Short Circuit: A Roundup of Recent Federal Court Decisions

Mask mandates, high-capacity magazines, and debauchery.

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

Friends, on Wednesday, December 8, the Supreme Court will hear Carson v. Makin, an IJ case, and consider whether states that offer tuition assistance to families for use at private schools can bar those families from choosing schools that teach religion. Click here to learn more. Or perhaps click here for a podcast where we do our goshdarn level best to persuade skeptics of the virtues of school choice.

• After unsuccessfully seeking an unredacted copy of the 2016 Mueller Report through a FOIA request, the media outlet Buzzfeed sues the Department of Justice. On appeal, Buzzfeed challenges only the district court's decision to uphold the redaction of information about unidentified individuals—*cough* Don Jr. *cough*—implicated in but not charged with campaign finance violations. D.C. Circuit: Buzzfeed can't get most of what it wants, but it can get the detailed discussion of DOJ's charging decisions.
• When the M/V Galani hit the M/V Marina in the Paros-Antiparos Strait, a woman named Curtis with wounds most injurious brought suit in the United States. Facing disaster, the Galani's master claimed forum non conveniens. The First Circuit said no and that's how it would go; so here in the States he defends.
• In which the First Circuit reminds young people that, although they have a First Amendment right to be jerks, there are limits to their right to be jerks in public school.
• Did a company fail to effectively enforce safety rules by not disciplining an employee who obeyed his direct supervisor's order to go into an unsafe trench? (It disciplined the supervisor.) OSHA: Close call, but yes. Fifth Circuit: Affirmed. Dissent: Close call? Closer to a deranged call.
• Parents of children with disabilities challenge Texas's order prohibiting mask mandates. District court: The mask-mandate ban violates the ADA and may not be enforced. Fifth Circuit: The ban's ban may not take effect while we consider it more fully.
• In 1988, three women are abducted, sexually assaulted around Miami Township, Ohio. Detectives rule out a tip about a GM security guard, which came in from a vindictive supervisor and didn't match the evidence of the crimes. A new detective takes over the investigation, replaces the original report eliminating the guard as a suspect with a report identifying the guard as a key suspect, creates a bad photo lineup, and fabricates evidence. The guard is convicted, spends over 20 years in prison before he's exonerated. He sues. Detective: Qualified immunity? Sixth Circuit: The claims can go to trial.
• In serious-blows-to-the-ego news, the Sixth Circuit holds that a Michigan lawyer has failed to allege that he has any real prospect of "seduc[ing or] debauch[ing] any unmarried woman" and thus lacks standing to challenge a Michigan statute forbidding him from so doing.
• After the Oakland Raiders relocated to Las Vegas, Oakland sued the franchise, the NFL, and every other NFL team for violating antitrust law by engaging in a group boycott and price-fixing. Ninth Circuit: Well, there's no group boycott because the Raiders were the only team that refused to do business with you. And you don't have antitrust standing for the price-fixing claim. Concurrence: Antitrust standing?! Their theory is that if the NFL had more lenient rules for league expansion, then there would be more applications for new teams, the NFL would admit more teams, a team would already occupy Las Vegas, and thus the Raiders would not have been able to find a better host city. That's so speculative they don't even have constitutional standing.
• Opinions abound in this ruling from the en banc Ninth Circuit upholding California's ban on "high-capacity" magazines (i.e., those capable of holding more than 10 rounds). Judge VanDyke "respectfully" dissents, noting that the Circuit's Second Amendment decisions together imply the "ridiculous" result that "the right to 'keep and bear arms' means, at most, you might get to possess one janky handgun and 2.2 rounds of ammunition, and only in your home under lock and key."
• Title VII forbids employers from retaliating against employees for opposing employer conduct they reasonably believe violates Title VII. But can their belief still be reasonable if they're just flat-out wrong on the law? Two-thirds of this Tenth Circuit panel says sometimes!
• After some highly technical parsing of Section 204 of the Trade Act of 1974, the U.S. Court of International Trade finds that the imposition of certain tariffs on imported solar modules to be "outside the President's delegated authority." (Learn more about this neat little Article III court, and the latest on the Trump-Biden tariffs, on the most recent Short Circuit podcast.)
• And in en banc news, the Fifth Circuit reverses a panel decision that stayed a district court's injunction of a policy permitting federal officials to prioritize, without explicit authorization from Congress, which illegal immigrants to investigate and deport. The policy is on hold pending appeal.
• And in more en banc news, the Sixth Circuit will reconsider its decision upholding a preliminary injunction of a Tennessee law that bans any abortion when a physician "knows" it's "because of" the fetus's race, sex, or Down syndrome diagnosis and, also, that prohibits any abortion once a fetal heartbeat is detected. (And if that is struck down, at six weeks. And if that is struck down, eight weeks. And if that is struck down, ten weeks. And so on through 24 weeks.)
• And in further en banc news, the Sixth Circuit will not reconsider its decision sending to a jury the question of whether Scott County, Tenn. can be held liable for denying medication to a pretrial detainee who suffered a slew of seizures and drank out of a toilet. Judge Readler, dissenting from denial of review, cautions against "transforming constitutional prohibitions against punishment into a 'freestanding right to be free from jailhouse medical malpractice.'"

Highway robbery! Earlier this year, Nevada Highway Patrol officers seized IJ client Stephen Lara's life savings on the side of the road. He was not ticketed or given a warning—much less arrested or charged with a crime. Click here to watch bodycam footage of the stop and query whether the highway patrol is really in the business of protecting and serving or, say, ripping off law-abiding folks. And then click here to read about Stephen's challenge to the Nevada Highway Patrol's participation in the federal "equitable sharing" program, which lets state agencies evade state law and process forfeitures under federal law.

Comments

[Jerry B.]

“In serious-blows-to-the-ego news, the Sixth Circuit holds that a Michigan lawyer has failed to allege that he has any real prospect of "seduc[ing or] debauch[ing] any unmarried woman" and thus lacks standing to challenge a Michigan statute forbidding him from so doing.”

Is there a point to this suit somewhere?

[Queen Amalthea]

Do you think the state should prohibit "seduc[ing or] debauch[ing] any unmarried woman?"

[Jerry B.]

I’m wondering why this attorney would claim the law is unconstitutional, and try to use himself as an example, by saying he intended to seduce or debauch a woman. Seems like an arrest and prosecution should have occurred first. Perhaps he couldn’t find a woman who would let him seduce and/or debauch her and then call the law on him for violating the statute.

[Queen Amalthea]

Again, I think it's easy as to why one might think it's unconstitutional (along with adultery and fornication laws), the other point is a standing issue.

[Toranth]

He, foolishly, stated that he never intended to do so in the future as well, which was probably the kiss of death to his standing.

[Bored Lawyer]

"the kiss of death"

Is that the first step in seducing or debauching?

[momo]

> Do you think the state should prohibit "seduc[ing or] debauch[ing] any unmarried woman?"

That depends, what do they look like?

[Don Nico]

With this great a holding, who needs a point.

[Queen Amalthea]

"consider whether states that offer tuition assistance to families for use at private schools can bar those families from choosing schools that teach religion"

That's a mischaracterization, it's not about barring the choice of 'schools that teach religion' but instead, as IJ says elsewhere, 'religious schools.'

[mse326]

True but the answer is still almost certainly the same. They can only deny tuition if the scool is to teach for entry into the clergy. Religious affiliation isn't enough

[Queen Amalthea]

It's not even religious affiliation, it's instruction. Government funding of religious instruction is particularly what the Founders wanted separation of church and state for.

[Bob from Ohio]

"Government funding of religious instruction is particularly what the Founders wanted separation of church and state for."

Anti-historical bunk.

There were established state churches at the founding, Mass. for instance.

[Queen Amalthea]

Yes, that was true re: states, but that was also before that pesky 14th Amendment and incorporation. Now states have to play by the feds rules in those areas.

[David Nieporent]

Sure — well, Thomas disagrees — but that hardly resolves the issue, since the "feds rules" on the subject are not exactly unambiguous. It's one thing to say that taxing people in order to fund churches is beyond the pale, but giving vouchers (or the functional equivalent) to individuals who can use those vouchers for secular and sectarian schools alike (that meet secular criteria) at the choice of the individuals is not obviously an establishment of religion.

And of course we're not exactly writing on a blank slate; the Supreme Court has all but said that Maine's exclusion is illegal.

[mse326]

But there is nothing that really distinguishes what would be taught by a school who wants the students to follow the religion and a purely secular school that may teach it for the purpose of informing what people believe.

That is why the Supreme Court's only acceptance of discrimination is when the funds would be used to teach for enterance into the clergy.

[Krychek_2]

I went to a religious school and I have mixed feelings about it. On the one hand, I really did get a quality education on things like English grammar and high school algebra. On the other hand, religion permeated everything. I remember, for example, taking a business course in which the "nothing before something" rule for filing was discussed. The teacher spent thirty seconds explaining the rule and then the entire rest of the class talking about how you have to be a nothing before God can turn you into a something. That sort of thing.

At the end of the day, I don't think tax dollars should be spent for religious indoctrination, especially if it's coming out of the budget of an already underfunded public school.

[MatthewSlyfield]

Over the last several decades, the funding for public schools has increased drastically, with almost no change in student performance. The notion that public schools are underfunded is nonsense.

[tkamenick]

The founders (most of them) did not want separation of church and state. Most of them were quite happy with official state churches. What they didn't want was (a) government - even government with an official church - to prevent people from practicing a different religion; and (b) the federal government to impose one religion on the disparate states.

This really isn't hard.

[abhudd47]

"Judge Readler, dissenting from denial of review, cautions against "transforming constitutional prohibitions against punishment into a 'freestanding right to be free from jailhouse medical malpractice.'""

First of all, let me just say that I am not at all opposed to the precedent this judge seems to fear setting. Placing somebody into a jail/prison where they are subjected to the pain and suffering of medical malpractice, negligence and/or medical neglect is a clear human rights violation and ABSOLUTELY qualifies as cruel and unusual punishment (it IS punishment because they are being placed in that situation by the courts in response to their crime).

But this is a civil case asking whether they are civilly liable for the medical malpractice that their employees imposed upon a person. Not sure that the constitutional issue should really even enter into it.

[mse326]

The constitution comes up because states have sovereign immunity so can't be sued unless they have waived it or Congress did. Congress has for constitutional violations in section 1983, but there likely is no waiver for simple tort liability

[abhudd47]

Thanks for the explanation. 🙂 Don't ya' just love how the Government does everything it can to avoid being held responsible for its actions and the actions of its proxies...?

[MatthewSlyfield]

And then turns around and protects the proxies from any direct liability.

[Kristian H.]

"transforming constitutional prohibitions against punishment into a 'freestanding right to be free from jailhouse medical malpractice.'"

Umm, so we don't have a freestanding right to be free from medical malpractice? It seems that giving the right to malpractice to doctors (regardless of setting, like jail) is a damn odd legal priniciple.

[LawTalkingGuy]

It flows from this overall bizarre “belief” that courts should defer to law enforcement generally and prison administrators in particular and give them free reign to do what they want. It’s bizarre because judges confront criminal justice and regular tort issues like malpractice A LOT. Trial courts personally interact with people in custody all the time, and have a keen interest in having those facilities run well so that the parties can appear before them in a timely and healthy manner. If there’s anything they are suited for, it’s these issues.

But it gets even more ridiculous when we remember that federal judges, including Readler, have no problem opining on and getting involved with policy stuff they rarely confront and don’t actually understand. For instance we have federal judges issuing nationwide injunctions partly on the basis of questioning vaccine effectiveness! Or look at how judges confront technology or environmental issues or issues of administering complicated government programs.

But I think there is a different issue here than simple arbitrary line drawing or hypocrisy. Judges like Readler actually don’t think they’re incapable of dealing with prison administration or law enforcement, that’s just a disingenuous claim so they can pretend they don’t have a real choice. But they are making a choice. A choice not to get involved because they don’t value the humanity or health of people in custody, and actually think that anything bad that happens to them is both expected and deserved. When prison staff behave deliberately brutally or engage in the routine neglect of their charges, they’re actually doing the their job these judges want them to do.

[abhudd47]

"A choice not to get involved because they don’t value the humanity or health of people in custody, and actually think that anything bad that happens to them is both expected and deserved. When prison staff behave deliberately brutally or engage in the routine neglect of their charges, they’re actually doing the their job these judges want them to do."

Sadly too true. This same attitude extends beyond the prison system to anybody who finds themselves on "The other side" of the "thin blue line." It is this attitude that leads to most abuse of police power, whether that's excessive force, warrantless searches, manipulating evidence/witnesses, withholding Brady evidence, doing unnecessary damage to personal property during searches, "seizing" property they have no lawful right to, harassment, or any other abuse. And Probation/Parole officers have even less accountability...

[Queen Amalthea]

"you might get to possess one janky handgun and 2.2 rounds of ammunition, and only in your home under lock and key."

A talk radio Circuit court judge.

[Queen Amalthea]

Michigan school shooter's parents to be charged with involuntary manslaughter. Far less than ideal people and parents imo that seem to me to be deserving of some legal consequences, but involuntary manslaughter seems like a stretch.

[Currentsitguy]

They seem to have gone to ground.

[MatthewSlyfield]

Prior to the shooting he was caught looking up ammunition on his cell phone and his mom's response as captured in text messages to him was something like: I'm not mad at you. You have to try not to get caught.

[momo]

Unwise and bad parenting, but I fail to see the crime.

He looked up a product that was legal to buy.

[MatthewSlyfield]

They encouraged him and are being treated as accessories to his shooting spree. Maybe it a stretch, but I don't think it's all that much of a stretch.

[MatthewSlyfield]

It may be a product that's legal to buy but he shouldn't have been looking it up during class time.

It would still merit discipline if he was shopping for video games or action figures on his phone during class time.

The point is he broke the rules, got punished and his mom's reaction was: don't get caught next time.

His parents were encouraging him to break school rules under conditions that could foreseeably lead to violence.

I don't think its that much of a stretch to treat the parents as accessories to the crime in this case.

[David Nieporent]

His parents were encouraging him to break school rules under conditions that could foreseeably lead to violence.

The word foreseeably is doing so much work in that sentence that you may be violating labor laws.

Why is it foreseeable from the mere fact that someone googled ammunition (it's not even clear from news reports that he was googling for purchasing ammunition, as opposed to just googling about it) that violence was likely? If someone was googling about gasoline, would that make it reasonably foreseeable that he was planning to gas up his car and then deliberately run over people?

I'm not saying that there are no google searches that would've been red flags — "e.g., how to sneak a gun past a metal detector" — but simply googling for ammunition?

Even setting aside that it's not clear that he actually broke a school rule — as opposed to merely doing something that concerned someone — I hardly think it an unusual response to say to someone who got a reprimand for violating a silly rule, "Look; just don't get caught next time." I'd probably say the same thing to my kids in that general type of situation.

[FourteenFour]

and likely was doing so to impress his school friends with the fact he had received a gun as gift.

[LawTalkingGuy]

Also weird because Michigan’s involuntary manslaughter is apparently a common law crime?

[mse326]

I think there is probably two bits of information that were important in this decision (don't know what the law sustains though so can't opine)

1. His mom just about a half hour after he did it texted him begging him not to do it, implying she knew something was in his mind
2. Despite the knowledge they didn't secure the gun (which from what I've read is not generally illegal in Michigan but may be used as evidence of disregard for safety if the facts warrant it).

[momo]

Look there is too much political opportunity for a prosecutor NOT to make hay out of this tragedy. This can really boost his career, you know.

The habit of prosecutors going after the relatives of a dead criminals, just because they can't let the media spotlight pass them by is (or damn well should be) a per se ethics violation. But, ... Bar Associations don't discipline DAs so ...

[LawTalkingGuy]

Van Dyke should take a lesson from his just as conservative but much more well-adjusted colleague on the Sixth Circuit, Raymond Kethledge:

“There are good reasons not to call an opponent’s argument “ridiculous,” which is what State Farm calls Barbara Bennett’s principal argument here. The reasons include civility; the near-certainty that overstatement will only push the reader away (especially when, as here, the hyperbole begins on page one of the brief); and that, even where the record supports an extreme modifier, the better practice is usually to lay out the facts and let the court reach its own conclusions. But here the biggest reason is more simple: the argument that State Farm derides as ridiculous is instead correct.” Bennett v. State Farm, 731 F.3d 584 (6th Cir. 2013)(citation and quotations omitted).

[Toranth]

Are you suggesting the 9th's arguments about the 2nd Amendment are, in entirety, correct?

Even in the places they are facially wrong about historical events?

[Noscitur a sociis]

1. Judge Kethledge was talking about litigants, not judges
2. Some positions are ridiculous, and both the Ninth Circuit's bad-faith hoplophobia and Judge Kethledge's conclusion that a pedestrian who has been run over by a car is occupying that vehicle are good examples of them.

[LawTalkingGuy]

1. So? He’s talking about civility and persuasive writing. I didn’t realize judges should disregard those in crafting opinions, particularly concurrences/dissents whose only function is to persuade the reader.

2. Sure, but that’s not the point, see point 1, for the point. Also I don’t think you understood the State Farm opinion (despite it only being 3 pages). Kethledge didn’t conclude that a pedestrian on a car is occupying the car as a matter of law for all time in future cases. He concluded that State Farm wrote the contract that way and then held them to their agreement.

“ Here, as a matter of ordinary English usage, one might be skeptical that Bennett was an “occupant” of the Fusion during the time she was on its hood. Occupants are normally inside vehicles, not on them. But the parties to a contract can define its terms as they wish; and State Farm has done so here. Its policy for the Fusion defines “occupying” as “in, on, entering or alighting from.” And the parties have stipulated that Bennett was on the Fusion—specifically, on its hood—and that she “suffered further bodily injuries” while she was there. Per the policy's terms, therefore, Bennett was an “occupant” of the vehicle and thus entitled to coverage for those additional injuries.”

This is not a ridiculous result. It’s a ridiculous definition of “occupant” State Farm used. But it’s the one they chose so they can’t get out of it because you or they think it’s ridiculous.

[tkamenick]

To some extent yes, but if judges used a little more common sense when interpreting contracts rather than deciding a "fair" result and then reading the contract to require that fair result, it wouldn't necessary for contract-writers to have to add yet another piece of language onto their contracts so they can differentiate "occupying" meaning "on" in the sense of somebody is riding on top of the car intending to be transported on it and "on" in the sense of somebody accidentally LANDED on top of the thing.

I mean seriously, 90% of learning contract law in law school is leaning all the common-law exceptions to "just do what the contract says"

[Rev. Arthur L. Kirkland]

Judge Jones (the trench case) sounds like an anti-government crank.

And, in claiming 'only four recorded violations in five years (6,000 or 7,000 excavations' establishes a 'great record' with respect to safety, an impractical and naive judge. If she believes every violation is detected and cited, I have some properties with great views (in heaven) she seems a good candidate to purchase.

[kotodama]

Oh, she's a real piece of work. If you survey her background, you'll unearth a lot more appalling nuggets like this one.

Also, how on earth did nobody manage to work the word "trenchant" into either the opinions or the case summary here?

[David Nieporent]

If she believes every violation is detected and cited,

Irrelevant. Violations that aren't detected by definition are not blemishes on a record.

[Shamie Ervin iv]

Oh, such delightful poetry!

[kotodama]

I have a strong hunch the defendant in that case is the Senior Managing Director at Blackstone whose bio is linked below. If so, no doubt he has pockets "deep" enough to satisfy a potential judgment.

https://www.blackstone.com/people/nicholas-galakatos-2/

[MaverickNH]

"Judge VanDyke "respectfully" dissents, noting that the Circuit's Second Amendment decisions together imply the "ridiculous" result that "the right to 'keep and bear arms' means, at most, you might get to possess one janky handgun and 2.2 rounds of ammunition, and only in your home under lock and key."

Heads-up - I’ve put a tricked-out Jankly 2.2 pistol up on GunBroker, if you’re a CA resident and in the market. Low-cap, integral trigger-lock, quick-disassemble/long-assemble features! (No sights and jams frequently)

[kotodama]

Could be the perfect stocking-stuffer for that special someone in your life!

Also, you better hurry up and trademark Jankly.

[Cal Cetín]

"the Fifth Circuit reverses a panel decision that stayed a district court's injunction of a policy permitting federal officials to prioritize, without explicit authorization from Congress, which illegal immigrants to investigate and deport. The policy is on hold pending appeal"

Wait, what?

OK, let's work backwards.

Executive immigration order re enforcement priorities - did this illegally defy Congress?

District court issues injunction against order. Prioritization policy can't be enforced.

Appeals panel stays injunction, so the prioritization policy is back in force for the moment, but the courts aren't finished with the case.

Did I get that right?

[Cal Cetín]

No, I forgot that the full court put the district court decision back in force, so the executive order again can't be enforced.

Can anyone understand that sentence without carefully diagramming it?

[Ben of Houston]

I don't know. These reviews often get into double and triple negatives, but this one is particularly eggregious