Short Circuit: A Roundup of Recent Federal Court Decisions

Hexavalent chromium, rebel flags, and the long night at Camp Blood.

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

New on the Short Circuit podcast: IJ attorneys Jeff Rowes and Diana Simpson talk judicial activism on Skid Row and insuring lost business income during the pandemic.

• Just in time for Spooky Season, the Second Circuit reanimates screenwriter Victor Miller's copyright in the horror blockbuster Friday the 13th, holding that Miller was an independent contractor—not an employee—when he wrote The Long Night at Camp Blood, a script that has "since spawned eleven sequels, among other [extremely] derivative products."
• For decades, Indian Health Service pediatrician sexually abuses his patients. Must the IHS turn over a report that details the agency's numerous failures—in the pediatrician's case and others—to the press? IHS: Nope, the report is a "medical quality assurance record" and so is exempt from the Freedom of Information Act. Second Circuit: Turn it over.
• Appellant: 16 years ago, the SEC refused to settle my civil-enforcement case unless I promised never to criticize them for prosecuting me. I agreed way back then, but now I want out. Second Circuit: Dammit, Jim, we're an appeals court, not a time machine!
• Searcy, Ark. man is arrested for murder based on a warrant affidavit that included witness's incriminating testimony, but not his later recantations. Eighth Circuit: No qualified immunity for three police officers. The prosecutor may have advised in drafting the affidavit, and the magistrate may have issued the warrant, but it was the officers who crafted and signed the "misleading" document.
• Allegation: Vancouver, Wash. police chief repeatedly investigates one of his officers to delay her promotion to sergeant. Officer: This was gender discrimination. Chief: Even if there's proof I was motivated by her gender, she still has to identify similarly situated men I've treated differently. Ninth Circuit: The chief is "profoundly mistaken." No QI.
• Douglas Adams' fictional detective Dirk Gently believed in the "fundamental interconnectedness of all things." So he would have loved this lawsuit by the City of Oakland, Calif. against Wells Fargo, alleging that its discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates, which in turn drove down the assessed value of properties, which in turn led to reduced property-tax revenue and increased municipal expenditures. At the very least, he probably would have liked it more than the en banc Ninth Circuit, which takes a less holistic view of proximate causation.
• Environmental group sues Vacaville, Calif. because its drinking water contains hexavalent chromium (that stuff from the 2000 Julia Roberts blockbuster Erin Brockovich). Their theory? When you turn on the tap, that's the city "transporting" "solid waste" that wood-treatment facilities buried in the ground 40–50 years ago. Ninth Circuit: Sounds like a valid cause of action. Dissent: It is not. And besides being wrong, Plaintiff waived this argument by not presenting it below.
• Nevada inmate is brought up on disciplinary charges for smuggling meth into prison in hidden compartments in envelopes. The inmate—who claims to have been framed—requests to inspect the envelopes, which is denied. He's found guilty, delaying his consideration for parole by two years. Ninth Circuit: Which, if true, violated his clearly established rights under the Due Process Clause. Dissent: Well now it's clearly established.
• Colorado man guilty of sexual assault faces two punishment possibilities: 24 years behind bars, or an indeterminate period lasting anywhere from one day to life. The court chose the latter. Man: I've now been imprisoned for over 37 years—give me a new hearing to keep confining me. Tenth Circuit: No. Dissent: This is a commitment, not a sentence, and commitments (whether civil or criminal) require hearings.
• In providing the Pulse nightclub shooter access to jihadist content, did Facebook, Twitter, and YouTube aid and abet international terrorism? Eleventh Circuit: No. It was neither international in scope (the shooter was radicalized and then acted in Florida), nor planned by ISIS (despite claiming credit afterward), so no international terrorism—and thus nothing to aid and abet—under the Anti-Terrorism Act.
• Alpharetta, Ga. is home to the Old Soldiers Day Parade, a gov't funded event honoring "all war veterans … who have defended the right and freedoms enjoyed by everyone in the United States of America." The Sons of Confederate Veterans asks to participate, a request that is granted so long as they do not fly the Confederate battle flag. They sue, alleging a First Amendment violation. Eleventh Circuit: The parade is government speech, and "governments are not obliged … to permit the presence of a rebellious army's battle flag in the pro-veterans parades that they fund and organize."

After a long battle with addiction, Rudy Carey completed rehab 14 years ago, turned his life around, and found his calling as a substance-abuse counselor. But in 2018, state officials told the Fredericksburg, Va. facility where he'd worked for five years that it was illegal for someone with his old criminal record to work as a substance-abuse counselor anywhere in the state. So this week, Rudy teamed up with IJ to challenge the state's ban in federal court. Laws, at a minimum, must be rational. And barring well-qualified counselors like Rudy because of old and irrelevant offenses without regard to their present-day circumstances is anything but. Click here to learn more.

Comments

[Rossami]

re: "Laws, at a minimum, must be rational."

Citation, please? While that should be the standard, the evidence for what the standard is seems quite strongly to the contrary.

[Krayt]

"Handing out economic advantages to cronies is America's pastime." -- From some other idiotic court decision justifying rational basis, as Emperor Palpatine might say, having "UNLIMITED POWER!!!"

[James Pollock]

Emperor Palpatine found having a Republic Senate to be a bit of a bother. He had them swept away. From now on the governors will rule directly.

[Bob from Ohio]

From your Rudy Carey link:

"During a traffic stop, a scuffle ensued and he inadvertently struck the officer. "

I very much doubt the Court found it to be "inadvertently". Making him a innocent victim is misleading at best, or an intentional deception at worst.

So, the question really is, should a person with a violent felony conviction for intentionally assaulting someone be barred from certain professions?

[William_Zanzinger]

Often what happens is something like this: the cop punches a guy in the face several times, then when the guy falls down the cop kicks him in the face. Later the cop claims that the person assaulted the cop’s hands and feet with his face. So the guy gets prosecuted for assaulting a police officer, when in fact he was assaulted by them. Prosecutors, judges, and jurors tend to believe the cop no matter how absurd the claim is. So the guy gets convicted of a crime he didn’t commit, and gullible people who hear about it later assume that the guy must have done something awful because he was convicted of assaulting a police officer.

The potential for disproving such claims is one of the main reasons why police and their unions oppose requiring body cams and dash cams, and why they frequently ‘forget’ to activate their cams or ‘accidentally’ turn them off right before a suspect uses his face to assault a cop in the foot.

[James Pollock]

The problem for the sort of cop who opposes body cams and dash cams is that ordinary citizens can get them, and use them, plus a lot of them have cellular phones that can record video. Nowadays, a cop can't even kill a man in the street in peace without some busybody recording it.

[James Pollock]

The question is, should professional licensing decisions be made by Internet cranks? The answer is no.

[David Nieporent]

So, the question really is, should a person with a violent felony conviction for intentionally assaulting someone be barred from certain professions?

Sure. We shouldn't let them be cops. We also shouldn't let them do it with impunity if they are already cops.

[Noscitur a sociis]

I very much doubt the Court found it to be “inadvertently”.

Indeed, because Virginia assault and battery requires proof of intent or willfulness, the conviction represents an express finding that he did <inot act "inadvertently".

In other words, about the typical level of candor of an IJ press release.

[Kevin Smith]

"So, the question really is, should a person with a violent felony conviction for intentionally assaulting someone be barred from certain professions?"

If the conviction was not recent and does not represent a current pattern of violent behavior, the answer should be no

[James Pollock]

Meh. Take this complaint to the legislature.

[Tom for equal rights]

After a long battle with addiction, Rudy Carey completed rehab 14 years ago, turned his life around, and found his calling as a substance-abuse counselor. But in 2018, state officials told the Fredericksburg, Va. facility where he'd worked for five years that it was illegal for someone with his old criminal record to work as a substance-abuse counselor anywhere in the state. So this week, Rudy teamed up with IJ to challenge the state's ban in federal court. Laws, at a minimum, must be rational. And barring well-qualified counselors like Rudy because of old and irrelevant offenses without regard to their present-day circumstances is anything but. Click here to learn more.

FWIW - a large majority of drug and alcohol counselors are former addicts along with being the better counselors.

kinda stupid to eliminate the best canidates from the pool for the reason that makes them the better counselors

[James Pollock]

"kinda stupid to eliminate the best canidates from the pool for the reason that makes them the better counselors"

True enough, if it was convictions for past drug addiction that got him disqualified. If his conviction history involves other crimes, as Bob claims upthread, then your analysis is incomplete and inaccurate. Both of you decided to include details from your own imaginations to make your arguments, and neither one of you is convincing because of that.

[BillyG]

Both of you decided to include details from your own imaginations to make your arguments, and neither one of you is convincing because of that

What detail(s) did "Tom for equal rights" include from his imagination in his argument?

[James Pollock]

He decided that the fellow was disqualified from working as a drug counselor resulted from having been convicted of drug crimes. You might have picked that up from what I wrote before.

[BillyG]

8th Circuit denied QI for Police Perjury? Hallelujah! About time.

Typo: Pulse Nightclub paragraph is missing a "nor" before "planned"

[SomeGuy 2]

this lawsuit by the City of Oakland, Calif. against Wells Fargo, alleging that its discriminatory lending practices caused higher default rates, which in turn triggered higher foreclosure rates, which in turn drove down the assessed value of properties, which in turn led to reduced property-tax revenue and increased municipal expenditures.

Holy twelve-steps-removed rent-seeking, Batman! Why not sue Mexico? Had they simply won the Mexican-American War, then California would still be a part of Mexico and therefore Wells Fargo would have never had the chance to discriminate in the first place. Come to think of it, the Spanish Crown is probably to blame for allowing Mexico to escape from its grasp in the first place, which made an American takeover all the more likely.

[Gandydancer]

I listened to the Institute for Justice's Short Circuit podcast, and that's a few brain cells that died and I won't get back. Their insurance law expert assures us that people have been killed by asteroids, b/c he doesn't know the difference between asteroids and meteorites. They're not entirely convinced by a ruling that goes on at excessive length to declare that the government shutting down a restaurant isn't covered by insurance against physical damage. And they are really, really opposed to zoning ordinances that prevent you from setting up tent cities in your back yard to house the homeless.

There's no place on the page where you can make suitably derisive comments, though. I guess that would be more disruptive than the sprawl of skid row into suburban neighborhood tent cities.

[James Pollock]

"Their insurance law expert assures us that people have been killed by asteroids, b/c he doesn’t know the difference between asteroids and meteorites."

The number of people killed by either one is 0. An asteroid/meteorite got the dinosaurs, but dinosaurs aren't people.

[ducksalad]

https://astronomy.com/news/2020/05/a-meteorite-killed-a-man-in-iraq-in-1888-historic-records-suggest

[James Pollock]

Obviously, I meant "known to have been killed by" when I said "killed by". Who knows if the Neanderthals were done in by falling rocks? Could be that's why we don't see many around today.

[James Pollock]

"I listened to the Institute for Justice’s Short Circuit podcast, and that’s a few brain cells that died and I won’t get back"

You only started with 3, how many did you lose?

[tkamenick]

IHS FOIA decision is great. I've seen similar arguments from state record custodians - that investigations into wrongdoing at medical facilities are medical QA reviews. Nice to have this to cite to for a knockdown.

Funny thing about the gag order case, the person may have just brought it up because filing a lawsuit challenging the gag order is probably the closest they can get to criticizing the SEC.

Warrant affidavit case I don't really get. Since when do warrant applicants have to provide the available evidence that tends to make their claim less likely to be true? It doesn't seem like contradictory statements from a witness would eliminate the low bar of probable cause.

"alleging that its discriminatory lending practices caused higher default rates" By lending to fewer minorities (and by extension, fewer poor people, fewer people with worse credit), that causes higher default rates? Huh?

[ducksalad]

On the Wells Fargo case, the allegation wasn't that they denied loans to minorities, it was that they "steered" them toward adjustable rate rather than fixed rate mortgages.

Still a long way from being the proximate cause of the city's problems, though.

[James Pollock]

Being A cause should be sufficient if they're accused of intentional bad acts. Proximate cause is a negligence thing.

[jdgalt1]

Terrorists do not "claim credit" for crimes. They admit blame.

[JJJSSS]

Except that admitting blame implies truthfulness, and the situation here is one where they claimed to have done something they didn't do in order to emphasize their power and reach. Also, as far as they're concerned, they did the right thing. Would you say that the various white terrorists who violently overthrew governments in the South during and after Reconstruction "admitted blame" or "claimed credit"?

[James Pollock]

"Terrorists do not 'claim credit' for crimes."

Your side's terrorists are the other side's freedom fighters.

[Bored Lawyer]

"the SEC refused to settle my civil-enforcement case unless I promised never to criticize them for prosecuting me. "

Talk about bureaucratic CYA. This provision should be held void as against public policy. The SEC is a public body, and its conduct should be subject to public scrutiny. The guy is likely a screwball, and his "criticisms" are likely worthless, but he should be free to tell them to whomever he wishes.

[James Pollock]

"Talk about bureaucratic CYA."

Conversely, accepting the settlement implies that there was a reason not to fight for a complete exoneration. If you're willing to accept that you won't be exonerated, you're admitting some quantum of guilt. Once you've admitted that there is at least a quantum of guilt, you shouldn't be arguing your guiltlessness.

[David Bremer]

Conversely, accepting the settlement implies that there was a reason not to fight for a complete exoneration.

No. It often means that it's cheaper to just pay something and move on with your life than spend the money defending the case and taking the risk that the judge/arbitrator/hearing officer rules against you even if you were in the right.

I understand why people would choose to settle than fight a bureaucracy with, at least relative to the accused's position, unlimited funds.

[James Pollock]

"It's cheaper" is a reason. So your counter to "there's a reason why people take this answer" is "nuh-uh! there's no reason" and is flat wrong.

IF you settled, you settled on purpose.

[ReaderY]

In the SEC case, the summary appears to be incorrect. The 2nd Circuit declined to decide the SEC’s argument that the motion was untimely, and decided it solely on the merits.

[Bored Lawyer]

It's actually neither. Rule 60 only allows reopening of a judgment in very narrow circumstances, which the party here did not meet. Second Circuit affirmed on those grounds.

[ReaderY]

No, the appelant claimed the original settlement was an unconstitutional violation of his First Amendment rights. The Court of Appeals held that his First Amendment rights were waivable, and he waived them by making the settlement agreement. That’s a decision on the merits.

[James Pollock]

The time to raise a claim that your Constitutional rights were violated as a defense is as soon as possible after they've been violated, not more than a decade later.

[ReaderY]

On the drug counseler, I sympathize with the counselor. But there is clearly a rational basis for the rule, and disagreement with it or not doesn’t make it irrational. The issue should be addressed to the legislature, not the courts.