Short Circuit: A Roundup of Recent Federal Court Decisions

Private detention facilities, controversial speakers, and threatening troop movements.

|

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

At a Virginia gubernatorial debate last month, both candidates demonstrated an appalling lack of understanding of what qualified immunity is and what it does. Over at The Washington Post, IJers Patrick Jaicomo and Chad Reese set the record straight.

  • On July 21, 1780, Alexander Hamilton wrote a letter to the Marquis de Lafayette warning of threatening British troop movements. Hundreds of years later, the letter was named as a defendant in a civil forfeiture action filed by the feds. First Circuit: The letter's former owner (who inherited it from his grandfather) could not contest the merits of the civil forfeiture action because—under Massachusetts law—the letter is a public record that can only be owned by the state gov't. The district court therefore properly awarded ownership of the letter to the Commonwealth.
  • In the middle of the night, Orono, Maine police knock on the doors and windows of a college student who is suspected of burglarizing the apartment of his ex-girlfriend, whom he'd been arrested for harassing months earlier. (And indeed the knock-and-talk does yield damning evidence of his guilt, though charges are dropped when the ex declines to participate.) First Circuit (over a dissent): The officers violated clearly established law by entering the curtilage of the student's residence without a warrant or exigent circumstances. No qualified immunity.
  • Can a quartet of high-tax states sue to challenge the constitutionality of Congress's 2017 decision to cap the state and local tax ("SALT") deduction? Well the Second Circuit says the courthouse doors are wide open to New York, Connecticut, New Jersey, and Maryland, which have standing to sue. And so do they win? No, says the Second Circuit, the Constitution does not mandate the SALT deduction and capping it was not coercive.
  • Allegation: New York City fire marshal investigates the cause of a fire that destroyed a five-story brownstone where a movie was being filmed. After he concludes that the movie crew caused the fire, his supervisors demand he file a false report blaming a faulty boiler system. He demurs and files a complaint, after which he is reassigned, reducing his responsibilities and overtime opportunities. He sues, alleging First Amendment retaliation. Second Circuit: And his case should not have been dismissed.
  • Allegation: Man rapes his cousin-in-law, uses his connections in law enforcement—he's an assistant warden at a Louisiana prison—to avoid investigation, prosecution. Can the victim sue the DA who declined to prosecute? In February, the Fifth Circuit said no. But then three retired federal judges filed an amicus brief urging the court to reconsider. Fifth Circuit (this week, now with a dissental): The victim doesn't have standing to sue, and the retired judges know it. But that said—and despite the vociferous objections of the defendant—there's no problem with the judges filing the brief.
  • Western Michigan University requires student-athletes to be vaccinated against COVID-19, but considers individual requests for medical or religious exemptions on a discretionary basis. Sixteen student-athletes apply for religious exemptions that are either ignored or denied. They sue, alleging a Free Exercise violation. The district court preliminarily enjoins enforcement of the policy, and the school seeks a stay. Sixth Circuit: Stay denied. Because the rule is not generally applicable—it allows discretionary exemptions—it is subject to strict scrutiny, which it will probably fail.
  • At around age 20 (and still today around age 30), man disavows testimony he gave at age 17 accusing his father of sexual abuse. District court: A reasonable juror might find the recantation less reliable than the accusation because he could have recanted earlier and because his father's ex-wife helped the recantation process along, arguably showing more initiative than he did. Seventh Circuit: Fair enough. Life without parole it remains.
  • Dirty Chicago cop shakes down drug dealers for guns, drugs, and cash. After the FBI catches wind of this, they plant money in places they think he might rob. He does, and is charged, among other things, with stealing money belonging to the United States. Cop: But I didn't know it belonged to the United States when I stole it! Seventh Circuit: Knowledge of the money's owner is not an element of the crime.
  • When conservative student groups invited Ben Shapiro to campus, the University of Minnesota (citing security concerns arising from likely protests) booked the event in a small and out-of-the way location. Eighth Circuit: The student groups' First Amendment claims fail on esoteric grounds of standing and mootness. Dissent: The university had previously hosted controversial speakers in the middle of campus. But when the groups invited Shapiro to speak, the university president directed that, "I do not want this in the middle of campus." That should have been enough for this case to go to trial.
  • California Assembly Bill 5 significantly expanded the number of workers who must be classified as employees, rather than independent contractors. Authors, journalists, and photographers—who usually work as independent contractors—sue, alleging that the law burdens their speech. Ninth Circuit: Nah, it just regulates the economic activity of speakers.
  • Washington state couple lets their son borrow their car in 2016 for a trip to Florida. Yikes! He's pulled over with marijuana in Navajo County, Arizona. County attorney: We may not have charged him—much less his parents—with a crime, but we're keeping the car because the couple filled out a form incorrectly. (They did not sign a filing "under penalty of perjury.") Ninth Circuit: The couple's constitutional challenge to the state's "labyrinthine" forfeiture process should not have been dismissed on procedural grounds, and, moreover, the couple stated a viable state-law due process claim. (This is an IJ case. The county returned the car shortly after the suit was filed.)
  • San Francisco children's store makes claim under insurance policy for losses caused by "Stay at Home" orders. The policy covers "direct physical loss or damage to property" and also excludes "loss or damage caused by or resulting from any virus." And, according to the Ninth Circuit, these words mean the kids are not all right. No coverage under the policy. (We discussed a similar recent decision from the Sixth Circuit on a recent podcast.)
  • All of the immigration detention facilities that the feds use in California are privately run, and, in 2019, the state passed a law requiring them to close. As it happens, the law allows some private detention facilities to remain open permanently—the ones that the state uses. (Other state-used facilities must be phased out by 2028.) Feds: Umm, can they do that? Ninth Circuit (over a dissent): Probably not, so here's a preliminary injunction.

Do you want to litigate the kind of cases that made you go to law school in the first place? Good news, IJ is hiring attorneys in Virginia, Arizona, and Texas! We are on the lookout for energetic and entrepreneurial attorneys with 3-8 years of litigation experience to work on cutting-edge constitutional cases, stop government abuses, and champion individual rights. Attorneys at IJ bring creative, intellectually challenging cases in courts around the country. Our attorneys are active outside the courtroom as well, doing media writing and appearances, public speaking, grassroots activism and direct advocacy to policymakers and legislators. Visit the Careers section of our website, www.ij.org/jobs, to learn more and apply.

NEXT: George Will on the Gordon Klein Lawsuit Against UCLA

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. “loss or damage caused by or resulting from any virus.”

    The losses were from government edicts, not from the Communist Chinses Virus.
    Or is the court ruling that politicians are a virus?

    1. The court is ruling that in addition to being scientifically illiterate — once again, a virus has neither ideology nor nationality — you don’t understand causation.

      1. It makes sense to idiots that those dirty, nasty Chinese Communists carefully planned to attack the United States with a bioweapon, but releasing it… in China.

  2. “When conservative student groups invited Ben Shapiro to campus, the University of Minnesota (citing security concerns arising from likely protests) booked the event in a small and out-of-the way location. Eighth Circuit: The student groups’ First Amendment claims fail on esoteric grounds of standing and mootness. Dissent: The university had previously hosted controversial speakers in the middle of campus. But when the groups invited Shapiro to speak, the university president directed that, “I do not want this in the middle of campus.” That should have been enough for this case to go to trial.”

    What is the First Amerndment right that is at issue? It sounds like the student group WANTED nice, visible protests. Is that something they’re entitled to?

    1. They’re entitled to not be discriminated by the University of Minnesota against based on the content of their speech.

      Is this concept really new to you, or is the urge to bloviate tendentiously so overwhelming that you cannot resist it?

      1. “against” should of course be after “discriminated”.

        Reason’s comment software is as trashy as your thought patterns.

      2. “They’re entitled to not be discriminated by the University of Minnesota against based on the content of their speech.”

        If they had been, you’d have a point. Besides that one on your head, that is.

  3. Now for some unconventional facts to consider….

    % of breakthrough COVID cases in Massachusetts for the week of 9-25 to 10-2: 3,741. (Fully vaccinated individuals)
    Total number of COVID cases in Massachusetts for the week of 9-25 to 10-2: 10,773.
    % of COVID cases in fully vaccinated individuals: 34%

    Number of breakthrough COVID deaths in Massachusetts for the week of 9-25 to 10-2 : 46
    Total number of COVID deaths in Massachusetts for the week of 9-25 to 10-2: 105.
    % of COVID DEATHS in fully vaccinated individuals: 44%

    Vaccination rate as of October 2nd in MA: 68%…

    Source:
    https://www.mass.gov/doc/weekly-report-covid-19-cases-in-vaccinated-individuals-october-5-2021/download

    Source: New York Times.

    Makes you think, I’d hope….

    1. “The 32% unvaxxed are responsible for all the deaths” is what the usual suspects here will think, or at least assert. “If they just got regular jabs like more enlightened folks we could all get back to normal.”

      1. You’d love to get to normal, wouldn’t you? Instead of lagging, as usual.

    2. From the document you cite:

      Hospitalizations in the fully vaccinated: 0.03%

      Deaths from the fully vaccinated: 0.006%

      Yep, makes me think, but probably not what you were hoping I would think.

      1. Interesting that the case fatality rate is not much better in vaccinated people. The odds of dying are down because you are less likely to get sick. Once you are sick the odds are about the same as before. According to Massachusetts data.

        1. Rates of deaths and severe illness among vaccinated versus unvaccinated people are somewhat distorted because the people most likely to have bad outcomes from COVID-19 are also the most likely to be vaccinated — particularly the elderly, but to a lesser extent those with serious underlying medical conditions.

          I saw a chart that estimated the current vaccines reduce an adult’s risk as much as being 10-12 years younger. In some ways that is quite an improvement, but in other ways it’s a reflection of the vaccines’ limits.

        2. Keep in mind that “case” rates are NOT the rate at which people are being infected. They’re the rate at which they’re testing positive. You don’t end up as a “case” if you don’t get tested.

          And you probably don’t get tested if you’re asymptomatic.

          So you’re only looking at the people who got serious enough cases to bother getting tested, essentially the data has been normalized to look at equally bad cases, regardless of how common they are in different populations.

          1. There are various conditions where people get Covid tests regardless of symptoms or known exposure — being admitted to hospitals, some colleges, some workplaces (especially if the person is not vaccinated) — but, yes, the test positivity rate is so high that we are likely missing a substantial number of infections.

      2. “Yep, makes me think, ”

        Does it? Really?

        Seems like if you’re comparing overall hospitalization numbers, including all of 2020 when no one was vaccinated….
        To the shorter period of time when there were more limited numbers of people who were vaccinated…

        You might have somewhat skewed results.

        Which is why looking at the current weekly rates is more appropriate.

    3. 34% of cases in 68% of the population, and 66% of cases in 32% of the population. That gives an approximate vaccine effectiveness of 75% against infection — after however many months since vaccination, with the prevalence of the delta variant, and presumably before many people get boosters.

      1. The major issue here is that at “just” 75% effectiveness, vaccination cannot eliminate the disease.

        That questions the logic of many of the mandates….

        1. I think getting vaccinated is a good idea, but the mandates are not. But there are several points to make:

          – The correct statement is that vaccination *alone* cannot eradicate the virus. Vaccination plus other preventative measures might be able to.

          – At this point, we would probably need to invent a radically more effective vaccine to prevent SARS-CoV-2 from becoming endemic in humans, like four other coronaviruses are endemic (as the common cold). I don’t think people will tolerate or follow the measures that would be necessary with the current vaccines.

          – Even though it will probably become endemic, slowing the spread and mutation of the virus is helpful in reducing the number of immune escapes and more deadly strains that develop. It’s not prudent to simply stop where we are and try to return to pre-Covid practices.

          – In particular, while this virus might eventually become like the common cold coronaviruses, it isn’t there yet. If it does eventually become like them (which I think is likely but not certain), the main difference now is that adults — and especially the elderly — do not have prior immune exposure, so they are more susceptible to serious disease from the virus. “Natural” acclimation would take decades at best, with significantly elevated death rates all the while.

        2. Like the polio vaccine it may turn out that you need more than two shots to get to an adequate level of long-term effectiveness of the vaccine. People are working on figuring that out right now, as well as on Delta-specific boosters.

          (This assumes of course that one week of data from Massachusetts is generally representative of efficacy, of course.)

        3. “The major issue here is that at “just” 75% effectiveness, vaccination cannot eliminate the disease.”

          NOT getting vaccinated is far more likely to eliminate the disease, I suppose.

      2. Michael, that calculation might have some validity if the vaccinated and unvaccinated were drawn randomly from the same population, but they weren’t. E.g. children under 12 aren’t even eligible, so all 800+ thousand of them count among the unvaccinated.
        This weekly vaccination report provides the counts as of Sept. 28 by age group and confirms that the vaccinated group is heavily skewed toward the older and generally higher risk population.
        (In the range 0-29 they report 2.61 million people, of which 42% are fully vaccinated.
        30-64 the numbers are 3.17M, and 79%, and for 65 and up 1.18M and 87%.)
        However the public case data doesn’t break down by both age and vaccination status so we can’t even improve the answer by comparing vaccinated and non-vaccinated results within age-defined cohorts, never mind considering other means of identifying similarly situated subjects.
        All of which adds up to, if you want reliable and meaningful statistics for the effectiveness of the vaccines your best option is to look to the results from studies performed by people who are trained to perform them.

        1. This is all true, but I think Michael P was just doing a basic calculation to show that even taking AL’s “unconventional data” at face value that breakthrough cases are becoming more common, vaccinated people are still considerably less likely to get Covid or die from it than the unvaccinated.

    4. “% of breakthrough COVID cases in Massachusetts for the week of 9-25 to 10-2: 3,741.”

      3741%! That is a startling number!

  4. I find these summaries entertaining and frequently informative, but the first bulleted entry plays fast and loose with the facts by omission.

    It’s not that it can only be owned by the MA government because its a public record, but because it was specifically archived in the state’s public records (and was thus stolen at some point from them). Really, the fact that it was stolen some 70+ years ago is the key piece of information. The MA government is the proper owner because it is *their property*.

    1. No, it is that it can only be owned by the MA government because it is a public record. That fact is what establishes that it must have been stolen.

      1. Read the actual decision. It’s not just that it was a public record. It’s a public record that was formerly housed in the archives, and by law, documents housed in the archives and dating to before 1870 (iirc) cannot be lawfully transferred to other owners.

        That prior ownership is *key* to the fact that it cannot be privately owned. If it had never been housed in the archives previously, (or presumably had its ownership transferred before the law which made documents of that age incapable of being legally transferred to private owners), then despite being a ‘public record’ it could have been privately owned. It’s that previous ownership that is dispositive.

        1. So this is like the case of those Gold Double Eagles that were repossessed by the federal government when the putative “owners” tried to have them authenticated as real Double Eagle coins.

    2. I think the court was harsh because the case so obviously appeared to involve theft. The claimaint might have had better luck with some evidence that the document was not stolen. There was a case about an Apollo mission artifact in private hands. Even though it was supposed to remain government property, the person who bought it in good faith from the government got to keep it.

      1. That didn’t work in the coin case. The gov’t claimed that Double Eagle coins of that year were never sold, and that left the people with the coins with no way to prove that they’d been lawfully obtained.

  5. I absolutely hate when courts rule “well, because you lose on the merits, you don’t have standing”. That really muddles the whole point of standing in the first place. In a better world, this ruling would be “You used to have possession of this and the government took it away from you, OF COURSE you have standing to be in this lawsuit and arguing why you should get to keep it. But you lose, it belongs to Massachusetts.”

Please to post comments