules to make it harder to get parole. If, says the court, those changes created a significant risk of prolonging the man's incarceration, they're unconstitutionally retroactive and can't be applied to him.
  • Fed up with a private citizen's repeated open-records requests, Conyngham Township, Pa. officials turn the tables by serving him with an open-records request of their own, demanding his tax records and other personal files. Which, says the Third Circuit, is both super weird and perhaps grounds for a First Amendment retaliation claim.
  • Not with a bang, but with a birthday: The Fourth Circuit vacates its earlier decision invalidating the federal restriction on buying guns when under 21 because the sole plaintiff in the case has now turned 21.
  • A car illegally stopped in the dead of night, a pressure-washer, and an intransigent Libertarian candidate for president all add up to a grant of qualified immunity in this Fifth Circuit case. (Judge Willett, in dissent, would rather have a jury wrestle with this strange scenario.)
  • Louisiana: A 30-year-old consent decree about one judicial district obviously immunizes us from any Voting Rights Act suits about our other judicial districts, right? Fifth Circuit: We're honestly a little mad at you for even making us explain why that's wrong.
  • Sovereign citizen insists he is the rightful heir to and owner of an 1848 land grant currently used for mining and timber harvesting. Which, says the Fifth Circuit in a shocking twist, he is not.
  • Can Scott County, Tenn. be held liable for being "recklessly," "deliberately indifferent" to a pretrial detainee's serious medical needs? Or must jail staff have subjectively known that they were acting with deliberate indifference? Sixth Circuit (over a dissent): Recklessness will suffice. So the case of a pretrial detainee who was denied medication, after which she suffered a slew of seizures and drank out of the toilet, goes back to a jury.
  • Medina, Ohio restaurant sues its insurer, seeking coverage for business losses incurred because of the pandemic and associated shut-down order. Sixth Circuit: Insurance contracts may be mind-numbingly convoluted, but one thing is clear—this restaurant is out of luck.
  • Kentucky prisoner gets in a scrap with his cellmate during which he ruptures his plantaris muscle. (He also has his eye gouged out, but don't worry, he "shove[d] it back in with his palm.") The rupture causes a hematoma, leading to a "painful, softball-size mass on his calf." Prison doctors decline surgery, prescribe the tincture of time. He sues. Sixth Circuit: That's actually the standard of care for this injury, which typically resolves on its own, so no liability. Also, the prisoner owes defendants' expert witness $1,800 for his two-hour deposition.
  • Love may know no bounds, but the Hague Convention on the Civil Aspects of International Child Abduction certainly does. In October 2017, Australian man strikes up online romance with Bostonian woman. She visits him that December. They're married two months later. She becomes pregnant soon after. And amid a raft of troubling allegations about the husband's abusive behavior, they separate three days after the child's birth, with the wife promptly returning to America with the child (and allegedly with the husband's blessing). A year passes, after which the husband petitions to have the child returned to Australia. Sixth Circuit: No dice; the child's home is in the U.S. of A.
  • Practice pointer: If you're a pro se appellant and the Seventh Circuit recruits a D.C.-based Latham & Watkins attorney to represent you for free, consider doing anything other than, well, ignoring the lawyer and telling the court thanks but no thanks because Latham isn't a local firm. Panel: "To the extent that [the appellant] may believe he can reject lawyers until we manage to recruit one he likes, he is mistaken." The order recruiting counsel? Rescinded. The appellant's pro se briefs? Reinstated. The district court's judgment? Summarily affirmed.
  • Iowa jail has a policy of not allowing visits with minor family members, meaning that this pretrial detainee was denied the right to see his two kids for nearly a year. A constitutional violation? Eighth Circuit: Yes, but not a clearly established one. Qualified immunity . . . this time.
  • Residents of L.A.'s Skid Row neighborhood, tired of homeless encampments, bring suit against the county and city. The district court finds that L.A.'s homelessness crisis is the result of structural racism and issues a "sweeping" preliminary injunction, requiring, among other things, "the escrow of $1 billion to address the homelessness crisis, offers of shelter or housing to all unhoused individuals in Skid Row within 180 days, and numerous audits and reports." Ninth Circuit: That's a problem because none of the plaintiffs' claims was based on racial discrimination, "and the district court's order is largely based on unpled claims and theories." Injunction vacated.
  • Army lieutenant orders his platoon to fire on three Afghans riding a motorcycle who weren't presenting a threat. Two of the men die. The lieutenant is court-martialed, convicted of murder; he exhausts his direct appeals and files a habeas petition. But wait! Three days after filing, the president pardons him. District court: He waived his habeas rights by accepting the pardon, which constituted a legal confession of guilt. Tenth Circuit: No. Accepting a pardon may imply a public perception of guilt, but we won't presume accepting a pardon is a guilty confession. He continues to suffer collateral consequences from the conviction, so his habeas petition must be considered.
  • A Georgia inmate believes Islam prohibits him from trimming his beard, but prison policy prohibits beards longer than one-half inch. District court: Untrimmed beards present too much of a security concern—how about a three-inch beard? Eleventh Circuit: The inmate never requested a three-inch beard—he asked for an untrimmed one. But untrimmed beards are dangerous in prisons, so he's out of luck. Dissent: Let the man grow his beard.
  • Poor David Sosa. A man of the same name has an outstanding warrant from Texas connected to a 1992 crack-cocaine conviction. Our David Sosa, though, is an airplane engineer in Martin County, Fla. who has been arrested not once but twice on the other man's warrant, despite a 40-pound weight difference, an absence of tattoos, and different birthdays. Did it violate the Fourteenth Amendment for deputies to persist in detaining him after they knew he might be the wrong David Sosa? Eleventh Circuit (over a dissent): Quite possibly. His case can proceed.
  • And in en banc news, the Tenth Circuit will not reconsider its earlier ruling that a criminal defendant can make an intelligent decision to accept a plea bargain even if he has been "grossly misinformed" about the risks of going to trial. "That puzzles me," says Judge Hartz, dissenting.

Today, a federal district judge in Chicago rejected the City of Zion, Ill.'s bid to dismiss an IJ lawsuit challenging its rental inspection program. Zion had argued that because it had only threatened—not executed—warrantless, nonconsensual interior home inspections, the objecting tenants did not have standing to sue. With that argument rejected, the tenants' Fourth Amendment case can proceed. Click here for more.

NEXT: Libel in the Society for Creative Anachronism

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  1. Iowa jail has a policy of not allowing visits with minor family members, meaning that this pretrial detainee was denied the right to see his two kids for nearly a year. A constitutional violation? Eighth Circuit: Yes, but not a clearly established one. Qualified immunity . . . this time.

    This is an example of an appropriate use of qualified immunity.

    1. "Our David Sosa, though, is an airplane engineer in Martin County, Fla. who has been arrested not once but twice on the other man's warrant, despite a 40-pound weight difference, an absence of tattoos, and different birthdays."

      Immunity fosters incompetence, and should be ended in an Amendment.

      1. No, it should be ended with well placed 5.56s from a sniper's rifle. The only things these thugs understand is force.

        1. Who should be shot first, in your judgment, you disaffected, bigoted, valueless, right-wing gun nut?

          1. Every enemy of freedom.

            1. Please step right up to the front of the line, sir.

      2. Yup. LinkedIn shows over 1000 people named David Sosa. It's not even a slightly uncommon name and no reasonable person could have believed it's same person.

  2. Lorance then petitioned the U.S. Court of Appeals for the Armed Forces, which denied review. United States v. Lorance, 77 M.J. 136 (C.A.A.F. 2017). Because that court denied review, Lorance was
    precluded from seeking certiorari to the Supreme Court. 10 U.S.C. § 867a (“The Supreme Court may not review by a writ of certiorari under this section any action of the United States Court of Appeals for the Armed Forces in refusing to grant a petition for review.”).

    From the court martial case, that's an interesting quirk of SCOTUS procedure. Not that the Supreme Court hears many military cases anyway, but in theory if the U.S. Court of Appeals for the Armed Forces likes the opinion below it's far more powerful if it denies review than if it grants review and affirms it, because the latter can be overturned by SCOTUS but with the former the lower court becomes unreviewable for purposes of this case only. I'm not sure this is the best idea, but on the other hand I doubt SCOTUS wants to get flooded with a bunch of no hope cert petitions from the armed forces anyway.

    1. This holding assumes that Congress even CAN remove a case or controversy from Supreme Court review.

  3. Thursday open threads not showing up until Friday. Short Circuits running late and showing up on Saturday.

    If feel like civilization is crumbling and the Great Collapse is near.

    1. " If feel like civilization is crumbling and the Great Collapse is near. "

      Not for the glorious, victorious liberal-libertarian mainstream.

      (The second link, if permitted by this authoritarian website, would have been the remastered Getting Better, from the Beatles.)

    2. Anti-pandemic measures have caused supply chain issues everywhere.

    3. "If feel like civilization is crumbling and the Great Collapse is near."

      And people said there'd be no fallout from allowing same-sex marriages to go forward.

  4. I would be curious to hear from someone knowledgeable about why Burdick v. United States doesn't apply to the pardon case. Is it one of those "details matter" things, or has the precedent been overturned?

    1. If you click on the underlined words "Tenth Circuit" you will be taken to the actual opinion, which extensively discusses this precise issue.

  5. In the Eleventh Circuit, a couple of Trump-nominated clingers from the Federalist Society finally found a religion-based claim that could be rejected.

    Advanced by a Muslim, naturally.

    Carry on, clingers. So far as your betters permit, anyway.

    (That performance preceded the berserk period.)

    1. I think you're confused. The First Amendment was not intended to protect anyone but Christians of different denominations, like Quakers and other groups that were unpopular at times. It was never intended to protect Muslims, Rastafarians, Buddhists, Wiccans, or any non-Western religion.

      1. Funny, that's not what it says.

        And I note you carefully omit any mention of Judaism. Maybe because, like Christianity, it is, in its origins, a "non-Western religion."

        1. Right-wingers run hot-and-cold on Jews.

          Sometimes conservatives value Jews (for playing an important role in a make-believe tale, at the conclusion of which role the Jews are to be promptly cast toward eternal damnation and hellfire).

          Sometimes right-wingers aggressively dislike Jews (Soros 'the Antichrist' and 'New York liberals,' for example).

          Sometimes Republicans make common cause with Jews (when Israel engages in right-wing belligerence and Netanyahu nuzzles Trump's nuts, for example).

          Sometimes right-wingers march and chant 'Jews will not replace us, ' 'Christ-killers,' and 'blood and soil.'

          It appears to be a complicated relationship.

        2. That guy’s post is so far out there that although you hope and suspect that it’s sarcasm, you can’t quite be sure.

        3. Judaism is a tough one. The founders were not particularly keen on Judaism, but Judaism existed in America at the time of the founding. That isn't true of the others.

          1. The Founder George Washington was rather keen on protecting Judaism from government interference with religion. Read his letter to the Rabbis of the temple at Newport R.I.

            1. At the same time, they weren't looking for Judaism to supplant Christianity in America.

          2. It is certainly true of Islam.

      2. Are you an attorney?

          1. Liberty, Regent, Ave Maria, or Cooley?

            1. Michigan. Got into better schools with my 177 LSAT, but wanted to save the money.

              1. I have no reason to doubt that. For example, I have been told some autistic incels and antisocial misfits perform well on certain tests.

                Or maybe the Good Lord knew he could count on you to be a mindless warrior for God, and blessed you with a miracle on test-taking day.

                1. Don't overlook the possibility of cheating as an explanation.

      3. The inmate wasn't making a first amendment argument.

        1. He was probably thrown off because "my religion says [...]" sounds a lot like a first amendment argument.

      4. I double-checked Justice Story's [in]famous remarks on the First Amendment:

        "The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government."

        Then later he says

        " Thus, the whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions; and the Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship."

        I've often heard the first passage quoted without mentioning the later one.

      5. I forget where he wrote it, but Jefferson at one point explicitly said that he wanted even Muslims to be protected because if you make exceptions for anyone, then it would be possible to twist the exceptions around later. For the people of the time, that was shockingly extreme.

  6. I'm not sure about a habeas corpus case for someone released from prison, but anyway, at least the court said "accepting" a pardon doesn't mean a confession of guilt.

    Indeed, the fact that we're even having this discussion is messed up. The idea that pardons are reserved only for the guilty (and for innocent people who are willing to make false confessions) is so bizarre only a lawyer could come up with it.

    Anyway, nowadays what happens to a prisoner who refuses to "accept" a pardon. "Very well, sir, sorry to trouble you, we'll keep you in prison." Wouldn't it be more likely that the warden would say "get the heck out of here, be a martyr on your own time, you've been pardoned and that's that."

    1. Maybe there's some jealousy from the legal establishment at the idea that someone outside the courthouse clique (the President) would be able to cast doubt on the infallibility of the system?

      1. Is there a fool somewhere laboring under the impression that the legal system is infallible?

  7. I have some sympathy for David Sosa's problem. During the 1980s I was doing a good bit of international travel in my legal practice. I usually didn't have any trouble clearing Immigration coming home--white, male, late 30s early 40s, lawyer etc.

    And then suddenly I was being detained for as much as two hours before they let me in. Obviously something was showing up on the Immigration official's screen. I filed a FOIA request trying to find out why this was happening. Of course I got nothing back from the Feds. By contrast one of my coworkers who had been a Federal prosecutor beforehand was practically handed birthday cakes and flowers whenever he re-entered the USA.

    Finally a Immigration officer did me a favor--and told me what the problem was. I lived and practiced in Los Angeles. There was another person with a name and birthdate almost identical to mine who lived in Miami, I assume from his residence that the Feds might have thought he had something to do with the drug trade. But--the officer said--the person in question was 5' 9" tall. I am 6' 5" tall. Thereafter when it looked like the old "hold up" was going to happen at immigration again, I simply told the officer to look at his screen and see how tall the fellow was. Problem solved. Easy enough to change weight---harder to change height.

    1. I was involved in a contentious divorce with a prolonged custody fight. Afterwards, my ex-wife moved to Hawaii. To effectuate visitation, I had to put my young daughter on an airplane to Hawaii. When a minor travels on an unaccompanied minor ticket, the airline wants the parent at the origination airport to wait at the gate until the airplane actually leaves the ground, to minimize the risk they're undertaking in accepting responsibility for the minor. So when said parent arrives at the airport, they get a special gate pass that allows them to go to the gate but not to get on a plane. This means going through the TSA security checkpoint. I got "randomly" selected for extra security screening every time.

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