Short Circuit: A Roundup of Recent Federal Court Decisions

Neighbors from hell, unvaccinated prison staff, and unconscionable sentences.

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

Is there such a thing as the "Will of the People"? Over at Liberal Currents, Anthony Sanders, the director of IJ's Center for Judicial Engagement, humbly submits that if there is one it's an indeterminate mist—and, moreover, that judges do a lot of harm by attempting to divine the People's Will instead of dispassionately interpreting the law.

• First Circuit: We're going to reinstate this First Amendment lawsuit by Courthouse News Service, seeking faster access to newly filed complaints in state court. (But we'll also note in passing that when the Seventh Circuit considered the same issue, it abstained.)
• After being struck in the head with a metal handlebar, called the n-word, and having his life threatened by four white men in Lewiston, Me., Black man retrieves a gun from his home nearby, returns to the scene, and fires a shot into a dirt pile. For this, he is convicted and sentenced to three years in prison. First Circuit: It's concerning that, among other things, the only Black potential juror in the 32-person venire was struck for a seemingly trivial reason, only having an 11th grade education. But habeas denied.
• If you saw two guys named Sex Offender and Political Speaker, which one would you think got meaningful, evidence-focused judicial review of their right to engage in anonymous online speech? We'd say Political Speaker, wouldn't you? Second Circuit: You'd be wrong, though. It's Sex Offender.
• After the plaintiff prevails at summary judgment in his due-process challenge to North Carolina's sex-offender registry, the state legislature changes the law to fix the due-process problems. That means the judgment, which was still on appeal, is vacated as moot. State officials: And that means the plaintiff doesn't get attorney's fees because he isn't a "prevailing party" anymore. Fourth Circuit: Did you guys miss the part where he prevailed? It's right there in the first sentence.
• Allegation: After reporting sexual harassment by a supervisor, federal public defender in North Carolina is, among other things, retaliated against and effectively forced to resign. Fourth Circuit (sans any Fourth Circuit judges): Some of her constitutional claims should not have been dismissed.
• LEGAL ALERT! Are you a West Virginia lawyer who does plaintiffs-side drug and device product liability lawsuits? Do you like to run advertisements featuring the logos of gov't agencies like the FDA? Have you been ordered to STOP using the word "recall" in reference to things that have not been recalled? If so, contact your local federal appellate court to find out if your First Amendment rights have been violated. (Fourth Circuit: They have not.)
• Allegation: Without warning, Baytown, Tex. police violently yank woman, who is perhaps drunk but in no way threatening, to ground. Excessive force? District court: Could be! Fifth Circuit: Reversed. She was awfully mouthy and the police only hurt her a little, so the force wasn't excessive. Besides, qualified immunity means we don't judge officers' actions with the benefit of hindsight. [Ed.: Nuh-uh.]
• During plea bargaining, prosecutors will often offer criminal defendants an escape from unconscionably long mandatory minimum sentences if they waive their right to appeal their conviction or challenge it on collateral review. It's a system that's ripe for abuse and coercion. But, per the Sixth Circuit, that's no reason for a district judge to have a blanket rule against approving plea deals that contain these waivers. Mandamus-ed!
• To pay for the cost of their incarceration, Minnesota officials deduct up to 50 percent of sexually dangerous civil detainees' $10/hour wages (for labor including cooking, cleaning, woodworking, and sign manufacturing). A minimum-wage violation? Eighth Circuit: They aren't employees, so no.
• District court: California prison officials must adopt a statewide policy mandating COVID-19 vaccinations for all staff (with medical and religious exemptions). Ninth Circuit: Vacated. The current policy (in which unvaccinated staff are regularly tested and all prisoners can get vaccinated) may not be the most medically efficacious, but that does not mean it violates the Eighth Amendment.
• Man uses Yahoo and Facebook to organize trips to the Philippines for underage encounters and to receive underage porn. Both services find evidence of this and kind of on their own initiative, but kind of because of federal laws, pass it on to the FBI. Fourth Amendment violation? Ninth Circuit: No state action so it's fine. Dissent: That's true for Facebook, but not for Yahoo. Orin Kerr: "Holy crap," this case just made some crazy-wild law on digital seizures and terms of service without the judges even realizing it.
• Woman purchases home in Los Angeles next-door to a detective and her family—whom she soon discovers to be neighbors from hell. They park on her driveway, hose their dog's droppings onto her property, and call police on her on multiple occasions. In one incident, they alleged that she tried to run over the detective's daughter; she's arrested but later declared factually innocent thanks to a surveillance video. In another, they alleged that she stabbed the detective's husband. (He was not stabbed.) Did the detective violate the Fourth Amendment by procuring a false arrest? Jury: Sure did, have $3 mil for the trouble. Huzzah! Can she take their home to collect on the judgment? Ninth Circuit: Sure can.
• From 2017 to 2020, Espanola, N.M. officials repeatedly refuse to turn on water unless new homeowners pay off the previous owner's water bill. And, says the city, that means they can't sue in 2020 because the statute of limitations started running in 2017. Tenth Circuit: But the "repeated violation" doctrine (which is different, of course, from the "continuing violation" doctrine) salvages at least some of the homeowners' claims.
• Man charged with particularly heinous crimes is allegedly advised by counsel not to accept plea deals for 15-, 10-, and 8-year sentences because the gov't doesn't have the evidence convict. It does, and he gets a 30-year sentence. Tenth Circuit: Could be the man's Sixth Amendment rights were violated.
• And in en banc news, the Fifth Circuit will not reconsider its ruling that an internet troll cannot sue the HuffPost in Texas for libel (for calling him a Holocaust denier) as HuffPost is based in New York and incorporated in Delaware. Dissental: But it has Texas readership and Texas-specific advertising, and, as a Texas resident, he was largely injured in Texas.
• And in more en banc news, the Sixth Circuit will not reconsider its ruling forgiving the feds' failure to timely argue that a vehicle passenger lacked Fourth Amendment standing to challenge a search of the car.
• And in amicus appearance news, next week IJ will argue to the Fourth Circuit that the feds can't forfeit $69k cash because they didn't prove—or even specify—the crime they believe the property owner committed. (He did drunkenly crash his car into a concrete pillar, but that's not something that gives rise to a federal forfeiture.) Under the Civil Asset Forfeiture Reform Act of 2000, the burden is on the gov't to affirmatively prove forfeitability, and the district court erred by instead putting the burden on the owner to defend against the gov't's speculation and conjecture.

Victory! In 2015, officials in Zion, Ill., passed an ordinance requiring that renters (of whom the mayor said there were too many) submit to warrantless interior home inspections on pain of $750-per-day fines against their landlords, who could also lose their right to rent the property. (One landlord was fined the astronomical sum of $114k!) But last week—following a federal judge's refusal to dismiss a challenge to the ordinance last year—the city amended its ordinance. Now inspectors will need either a warrant or consent to enter a home. The suit will proceed, however, on the question of whether IJ's clients are entitled to declaratory relief and damages for past Fourth Amendment injuries. Click here to learn more.

Comments

[John F. Carr]

In the Fourth Circuit case, three senior circuit judges wrote a 118 page opinion in 8 weeks after argument.

[Michael D]

“The will of the people” is a bovine scat term that means nothing other than what a politician claims in support of a particular policy or on an issue. The fact that nobody can know what it is or represent it on every question before a legislature is one of many reasons why democracy is a load of crap, legislative law is a load of crap and government is a load of crap.

I am certain someone will suggest that humans cannot exist in civil society without the force of law to demand compliance to government. They assume that without the state (a polity that maintains a monopoly on the legitimate use of violence), chaos would result.

I suggest that the legitimacy of the state cannot rest on the use of force to maintain compliance and that force can only be justified as an act of self defense or the defense of others.

The advent of the state to perform these acts of self defense has never been necessary. It is nothing but a fiction to perpetuate the state.

“Anarchy doesn’t mean out of control; it means out of their control.” ~ Jim Dodge

“The most absurd apology for authority and law is that they serve to diminish crime. Aside from the fact that the State is itself the greatest criminal, breaking every written and natural law, stealing in the form of taxes, killing in the form of war and capital punishment, it has come to an absolute standstill in coping with crime. It has failed utterly to destroy or even minimize the horrible scourge of its own creation.” ~ Emma Goldman

“I define anarchist society as one where there is no legal possibility for coercive aggression against the person or property of any individual. Anarchists oppose the State because it has its very being in such aggression, namely, the expropriation of private property through taxation, the coercive exclusion of other providers of defense service from its territory, and all of the other depredations and coercions that are built upon these twin foci of invasions of individual rights.” ~ Murray Rothbard

[apedad]

And yet here you are enjoying the benefits of our modern society.

Do you often hear the word ‘parasite’ when people talk about you?

[Noscitur a sociis]

“I define anarchist society as one where there is no legal possibility for coercive aggression against the person or property of any individual.

So what happens to someone who illegally engages in that sort of coercive aggression?

[bernard11]

Good question.

Though it's hard for me to understand exactly how one distinguishes legal from illegal behavior in an anarchist society.

Three quotations from people you agree with are no sort of argument.

[Michael D]

There is no way to respond in this space and forum to your question. May I therefore suggest this article and its associated articles: https://medium.com/@oideal/stateless-justice-por-stephan-kinsella-b1fc4b9700eb

[Noscitur a sociis]

The answers provided there appear to be:

1. There's no way to tell how it would and so it's probably not worth thinking too hard about;

2. Although you might expect a fair amount of vigilante revenge killings, ultimately a system would develop where criminals had to pay restitution to their victims;

3. Accused criminals could be forcibly punished by the victims (or private companies working for the victims) without violating the nonaggression principle because it's just a defensive response to the criminal's aggression (even though some accused criminals would probably deny committing the crime in the first place);

4. Ultimately everyone would need to carry some kind of insurance (or else face random vigilante punishment), so your insurance company would force you to not commit crimes.

This system doesn't seem to have much to recommend it, in my view.

[Noscitur a sociis]

If the judge wants to write plea agreements, he's welcome to apply for a job at the USAO. But as long as he stays in the bench, his authority is limited to accepting or rejecting the agreements the parties make, and by rejecting this one he's sending the defendant to trial.

[Noscitur a sociis]

This obviously should have gone to LawTalkingGuy below.

[LawTalkingGuy]

The Sixth Circuit is reading a lot of things into the text of Crim. R. 11 that simply aren’t there. Literally nothing about requiring a case-specific reason for rejecting a plea or not being allowed to have policies regarding appeal waivers. There’s certainly not enough there to justify mandamus relief. And as Carissa Hessick pointed out: this flips the separation of powers on its head. The prosecutors don’t get to control the court’s judgement entry. It’s the court’s order, not the prosecutors’. If the court doesn’t want an appeal waiver, nothing in rule 11 forces then to journalize one because they don’t have a case specific reason to reject one. Bad decision that gives trial courts even less power to control coercive plea bargaining tactics.

[Noscitur a sociis]

I'm sure Mr. Townsend would have greatly appreciated the judge's assistance during the extra 10 years he wanted him to spend in prison.

[LawTalkingGuy]

Did the judge actually want him to spend an extra ten years in prison or are you alluding to the trial penalty?

[Noscitur a sociis]

Had the judge had his way and rejected the plea (and/or when the judge inevitably rejects it again on remand using the right magic words), the defendant will proceed to trial, at which proceeding he will almost certainly be convicted, and after which he will face a mandatory minimum 10 years greater than he would have under the plea agreement. I suppose without reading his mind, I can't say for sure what the judge "wanted", but I certainly can understand the inevitable consequences of what he tried to do. And if Mr. Townsend doesn't yet, he'll have plenty of time to think it over.

[LawTalkingGuy]

OR the government could just not have put an appeal waiver in and get over themselves. Believe it or not…prosecutors have agency!

[Noscitur a sociis]

If the judge wants to write plea agreements, he's welcome to apply for a job at the USAO. But as long as he stays in the bench, his authority is limited to accepting or rejecting the agreements the parties make, and by rejecting this one he's sending the defendant to trial.

[LawTalkingGuy]

Except that’s not what happened in the case. He didn’t go to trial, the USAO went to the circuit court and they did a strained reading of Rule 11. What should have happened is the usao should have been like: I am confident there will not be any issues with this plea and dropped the waiver requirement. Again: prosecutors have agency, you can and should criticize them for their decision more than the Court.

[ReaderY]

The prosecutor has the option of negotiating a new plea deal with no appeal waiver. Trial is by no means the only possible alternative.

And the district court can simply review each plea bargain case by case and decide individually not to accept it because the appeal waiver renders it unfair.

[momo]

> this flips the separation of powers on its head. The prosecutors don’t get to control the court’s judgement entry. It’s the court’s order, not the prosecutors’.

This ignores the reality that most judges are ex-prosecutors.

To them there is no separation of powers between their old job and their new one. They are different rungs on the same career ladder.

What you have here is a bunch of ex-prosecutors sticking up for their prior job title.

[mydisplayname]

"In a country whose constitution is derived from the will of the people," what happens when the will of the people is found to be, at best, an indeterminate mist?

The Will of the People is expressed in elections and by other means, including the end of the pike. The Second Amendment exists in case the First Amendment fails: ultimately, the Will of the People is easily determined.

[The remainder of the Jefferson quotation is "directly expressed by their free suffrages; where the principal executive functionaries, and those of the legislature, are renewed by them at short periods; where under the characters of jurors, they exercise in person the greatest portion of the judiciary powers; where the laws are consequently so formed and administered as to bear with equal weight and favor on all, restraining no man in the pursuits of honest industry, and securing to every one the property which that acquires," and goes on to provide a tidbit of moral guidance differentiating revolution and insurrection.]

[darkknight9]

"Huzzah! Can she take their home to collect on the judgment? Ninth Circuit: Sure can."

Totally stuck in my head after reading that. 🙂

[ReaderY]

In the North Carolina case, I do think that the defendants do have an interest separate from the State of North Carolina. They claim they are not proper parties to sue and have no responsibility for the conduct the plaintiff class complained of. If this is correct, then it is not fair to hold them accountanle for the State of North Carolina’s unconstitutional conduct, and hence no obligation to pay attorney’s fees. So they ought to be entitled to appeal the judgement to vindicate their claim they are not proper defendants and shouldn’t have been sued in the first place.

Of course, if at least one of the sued defendants is a proper defendent, they are on the hook for the attorneys’ fees.