Short Circuit: A Roundup of Recent Federal Court Decisions

Spoiled food, thugs with badges, and strip searches in school.

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

New on the Short Circuit podcast: With neither Congress nor the Supreme Court moving the needle on qualified immunity reform, these days all the action is in state legislatures. Special guest Alex Reinert of Cardozo Law joins the show to talk about civil rights enforcement under state law.

• An alleged sensitivity to radio waves can give (some of) these plaintiffs standing to challenge an FCC regulation governing placement of radio antennas, says the D.C. Circuit, which means we have jurisdiction to say their arguments are bad and wrong and lose.
• In January, a district court in Texas issued a nationwide preliminary injunction against Executive Order No. 14043, which directs federal agencies to require their employees to be immunized against COVID-19. The government moved for a stay pending appeal. Fifth Circuit (motions panel): We'll just let the merits panel decide whether they want to act on that. Dissent: We should stay the entire injunction; at an absolute minimum, we should stay it as to people who aren't plaintiffs or members of plaintiff organizations.
• "Fuck the Police," "fucking thugs with badges," "six bitch ass fucking pigs." Indelicate phrasing? Quite possibly. But constitutionally protected speech? Very clearly. So no qualified immunity for the cops who arrested a potty-mouthed Ohio fairgoer, holds the Sixth Circuit. The case goes to trial. [Ed.: We would've hyphenated "bitch ass," but reasonable minds can differ.]
• Kentucky man kidnaps his two-year-old daughter from custodial grandparents. When confronted by police did he fight back with "super-human" strength and charge one of the officers, leading police to shoot and kill him? Or did police brutally beat him before shooting him unnecessarily? Sixth Circuit: Most of the witnesses say the former, but there's one who says the latter, and that's enough to take this to a jury.
• Ben Kramer almost certainly had a more adventurous 1980s than you did. That decade saw him become: a national champion in offshore powerboat racing; a drug kingpin who imported some 500k pounds of marijuana via barges, freighters, and container ships; a murderer of his former idol (the millionaire inventor of the Cigarette speedboat and pal of GHW Bush); and an inmate serving a life sentence made famous by his failed helicopter-escape attempt. (If you had a wilder decade, pray tell.) As part of his convictions, the courts ordered him to forfeit $110 mil and then work to satisfy the judgments. Kramer: You took too much, give it back. Seventh Circuit: No.
• Sufficiency-of-the-evidence challenges to a criminal conviction are notoriously hard to win. But not impossible, as shown by a California man who persuaded a unanimous Ninth Circuit panel to vacate his convictions for drug-dealing-related crimes. The evidence certainly showed that the man was addicted to methamphetamine, the panel concludes, but not that he had anything to do with selling it.
• SCOTUS-watchers of 2020 may recall United States v. Sineneng-Smith—where the Supreme Court (sua sponte) admonished the Ninth Circuit for sua sponte holding overbroad the federal statute that makes it a crime to encourage aliens to stay in the U.S. illegally for purposes of financial gain. Ninth Circuit (2022): Now that we have a case where the issue is fairly presented, we again hold that the statute is overbroad.
• Lawsuit alleges that the Department of Education unlawfully delayed making decisions on student loans during Betsy DeVos's tenure as Secretary of Education. Can the plaintiffs compel DeVos to sit for a deposition? Ninth Circuit: The plaintiffs have shown that the department acted in bad faith, but they also needed to show that they can't get the information they want any other way. So no deposition. Dissent: No reason not to require a former cabinet official to testify. It's not like she's busy.
• California gov't officials challenge law that prohibits public employers from deterring or discouraging public employees from becoming or remaining members of an employee organization. A First Amendment violation? Ninth Circuit: No need to decide that, because the officials don't have standing. The restriction doesn't apply to anyone in their individual capacity; it restricts speech only to the extent it is attributable to the government employer.
• The city of Boulder, Colo., as well as the counties of Boulder and San Miguel, sue energy companies for damages caused by climate change. The energy companies would sure love to have the case heard in federal court but, alas, the Tenth Circuit holds that none of the six arguments they advance are enough to support removal.
• Oklahoma inmate sues prison for violating the Eighth Amendment by allegedly providing inadequate nutrition (telling the inmate they did "not have the budget to fix" the spoiled food, cockroach infestations, and rationed portions) and unhygienic facilities (11 showers for 132 inmates, one toilet for 32 inmates). The district court dismisses the case for failing to allege constitutional violations. Tenth Circuit (2019): Undismissed. District court: Okay, but now he loses for failing to exhaust. Tenth Circuit (2022): Once again, the man's case can continue.
• In its 2020 decision Tanzin v. Tanvir, the Supreme Court unanimously held that the Religious Freedom Restoration Act (RFRA) allows individuals to sue federal officials who substantially burden religious exercise. Notably, the Court rejected the gov't's request for a policy-based exception to liability under RFRA, explaining that such policymaking would invade the role of Congress. Tenth Circuit: Yeah, but the official can still invoke qualified immunity—a judicially created, policy-based exception to liability.
• Georgia is a stand-your-ground state in a right-to-bear-arms country. So, when your wife spots a prowler outside your home at midnight, it's well within your rights to take a pistol and investigate. But if the prowler turns out to be a police officer crouching in the darkness, who then shoots you dead in your driveway without ever announcing himself, he's going to get qualified immunity. At least in the Eleventh Circuit.
• Allegation: Suspecting a Lamar County, Ala. student has marijuana—quelle horreur—two female school staffers strip search her, twice, while she's on her period, once in front of an open window to a school hallway. Eleventh Circuit: That's going to a jury. If true, no qualified immunity.

If you want to teach piano lessons in your living room in Jacksonville, Florida, there are 19 steps—like obtaining a conditional use permit—the city requires you to take first. Plus, it'll cost you over $1,500. In the 20 large and medium-sized cities that are the focus of a new IJ study, Barriers to Business: How Cities Can Pave a Cheaper, Faster, and Simpler Path to Entrepreneurship, you'll have to pay an average of 13 different fees for permits and licenses totaling more than $5,300 if you want to open a restaurant. Around the country, small businesses must contend with complex bureaucratic approval processes, high fees, and unnecessary delays that do nothing to protect public health and safety. But friends, there's a better way, and the study makes lots of city-specific recommendations for reform that local leaders can and should adopt right away.

Comments

[KenveeB]

""Fuck the Police," "fucking thugs with badges," "six bitch ass fucking pigs." Indelicate phrasing? . .. [Ed.: We would've hyphenated "bitch ass," but reasonable minds can differ.]"

Indeed, I would argue that hyphenation is necessary in this instance. It's the only way to tell if these are "bitch-ass fucking pigs" or "bitch ass-fucking pigs." There's an important distinction.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

There are strap-ons for bitch ass-fucking pigs now?!?

Man I gotta get outa the house more often, keep up with these cultural trends!

[Bored Lawyer]

I assume they meant the former.

And under the rule that compound adjectives need a hyphen, it should definitely be hyphenated. There is no debating this issue.

[Michael P]

Almost relevant counterpoint: https://xkcd.com/37/

[MatthewSlyfield]

Does the ass-car go?

[Shack]

"a national champion in offshore powerboat racing; a drug kingpin who imported some 500k pounds of marijuana via barges, freighters, and container ships"

Something very funny about fact that he used various boats to smuggle drugs but never speedboats.

[BillyG]

500k pounds is A LOT. Speedboats don't pay for low profit high volume/weight product. You need a bulk mover for that. Now, if we were talking Cocaine & Heroine? Speedboats would be an option.

[loki13]

"Georgia is a stand-your-ground state in a right-to-bear-arms country. So, when your wife spots a prowler outside your home at midnight, it's well within your rights to take a pistol and investigate. But if the prowler turns out to be a police officer crouching in the darkness, who then shoots you dead in your driveway without ever announcing himself, he's going to get qualified immunity."

....and that's all you need to know, really. You shoot the cop dead, you get the chair.

The cop shoots you? Too bad.

[Noscitur a sociis]

If you reasonably believed (or more precisely, if there was a reasonable possibility that your reasonably believed) that the use of force was necessary for one of the statutorily listed purposes, then you would not be guilty of anything for shooting the police officer.

If your point is that a jury wouldn't accept your legally valid defense if you were charged with killing a police officer, the last few months have provided us with jury verdicts strongly suggesting otherwise.

[LawTalkingGuy]

Do you have an example of an officer being killed where the defendant raised a self defense theory and was acquitted?

[Absaroka]

Here is one (acquitted of the shooting, convicted of felon-in-possession).

[Absaroka]

Here is another.

[LawTalkingGuy]

Interesting. Thank you. Although I’d be curious about what the sentencing of Andrew “A.J.” Coffee IV turns out to be. The state still wants the full 30 (obviously a sentence on acquitted conduct). I couldn’t see if a sentencing had been held yet. If he gets that it doesn’t really help quell the notion that one will be punished even if the killing is in self defense.

[Absaroka]

FWIW, my 11 seconds of googling^H^H^H^H^H^H extensive legal research suggests Florida is pretty harsh on felon-in-possession cases (if any FL attys want to chime in, yay!!).

An FIP using a gun in self defense is kind of interesting; I don't know how I feel about it. On the one hand, suppose Fred is found with the gun while doing nothing wrong[1] and gets X years. Should he get less than X years if you find out he had the gun because he used it in legit self defense? Either way he was doing the same thing - possessing a gun while (at the moment at least) doing nothing else wrong.

This is Brett's cue to say 'if you can't be trusted with a gun you should be in prison'. And I have some sympathy for that; in my perfect world if you wanted to commit more than a few felonies you'd have to do them in prison, because people with multiple felony convictions ought to be in prison. But I'm less absolutist than Brett - if someone seems to have been reformed, letting them out on condition of no guns seems like it might be reasonable compromise some of the time. But when, having trusted them that far, you find them with a gun, but no other transgression, what do you do? If you ignore it, you might as well not have the rule. If you have the rule, does it matter whether you used the gun in self defense, or were just carrying it in anticipation of using it for self defense? Tough questions.

[1]hypothetically, the gun is found when he is stopped just because he is a good match for a robbery suspect

[LawTalkingGuy]

I think as a normative matter acquitted conduct shouldn’t influence any sentencing. And I think an FiP, whatever you feel about the crime itself, should be a completely determinant sentence for a specified time. No ranges. Again this is normative not what would actually happen in FL or elsewhere.

States, like mine, often have determinate specifications for when firearms are used in crimes. So for instance you commit an armed robbery and while the judge might have a lot of leeway on the sentence for the robbery itself the firearms spec requires one year of mandatory time to be served prior to and consecutive with whatever you’d get for robbery. It could be incredibly heinous and cruel and you’d get a lot of time or maybe there’d be a lot of extenuating circumstances that would lead to a lighter sentence. But regardless of the robbery circumstances the firearms spec remains the same.

To me FiP should be treated exactly like that, if prison time is contemplated. Some set sentence completely independent of any underlying facts because ultimately they shouldn’t matter for that particular crime. If they do nothing with the gun but possess it, there would be a sentence on that and that alone, If they do something else while FiP then sentence on that consecutive time FiP.* But if they get acquitted on everything but FiP, only sentence for the determinate amount of the FiP.

*plea dealing obviously complicates everything

[Brett Bellmore]

"This is Brett's cue to say 'if you can't be trusted with a gun you should be in prison'. "

The basis for my saying that is that letting the guy out of prison is de facto letting him have guns, even if it isn't legally. The only ex-cons the laws against felon ownership of guns disarm are the ones who didn't need to be disarmed.

The ones who did need to be disarmed will just arm themselves illegally; It's not like they're particularly law abiding, after all!

The law should not pretend black markets aren't a real thing.

[Absaroka]

Your argument misses three points:

1)Sometimes bans work. For one example, the 'Philosopher gone bad' guy got a NICS denial trying to buy a gun at an FFL. He either gave up on the attempt or didn't have the right contacts to get one illegally. I don't think him getting that gun would have led to a happier ending to that story.

2)There is a deterrent effect. I've heard police officers relate asking veteran muggers why they used a toy gun, and they said it was specifically to avoid the sentence enhancement for using a real gun (n.b. I'm not sure all states differentiate between toy or real guns).

3)Sometimes we will release a violent criminal and later find him with a gun, and can draw the inference that his rehabilitation wasn't successful and put him back in prison before he does something bad with the gun. That's a win in my book, as opposed to waiting until he shoots someone.

[Brett Bellmore]

If all we were talking about here was a sentence enhancement, and parole revocations, and it were left at that... Well, I wouldn't think it was bad, because the weight of it would be falling on people who'd signed up for that weight, the felons themselves, during parole or on being caught committing another crime. And it would still leave the ones who'd reformed free to exercise their full constitutional rights once off parole. We wouldn't have a system where some people are second class citizens.

Instead we have this massive regulatory apparatus that severely infringes the rights of non-criminals, with disarming felons merely as an excuse. Background checks and licensing to exercise a civil right! How is that even remotely constitutionally permissible, requiring people to go crawling to the government for permission to exercise a RIGHT? It contradicts the very concept of a "right"!

And all premised on the need to enforce laws of limited utility in the first place.

I won't say permanent revocation of a right consequent to a felony conviction isn't constitutional, (Though it has encouraged a lot of "felony inflation" in order to deprive more and more people of a right many in positions of power hate.) but I do think it's a bad idea maintaining a system where some people are second class citizens, and doubly bad when maintaining it has costs for the innocent.

[Absaroka]

FWIW, there are a couple of issues in play - one is background checks and the other is felon (mentally ill, ...) in possession laws. Your arguments sort of wander back and forth between objecting to one or the other. You might be more persuasive if you tightened that up.

[Brett Bellmore]

I object to both, for a variety of reasons.

1) Fails any reasonable cost/benefit analysis. (It passes the unreasonable ones, because the cost is viewed as a benefit by people who don't want people to enjoy the right.)
2) While life-long loss of one or more rights is constitutional, I think it's generally not a good idea, because it reduces the upside of being reformed, if nothing else.
3) The costs to the innocent, which are most of the costs.
4) The dubious constitutionality of licensing exercise of a constitutional right.

[Absaroka]

Let's look at your objections and FIP laws.

"1) Fails any reasonable cost/benefit analysis. (It passes the unreasonable ones, because the cost is viewed as a benefit by people who don't want people to enjoy the right.)"

You are going to have to show your math here. I'm all for people in general enjoying broad 2A rights. I'm a lot less enthusiastic about Violent Vince being able to legally buy a gun the day after he gets out of prison.

There is a benefit, for example, to the people Philosopher-gone-bad didn't shoot because he didn't get a gun. In his case, he is also better off, I think.

"2) While life-long loss of one or more rights is constitutional, I think it's generally not a good idea, because it reduces the upside of being reformed, if nothing else."

Wait. I think society should be able to tell people 'once you commit a violent crime, no guns for you unless you convince us you are reformed'. Your position is that violent felons ought to have the same right as anyone else. How does that encourage the violent felon to behave?

"3) The costs to the innocent, which are most of the costs."

Wait again. I'll need to see the math on how FIP laws impose costs on those who never broke the law. By definition they only impose costs on the not-innocent.

"4) The dubious constitutionality of licensing exercise of a constitutional right."

What do FIP laws have to do with licenses? They just say that if Violent Vince gets caught with a gun he goes back to jail.

[John F. Carr]

Not killed, but badly injured. A homeowner shot a police officer who snuck into his house. It was at least arguably a legitimate entry despite the stealth. The police officer had been told the homeowner wasn't home, meaning the intruder must be a burglar. No charges were filed. The homeowner's gun license was revoked (which can be done on the whim of the police chief) and he lost a seven figure civil suit by the police officer.

[Brett Bellmore]

While you can get off on self defense for killing a police officer, the difficult part is not being shot dead by the police before you get your day in court.

[Noscitur a sociis]

Which was not loki13's point.

[Jason Cavanaugh]

And yet the police officer doesn't require any of those reasonable beliefs, nor are they required to announce their presence or status before murdering someone.

Doesn't sound right to me.

[Noscitur a sociis]

And yet the police officer doesn't require any of those reasonable beliefs

Incorrect. The reasonable belief element of a self-defense claim would apply to a police officer in the same way as a private citizen in a criminal case, and it's also a required element under the fourth amendment test applicable in this civil case.

nor are they required to announce their presence or status before murdering someone.

Georgia law doesn't require anyone to "announce their presence or status" to justifiably use deadly force.

[Absaroka]

As a non-legal aside, this incident demonstrates reason #9848747467 it's a bad idea to go hunting bad guys. Fort up and call the cops.

If the guy outside had been, in fact, a crook, the same thing could have happened and we wouldn't be talking about it, but the homeowner would be just as dead.

[LawTalkingGuy]

If you want to know know messed up qualified immunity is read the district court opinion in TR v. Lamar County by Judge L Scott Coogler.

Just some jaw-droppingly messed-up reasoning which includes the line, "Even if stripping in front of one’s mother and sister is as embarrassing, frightening, and humiliating as stripping in front of one’s peers (an unlikely proposition), public officials are not obligated to be creative or imaginative in drawing analogies from previously decided cases.” Assuming the officials actually were aware of Safford or the 11th Circuit opinion, DH, they wouldn't need to get "creative" with analogies to the search they contemplated. And that parenthetical is just gross.

And this infuriating belief: "Even if the defendants lacked reasonable, individualized suspicion for the second search—a
question this Court needn’t answer—." Yes you do need to answer! That's a separate Fourth Amendment violation on its own! On the off chance that the first search was permissible and yielded nothing...forcing someone to undergo a second strip search can't be based on reasonable suspicion because it was eliminated the first time. Officers don't get to constantly humiliate someone with never-ending searches simply because the first one might have been legit. Glad the 11th Circuit caught that in its unanimous reversal.

Also useful to note that the 11th Circuit reversed the district court on the state law outrage (otherwise known as intentional infliction of emotional distress).

The District Court stated, "The allegations here fall well short of conduct outrageous or extreme enough to create a question of fact. TR claims the defendants unreasonably searched her after finding evidence of a Schedule-1 drug in her backpack. She doesn’t claim they touched her, groped her, or otherwise abused her physically or sexually, and no evidence suggests they acted maliciously or with the intent to harm. Even if unreasonable, the defendants’ conduct didn’t go “beyond all possible bounds of decency,” nor was it “atrocious and utterly intolerable in a civilized society.”

I don't know what this judge thinks constitutes decency or civilized society, but multiple adults forcing a teenage girl on her period to strip fully nude and bend over TWICE is extremely indecent and I don't think any civilized society could tolerate that. At all.

Man, the facts of this have me angry. And knowing there are courts out there that are so willing to dismiss such horrid violations of human dignity. I hope the clerk and judge who wrote it feel incredibly bad about it.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

This is what happens when government employees define the limits of government.

[David Nieporent]

There are few things in everyday life that would move me to violence, but if I ever found out that a school official tried to strip search my middle school daughter, I would end up in jail.

[Brett Bellmore]

Tsk. You should plan on doing it in a way that minimizes your chances of getting caught.

[Noscitur a sociis]

I believe David Nieporent's point was that he would be so upset that he wouldn't be able to let his rational faculties inhibit his impulse to strike back.

[David Nieporent]

Right. I'm not saying I would slowly and carefully plot revenge. I'm saying that I would lash out immediately.

[bernard11]

As part of his convictions, the courts ordered him to forfeit $110 mil and then work to satisfy the judgments.

I have no sympathy for Ben Kramer, but how is a guy serving a life sentence supposed to "work to satisfy the judgments?"

What's going on here? Were there civil judgments against him, and the government is trying to keep the $110 mil to keep it from being used to pay them?

(I tried to follow the link but got some kind of security warning from my browser.)

[Davy C]

The Federal Bureau of Prisons "pays" inmates to work. If the guy works 24/7 at the max rate of 40 cents per hour, it would take him over 31 thousand years to make $110 million.

What I want to know is how the court will enforce that order. Are they going to hold him in contempt and put him in the county jail until he complies?

[LawTalkingGuy]

While 110 million is crazy, it’s possible for a prisoner to come into some money sometimes.
Once worked on a case where a prisoner defendant in a civil case was going to receive some large life insurance proceeds, and the court entered a prejudgment attachment order against the company to hold onto it and not transfer it until the case was over, so the money was preserved in the event the plaintiff obtained a judgment.

[John F. Carr]

Time spent locked up for contempt may not be counted as serving the underlying sentence. Since this guy is serving life without parole, that means they need to leave his stinking corpse in a federal prison for as long as he was in contempt.

[Toranth]

The word "work" does not appear in the ruling here; instead the case is about how the courts counted the money seized towards his debts.

There are actually two debts here, a $60 million one from Illinois (CSA) and a $50 million one from Florida (RICO).
"Kramer next argues that the district court’s accounting was erroneous because it failed to include all property forfeited in all proceedings related to his criminal enterprise, no matter the jurisdiction. In other words, he wants the district court to calculate the amounts collected by the government in forfeiture proceedings in several jurisdictions to satisfy both his CSA and RICO forfeiture judgments."
So it looks like he's trying to play accounting games to avoid paying the full $110 million.

The money is coming from the sales of his other assets.

[John F. Carr]

It was a confusing case until I realized that he was asking for assets seized from third parties to be applied to his debt.

[ReaderY]

Others would demure, and instead hyphenate “ass-fucking.”

[gormadoc]

"while she's on her period"
Don't really see why this matters.

[Brett Bellmore]

Enhanced embarrassment, I assume.

[David Nieporent]

When even Brett gets it, you should probably be embarrassed yourself. Do you have a daughter who has reached adolescence? Have you ever known a girl who has? They typically do not find their own menstruation a fun thing to publicize.