Short Circuit: A Roundup of Recent Federal Court Decisions

Snow routes, Sharia law, and a win-win for everyone.

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

Does any American actually own their home if all local officials need in order to seize it is to imagine an alternative use for the property that might generate more tax dollars? So asks IJ Attorney Bob Belden on the latest episode of the Eminent Domain Podcast, where the conversation centers on Onondaga County, N.Y. officials' plan to seize family homes to enlarge a "commerce park" that has sat vacant for decades.

• In which the D.C. Circuit channels the energy of your eighth-grade English teacher who knows that, deep down, you're better than this and is sad you won't put in the work to realize your potential. Except the "you" in this analogy is FERC.
• Allegations: There aren't a lot of players in the niche market for bankruptcy advising involving estates with assets in excess of $1 bil, so you can imagine that one such New York-based firm was pretty upset when it learned that a major competitor had been securing consulting gigs through shady pay-to-play dealings. The firm sues, alleging that they would have gotten some of those gigs if their competitor hadn't done a RICO. Second Circuit: Very possibly. Proceed to discovery.
• A Nassau County, N.Y. detective rolls his eyes, displays a distinct lack of interest in evidence presented to him that shows man he is arresting for domestic violence is in fact wrongfully accused. (The man misses his father's funeral while he's sitting in jail.) Jury: The detective is personally on the hook for $35k. Second Circuit: Nope, qualified immunity. The detective may not have had probable cause to arrest, but he had arguable probable cause. That said, the jury's $150k award against the county still stands. Concurrence: We really should have asked New York courts whether municipalities can still be held liable when the employee who caused the injuries in question is immune.
• Under federal law, a noncitizen minor whose parents have legally separated is entitled to derivative citizenship if the custodial parent becomes a naturalized citizen before the minor turns 18. USCIS: But we're not going to recognize your parent's divorce under Sharia law in Jordan because both sides didn't agree to the divorce. Third Circuit: A separation under Jordanian law is still a legal separation, and this guy has been entitled to citizenship since April 1982.
• Fifth Circuit: When the gov't defaults on a contract, it doesn't violate the Constitution. It violates the contract.
• Allegation: Shelby County, Tex. sheriff rehires jail officer who'd been fired for abusing inmates. The officer then sexually abuses several inmates, including the plaintiff, a pretrial detainee. Sheriff: Ah, but there's no allegation the officer was fired for sexually abusing anyone. Fifth Circuit: There's enough here to get past a motion to dismiss. No qualified immunity for the sheriff for negligent rehiring.
• In the future, entire federal courts casebooks will be written about the Texas SB 8 litigation. This chapter? Fifth Circuit: "Certified Questions to State Supreme Courts." Dissent: More like "Delay and Subterfuge on Remand."
• While Norwalk, Ohio man was at work, his wife was beaten to death in her bed. Nevertheless, he's convicted based on a blood-splatter experiment that ties his socket wrench to the murder. Yikes! The evidence tech who ran the experiment had previously been suspended for a "mental imbalance." Her file concluded she would "stretch the truth to satisfy a department" and that her "conclusions regarding evidence may be suspect." (None of which was disclosed.) After spending 22 years in prison, his conviction is overturned. He dies before he can be tried again; his daughters sue. District court: Qualified immunity! Sixth Circuit: No, the claims against the evidence tech can go forward (but not those against the tech's supervisors or the city).
• The Sixth Circuit notes that if you bamboozle FedEx into thinking you're a large vendor so that it gives you a shipping discount, the bamboozlement is still mail fraud even if FedEx had no written policy about giving discounts to vendors.
• Allegations: Deaf man suffers leg injury and goes to hospital, which repeatedly declines to provide a sign-language interpreter, leading to a communication breakdown that culminates in part of the man's leg having to be amputated. (To the one reader who just said to themselves, "hey, that sentence has a fused participle"—yes, yes it does. You passed the secret test, and Justice Scalia's ghost is giving you a paranormal slap on the back right now. Or maybe he's saying that, in this instance, it's better to be "ungrammatical instead of pedantic." Or maybe the sentence should just have been rewritten.) But long story short: The Sixth Circuit says the man timely sued the hospital and his case can proceed.
• In 1957, in Lambert v. California, the Supreme Court overturned the conviction of a Los Angeles woman who failed to register with the authorities as a convicted felon—as was required by local ordinance. That's because due process requires that defendants have some degree of notice that their conduct violates the law. Seventh Circuit: Which is a doctrine that hasn't been of much help to anyone since, not least this appellant, who got dinged $50 for parking on an unmarked, "secondary" snow route after three inches-plus of snowfall.
• Upset that the job of hooking refrigerated cargo containers to electrical supply was going to members of the International Brotherhood of Electrical Workers instead of members of the International Longshore & Warehouse Union, ILWU members shut down Terminal 6 of the Port of Portland for more than a year. The terminal operator sues, alleging an illegal secondary boycott (the Port, not the terminal operator, controlled the job assignments). They win at trial and are awarded $93.5 mil. Ninth Circuit: And we will not be taking an interlocutory appeal of that ruling, because the issues ILWU complains of are factual, not legal.
• In March 2020, Ventura County, Calif. officials ordered gun stores and firing ranges to close for 48 days to fight COVID-19. But the order allowed other places, like bicycle shops, to stay open. A Second Amendment violation? Ninth Circuit: First, the 1905 case Jacobson v. Massachusetts doesn't apply. Second, strict scrutiny does apply and the County fails it. Concurrence: Could have decided this under intermediate scrutiny. Other concurrence (by the judge who authored the majority opinion): My colleagues are awful. They'll probably reverse this en banc, and to "get a jump-start" I've written this draft of what they'll say. "Sort of a win-win for everyone." (Ed.: Click here for a probing look at Jacobson.)
• Butts County, Ga. sheriff orders signs placed in the front yards of all registered sex offenders in the county that read "STOP" and "NO TRICK-OR-TREAT AT THIS ADDRESS." Eleventh Circuit (with pictures): Well that's called compelled government speech, and it's unconstitutional.
• And in en banc news, the Ninth Circuit will not reconsider its opinion that a San Diego vaccine mandate for students 16 years and older that contains a variety of exemptions, but no religious exemptions, is religiously neutral. Dissental: SCOTUS has summarily rejected our approach to COVID restrictions on religious exercise five times. "With this case, our court is gunning for a sixth."
• And in amicus brief news, IJ is asking the Eighth Circuit to reverse dismissal of a 1983 action against Morton County, N.D. officers who purposefully shot a peaceful protester in the face with a lead-filled bean bag as he shielded women and elderly folks in the crowd. Faced with ill-defined criminal charges that required him to travel across the country for hearings, the protester accepted a pretrial-diversion agreement. But the district court said resolving the charges that way now bars him from suing the officers. To learn why that ain't so, click here. For more on the case, click here.

Since mid-November, San Bernardino County, Calif. sheriff's deputies have pulled over armored vehicles owned by Empyreal Logistics three times on flimsy pretexts—and seized cash twice. None of the stops resulted in tickets or arrests, and the sheriff has no reason to suspect anything untoward is going on. Rather, the sheriff is just going after Empyreal because of who its clients are: California-licensed marijuana businesses. This week, Empyreal and IJ filed suit against the sheriff—and also against federal law enforcement officials and agencies, who are prohibited by a congressional appropriations rider from interfering with state-legal marijuana businesses but who are doing exactly that in this case by, among other things, helping the sheriff try to forfeit the unlawfully seized cash via DOJ's equitable sharing program. Click here to learn more.

Comments

[santamonica811]

"...hey, that sentence has a fused participle"—yes, yes it does. You passed the secret test, and Justice Scalia's ghost is giving you a paranormal slap on the back right now. Or maybe he's saying that, in this instance, it's better to be "ungrammatical instead of pedantic."..."

I always thoughts (and was taught) that a fused participle was the same as a split infinitive: That some says it's incorrect to use, while reviews of actual literature show that (a) it's been used for years/decades/centuries, and (b) is therefore perfectly fine to use...especially when using a fused participle results in a more-clear and 'better' sentence than not using it.

[santamonica811]

some says = some say
[the lack of an Edit button on any post re grammar is a real shame] 🙂

[MatthewSlyfield]

What about "I always thoughts"?

[santamonica811]

grrrr....grumble grumble 😉

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I had to google "fused participle" to see the words at issue. They flow fine to me, same as split infinitives and dangling participles. I always enjoy passing the punch line "That is something up with which I shall not put" on to grammar nazis.

[Noscitur a sociis]

Merriam Webster Dictionary of English Usage (via languagelog):

From the middle of the 18th century to the present time, […] grammarians and other commentators have been baffled by the construction. They cannot parse it, they cannot explain it, they cannot decide whether the possessive is correct or not.
...
This construction, both with and without the possessive, has been used in writing for about 300 years. Both forms have been used by standard authors. Both forms have been called incorrect, but neither is. Those observers who have examined real examples have reached the following general conclusions: 1. A personal pronoun before the gerund tends to be a possessive pronoun in writing […] 2. The accusative pronoun is used when it is meant to be emphasized. 3. In speech the possessive pronoun may not predominate, but available evidence is inconclusive.

https://languagelog.ldc.upenn.edu/nll/?p=2637

What would the "correct" version be? *"...that culminates in the having to be amputed of part of the man's leg"?

[bernard11]

"...that culminates in the need to amputate part of the man's leg?"

[Noscitur a sociis]

Well sure, there are plenty of different constructions that would mean more or less the same thing. I'm curious what, according to an assertionist, would be the correct way to use a participle here.

[MatthewSlyfield]

"I'm curious what, according to an assertionist, would be the correct way to use a participle here."

Drop it into the large hadron collider?

[David Nieporent]

"…that culminates in part of the man's leg's having to be amputated"

And yes, that's terrible. My partner and I proofread each other's work, and we always fight about that. He loves inserting those possessives to eliminate the fused participles, and then I promptly go back and remove them, 90% of the time.

[John F. Carr]

I think of "the noun's verbing" as being one of those old fashioned rules like using "whom" as an object form of "who". Smart people with a proper education do it, but none of the idiots on the street do.

[ReaderY]

I think the Empyreal’s suit against the Feds here is not merely meritless, it is completely negated by IJ’s arguments against asset forefeiture. According to IJ’s arguments, the Feds here aren’t seeeking to enforce laws. Their sole goal is to make money. And that’s a completely permissable goal under the statute.

[Noscitur a sociis]

by a congressional appropriations rider from interfering with state-legal marijuana businesses

No, the rider prohibits the expenditure of funds to interfere with legal medical marijuana businesses.

[Nisiiko]

"In March 2020, Ventura County, Calif. officials ordered gun stores and firing ranges to close for 48 days to fight COVID-19. But the order allowed other places, like bicycle shops, to stay open. A Second Amendment violation? Ninth Circuit: First, the 1905 case Jacobson v. Massachusetts doesn't apply. Second, strict scrutiny does apply and the County fails it. Concurrence: Could have decided this under intermediate scrutiny. Other concurrence (by the judge who authored the majority opinion): My colleagues are awful. They'll probably reverse this en banc, and to "get a jump-start" I've written this draft of what they'll say. "Sort of a win-win for everyone." (Ed.: Click here for a probing look at Jacobson.)"

Liberals are just stupid, evil people. Oh yeah, and Fuck Joe Biden.

[Krayt]

"HAL was told to lie... by people who find it easy to lie."

[Armchair Lawyer]

Re: Mandate for vaccinations

So one of the questions for the mandate is, are there exemptions for natural immunity (IE, people who previously had COVID). And is natural immunity as effective as vaccination. Well, the CDC quietly dropped this report.

https://www.cdc.gov/mmwr/volumes/71/wr/mm7104e1.htm

Turns out natural immunity is much MORE effective than the vaccines at preventing infection with the current COVID strains (delta). If you were vaccinated, but not previously infected, you had a 19.8-fold lower chance of being hospitalized with COVID than an unvaccinated person who hadn't previously had COVID.

But if you had a previous COVID diagnosis you had a 55.3-fold lower chance of being hospitalized, even if you weren't vaccinated.

[Nisiiko]

That's what I've been saying all along. The vaccines are worthwhile, but forcing people who have been infected recently (even natural immunity seems to wane after a while) is just power for the sake of power

[David Nieporent]

Well, this hasn't been true "all along," so if you have, you've been wrong for most of that time.

[David Nieporent]

Of course, Delta isn't the current strain, and vaccination + previous infection was still better than just previous infection.

[Michael P]

Previous infection alone is better than vaccination alone, though, which makes it stupid and unscientific for politicians to mandate the second without regard to the first.

[Brett Bellmore]

Not enough to justify the policy, though. The natural immunity had been in the same ballpark as the vaccine even then.

Sometimes natural immunity is better than the vaccine, sometimes it's worse, depends on the disease and the vaccine. But they're pretty much always roughly comparable, because they're both using the same immune system.

Mind, vaccines are basically always superior to diseases in terms of side effects, because if they weren't, they wouldn't be approved. Barring stupidly requiring people in a demographic who are at nearly no risk from the disease to get vaccinated, of course...

[Lasciata]

The example you give is not a fused participle. "Do you mind me fixing your mistake?" is a fused participle because the reader can't know whether you are minding me or minding the fixing of the error. Here there is no confusion about the deaf man's leg.

But to write "(To the one reader who just said to themselves," now that's an error. 🙂

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

The error is the unbalanced open paren.

[Brett Bellmore]

That's not quite right. The ambiguity in that sentence is between minding the mistake being fixed, or minding "me" being the one to fix it. There's no plausible interpretation where you just mind "me", because that leaves "fixing your mistake" floating there with no application.

[Squirrelloid]

"The detective may not have had probable cause to arrest, but he had arguable probable cause."

...the hell is 'arguable probable cause'? Either he had probably cause or he didn't.

[bevis the lumberjack]

Texas had a case very similar to the Ohio case. Michael Morton's wife was beaten to death in bed with a piece of firewood from their house, early in the morning after Morton left for work. Despite there being some evidence of outside involvement (neighbors seeing a strange van in the neighborhood at the time of the murder and the couple's 4 year old son seeing the killer and describing him to police including answering emphatically that the killer was "not daddy") the cops decided the husband did it before any investigating and he was railroaded by the then current DA, a guy named Anderson. Lucky for him there was no death penalty for simple murder in Texas at that time or else.....

A couple of years after the Morton murder the guy who ultimately was proven to have killed Morton's wife killed another woman in the same manner - beat her to death in her bed. But this time he raped her and they could get some DNA and they did. Just had to wait for a match, which occurred around 20 years after the second murder. He was identified.

At the Morton crime scene a bandana was found in a place that was on the murderer's escape route and was near where the strange van had been parked. Morton asked for DNA testing on the bandana. The new DA (a guy named Bradley) fought tooth and nail to deny the tests, but after a few years Morton got approval to do it. Sure enough the bandana had DNA on it that matched both the killer of the second woman and Morton's wife.

After a huge fight, and under intense public pressure, Morton was finally exonerated and released. The right guy was convicted of both murders.

And best of all, both DAs that fucked Morton were punished. Anderson had moved on to a judgeship, which he was forced to resign. He was disbarred and (I think) served like 10 days in jail, At the next DA election, a reformer ran against Bradley and supporters of the reformer went around putting bandanas on Bradley's campaign signs. He suffered a humiliating defeat and last I heard was the DA in like Tongo or somewhere. Very nice and unusual to see people that railroaded an innocent actually pay a price for it.

[David Nieporent]

Anderson is on the very very very short list of DAs who have ever been criminally punished for prosecutorial misconduct. Mike Nifong of Duke lacrosse infamy is another.

[bevis the lumberjack]

I know. And in law and order Texas no less. And in uber law and order Williamson County. It was amazing.

I remember at the time he did a press conference and he seemed completely gobsmacked that the now-deceased sheriff (who he idolized) had mislead him so badly and that Morton truly didn’t do it.

Trivia - that sheriff was the guy who commandeered the airplane and tried to shoot Charles Whitman from it when Whitman was up in the tower shooting people. Whitman almost shot him down and I guess it was Morton’s bad luck he didn’t.

[Commenter_XY]

Holy Cow that was an amazing story!

Did Morton sue the DA's civilly?

[bevis the lumberjack]

I don’t think so. Texas passed a law maybe 20 years ago that granted exonerated people $80k for each year they were in prison. Morton was in for 25 years, maybe a bit more, so he walked away with $2 million tax free. Maybe that money precludes further civil action.

And he got to bask in the glory of watching the bastards that did it to him get slapped around very hard and very publicly.

From what I saw of the guy he was handling it a lot better than I would.

[KenveeB]

I've heard Mr. Morton speak, and it was an incredibly experience. He is far more compassionate and understanding than I think I could ever be in that situation. He said he knew that most prosecutors were not a problem and most situations were more a matter of mistake and confirmation bias than any desire to convict an innocent person. His main wish was simply to make sure that it never happened again. He was the focal point for a huge change in Texas discovery law (called the Michael Morton Act) that requires turning over basically everything the prosecutor ever sees, except for a few privileged things.

[Krayt]

When DNA testing ramped up, the "so many wrongful convictions" crowd expected a huge wave of requests and springings from jail.

Yet very few actually requested it. Why? Because they knew they did it and DNA testing of old evidence would just bolt the door even tighter.

So when a prisoner screams "Yes, test it, yes yes a thousand times yes!" and the DA fights it, well...

[Bill Poser]

I am a fluent native speaker of English with what is generally considered an elite education, with a doctorate in Linguistics, yet I see nothing even slightly wrong with the "fused participle". The prohibition of the "fused participle" appears to have no basis either in the usage of good writers or in considerations of clarity. As best I can tell, it is an arbitrary rule based on a superficial analysis of English grammar. My advice is to ignore it.

[Krayt]

I had to look it up myself, and the examples from web sites were strained to demonstrate confusion.