Short Circuit: A Roundup of Recent Federal Court Decisions

Retaliatory investigations, reckless investigating, and a consultant's duty.

New on the Short Circuit podcast: Salt mines and open fields.

• Can plaintiffs challenging Maine's vaccine mandate for healthcare workers proceed pseudonymously? The First Circuit says no; they have failed to show they will suffer severe harm sufficient to outweigh the public's (and media intervenors') interest in open litigation.
• The Maine Constitution provides for a "people's veto," under which Mainers can have a state law temporarily suspended and put to a popular vote by submitting a petition signed by at least 10% the number of voters in the last gubernatorial election. But those signatures may only be collected by state residents who are registered to vote. A First Amendment violation? First Circuit: Sure looks like one. Preliminary injunction affirmed.
• Whole Foods has a dress code policy forbidding staff from wearing clothing with visible slogans or ads. But it's not exactly enforced. Until . . . a bunch of employees start wearing "Black Lives Matter" masks in June 2020. Is there a claim for racial discrimination under Title VII? First Circuit: There could be a claim, but there's an "obvious alternative explanation": the sudden mass expression of a controversial message. Concurrence: You're overthinking this, majority. The employees simply weren't targeted because of their race.
• Saudi man, whose story and friendship with Jamal Khashoggi is documented in The Dissident (a movie your humble editor unequivocally recommends), now lives in Montreal. Allegation: Management-consulting giant McKinsey prepared a report identifying the man to the Saudi gov't as an influential dissident using Twitter to criticize the gov't. With this information, the Saudi gov't targeted the man for assassination and his family and friends for torture. Second Circuit: Alas, McKinsey owed the man no duty, so his case is toast.
• In which the Second Circuit soberly weighs whether a reasonable member of the public could have believed that the "pedophile-detecting 'device'" that beeped when waved over former Judge Roy Moore was, in fact, a scientific marvel capable of detecting pedophiles. Click the link for the shocking answer! (NB: The answer is the one you think.)
• Feud among Philadelphia-based bank's board of directors deepens following the death of one director; accusatory press releases are released; and it all culminates in a lawsuit by one group of directors against the other. District court: You people clearly can't handle this, so I'm appointing a custodian to oversee replacing the deceased director and adding a ninth director. Third Circuit: First, we have appellate jurisdiction (there's no difference between a receiver and a custodian for 28 U.S.C. § 1292 purposes) and the district court had subject matter jurisdiction (the federal claims were not pretextual). Second, this situation was "dramatic," but it wasn't extreme, so the district court shouldn't have appointed a custodian. Reversed and remanded.
• Allegation: Tyson chicken ignored COVID-19 guidance, causing employee deaths. Tyson: But the federal government told us to stay open, so we should be able to defend ourselves in federal court. Fifth Circuit: Encouragement is not a requirement. Go back to state court.
• Allegation: Nursing home ignored COVID-19 guidance, causing resident deaths. Nursing home: But the federal government manages public-health emergencies, so we should be able to defend ourselves in federal court. Fifth Circuit: This is a normal negligence suit. Go back to state court.
• Last fall, the Biden Administration, like many previous administrations, issued a guidance to ICE agents that individuals who are a threat to "national security, public safety, and border security" should be prioritized for deportation. But several states sued and obtained a nationwide preliminary injunction from the district court. Sixth Circuit: Reversed. It's a memo, how do you even enjoin one of those? And the states probably don't even have standing. Meanwhile, the Fifth Circuit, reviewing a challenge to the same guidance by a different set of states, sees things very, very differently.
• Yes, yes, says the Sixth Circuit, a member of Butler County, Ohio's zoning board voted to grant a variance to a piece of property he secretly had an ownership interest in, but whoever said life was fair? Not us federal courts, that's for darn sure.
• Seventh Circuit: Chicago-based preservation group sues the Secretary of Transportation over plans to build the Obama Presidential Center in historic Jackson Park on the South Side of Chicago. There's just one problem: The feds have no control over what Chicago does with its public parks.
• Generally, prosecutors are not allowed to introduce evidence of previous crimes to prove a criminal defendant's propensity to commit the crime with which he is charged—the theory being that the law punishes bad acts, not bad people. Eighth Circuit: But in this case—in which a shooting suspect claimed he "never" had a gun when in fact he had been convicted of assault with a firearm over 20 years ago—the evidence was used to show that he's a big ol' liar.
• Allegation: Scott County, Mo. officer rapes the 15-year-old son of a fellow officer. After the fellow officer demands redress from county officials, a child-welfare worker instead opens an investigation into the fellow officer and his wife, finding them to be neglectful parents. (Had the finding not been overturned on appeal, it would have cost both parents their livelihoods.) Eighth Circuit: As a general matter, gov't officials are prohibited from retaliating against people for their constitutionally protected speech, but whether that means gov't officials can be held liable for trying to take away people's kids in retaliation for their speech is an open question. (And will remain so.) Qualified immunity for the child-welfare worker.
• Allegation: Victim tells 911 and then responding officers that he was shot by a Black male; a witness reports the same. But a St. Louis detective gets warrants for two white brothers, who spend nearly two years incarcerated or on house arrest. Eighth Circuit (over a dissent): The detective didn't know the victim said the perp was Black, so qualified immunity even if his own failure to do basic investigating was the reason he didn't know.
• Allegation: St. Louis SWAT officers raid home, shoot man dead, and place an AK-47 next to his body. Officers: He fired at us! Family's ballistics expert: In fact, all 93 rounds were fired by police. Eighth Circuit: Which is the kind of factual dispute that must be resolved at trial. No qualified immunity on the excessive force claim.
• Allegation: Oil companies ignored global warming, causing extreme weather and rising sea levels. Oil companies: But the federal government has all sorts of ties to oil and gas production, so we should be to defend ourselves in federal court. Ninth Circuit: This is not a federal issue. Go back to state court.
• Ninth Circuit to DOJ: If you want immigration cases to linger forever, we can't stop you from doing it on the BIA's docket, but we're not going to let you do it on ours.
• Septuagenarian former Montana state senator and his retired buddy maintain a website that grades politicians on how often they vote with the rest of the Republican Party. They also traverse the state, on their own dime, giving PowerPoint presentations to local Republican groups. The state campaign finance watchdog goes after them, accusing the duo of being an unregistered political committee. Ninth Circuit: As applied to these fellas, the law is unconstitutionally vague. Dissent: These are sophisticated guys; they could have figured it out.
• Tenth Circuit: Officials in suburban Denver school district violated the First Amendment when they disciplined student who, while off campus, posted a picture of friends in thrift-store military garb to his private Snapchat story and captioned it, "Me and the boys bout [sic] to exterminate the Jews." On remand, the district court should address whether the school officials are entitled to qualified immunity.
• Allegation: Responding to hoax 911 call about a hostage situation, Wichita, Kan. officer shoots unarmed, unthreatening man dead on his front porch 10 seconds after he came outside and without identifying as police. It was the 21st police shooting in Wichita in six years, none of which resulted in any meaningful investigation or discipline. Tenth Circuit: No qualified immunity for the officer, but the claims against the city are dismissed. (The hoaxer is serving 20 years in prison. The officer was promoted last month.)
• New Mexico child-welfare workers approve foster placements at home of woman they know to have substance abuse issues and a history of violence, among other red flags. After 4-month-old dies in her care, on night when temperatures fell below zero, investigators note that the house has holes in the walls and ceiling and lacks heating. It is strewn with rotten food, soiled clothes and diapers, trash, and dog urine and feces. Tenth Circuit: The child-welfare workers violated the child's and her surviving siblings' substantive due process rights. But the case is remanded back to the district court to see if those rights were clearly established.
• And in amicus brief news, IJ is asking the Supreme Court to take up a case about the seizure of guns from a home without a warrant or exigent circumstances. The case threatens to undermine Caniglia v. Strom, in which the Supreme Court ruled, just last year, that officers who seized guns from a home without a warrant or exigent circumstances violated the Fourth Amendment. (The Second Circuit distinguished the case in a footnote.) And it also gives the Court an opportunity to repudiate the "special needs" exception to the warrant requirement, which gives the gov't a free pass into people's homes so long as it can come up with a loosey-goosey health and safety justification.

Villainy! Last week, the Pennsylvania Game Commission disclosed that its officers have been spying on IJ's client, the Punxsutawney Hunting Club, by putting a surveillance camera on the club's private property without any warrant or notice. The disclosure comes as part of litigation filed by the club last year after wildlife officers repeatedly trespassed on its land, harassing members and guests for any reason or no reason. "We never had a clue it would be as obscene as having game cameras spying on us," says Frank Stockdale, president of the club's board. "It's outrageous to think someone's taking pictures of you on your own private property," he added. "It's not very becoming of our government that we have this stuff going on in our state." Click here to learn more.

Comments

[BillyG]

Eighth Circuit: As a general matter, gov't officials are prohibited from retaliating against people for their constitutionally protected speech, but whether that means gov't officials can be held liable for trying to take away people's kids in retaliation for their speech is an open question. (And will remain so.) Qualified immunity for the child-welfare worker.

I’m failing to see how trying to take away someone’s kids isn’t retaliation. I’m also failing to see how the 8th circuit should be allowed to keep their jobs.

Allegation: Responding to hoax 911 call about a hostage situation, Wichita, Kan. officer shoots unarmed, unthreatening man dead on his front porch 10 seconds after he came outside and without identifying as police.

And since Andrew Finch was a white guy the incident never made national news.

[DaivdBehar]

Qualified immunity for the child-welfare worker.

OK, then formal logic permits qualified violence against the child welfare worker.

[John F. Carr]

The shooting was all over the news when it was news, four years ago.

[Syd Henderson]

I remember the case, so it must have been.

[tkamenick]

It is retaliation. But QI means they get to keep trying different kinds of retaliation as much as they want until a court tells them they can't anymore.

[TwelveInchPianist]

"I’m failing to see how trying to take away someone’s kids isn’t retaliation."

It is. But Judges Benton, Shepherd, and Stras are OK with child welfare workers taking away people's children in retaliation for their speech.

[Gasman]

Allegation: Oil companies ignored global warming, causing extreme weather and rising sea levels. Oil companies: But the federal government has all sorts of ties to oil and gas production, so we should be to defend ourselves in federal court.

Seems like from a just perspective, defense should successfully be this: Let he who has not used oil in the past 24 hours file the first lawsuit.

As this is a Hawaii case, and virtually all of their electric power is petroleum based, turning on a light bulb, or any form of powered vehicle other than a bicycle is consuming the thing that the suit rails against.

[John F. Carr]

The Supreme Court will have to put a stop to all this, but not on the grounds that there is a complete federal defense justifying removal.

[Noscitur a sociis]

On what basis do you see the Supreme Court being able to hear the case, but not a lower federal court?

[John F. Carr]

Defenses based on federal law do not ordinarily allow removal, but can be reviewed by the Supreme Court.

[Longtobefree]

The bicycle was manufactured using power. Not allowed.
In fact, no shoes for walking. Or any manufactured clothes.
Or houses.
Or office buildings for the courts.

Or maybe just require the allegation that the oil companies ignoring the (theoretical) global climate warming change has caused anything at all be actually proved. Direct physical evidence.

[TwelveInchPianist]

"The bicycle was manufactured using power. Not allowed."

And the calories consumed by the rider were produced using fossil fuels.

[Krayt]

No shoes for walking

Most shoe stores in malls are fronts for the larger Nike corporation. I went in one looking for leather sandals. These shoes were, in the words of an SNL shoe ad skit in the OC, all "Fine petroleum products!"

[ReaderY]

How could a lookout or getaway driver of a bank robbery be punished in New York? They are simply, respectively, supplying others with information about the police’s whereabouts and providing transportation. If, as the 2nd Circuit suggests, their awareness of their associates’ intentions is simply irrelevant to whether or not they have a duty to the bank under New York law, then how have they breached any duty?

Or is it simply that the bank canmt sue them because they have no duty of care to the bank, separate from whether they have any criminal liability to the state of New York?

[John F. Carr]

I assume intent has to be proved. What I don't know is how much intent can be inferred.

In 2019 the "Acting Deputy Commissioner for Legal Matters" of the New York City police department threatened to put people in jail for revealing where police were enforcing traffic laws, because drivers might obey the law when police were around. Google (Waze) was not impressed and continued to report law enforcement activity.

[MatthewSlyfield]

When was the last time a bank brought a civil case against the lookouts and/or getaway drivers for a bank robbery? I'm guessing never.

The court ruled in a case having nothing to do with banks that individual A owed no duty to Individual B under circumstances C.

This does not generalize the way you imply.

Among other things, the defendant's lack of knowledge of the Saudi's intentions was not the basis of the decision that he had no duty of care.

As such, we conclude that the complaint does not allege the existence of any sort of special relationship that New York courts recognize as creating a duty to control—that is, by McKinsey having actual control over the Saudi government and MBS, or by it having a duty to protect Abdulaziz from the conduct of the Saudi government

[bernard11]

Wait a minute.

McKinsey apparently deliberately identified Abdulaziz, and two others, to the Saudis as dissidents. And oh gee, how could they have known something bad would happen? Get fucking serious. They are accomplices to whatever happened to the dissidents and their families.

I go to Tony Soprano and say, "You know that guy who keeps posting stuff about all the things you and your guys are doing, and trying to get the police to act? Here's his name and address."

Now what?

Here's what McKinsey said,

We are horrified by the possibility, however remote, that [the
McKinsey Report] could have been misused in any way… We
have seen no evidence to suggest it was misused, but we are
urgently investigating how and with whom the document was
shared.

Sure they are.

The Court may be right as a matter of law, but if so the law is worse than an ass.

[MatthewSlyfield]

Perhaps the plaintiff should have tried a different cause of action than negligence.

Per the court, under New York law, you can only be liable by negligence for the actions of a third party if you have some measure of control over the third party's actions.

Is that really such an awful standard that it makes the law an ass?

[bernard11]

That depends on what "some measure of control" means.

Obviously, McKinsey wasn't telling MBS what to do. OTOH, there was, at a minimum, a serious risk that he would act against the dissidents.

Enabling predictable behavior isn't far off of "controlling." If I smuggle a gun into a prison, and people get killed, do I get to claim that I didn't control the prisoner's action, and have no responsibility for the deaths?

[MatthewSlyfield]

Again, per the court for negligence for a third party's actions NY law requires actual control, the authority to tell the third party what to do.

No liability under a negligence theory is not the same as no liability period.

Is it the law's or the court's fault that the plaintiff brought the wrong cause of action.

[tkamenick]

Somebody acting as a recall/petition/referendum/whatever circulator, under the specific provisions of a state law, is effectively acting as a government official. I see zero reason why anybody would have a First Amendment right to act on behalf of the government that way. All the non-residents and non-voters can still speak out in favor of whatever is being petitioned.

[Zarniwoop]

Interesting theory.

Is someone collecting signatures for a political party, under specific statutes for a politician to get on a ballot, also "effectively acting as a government official"? Why or why not?

Because both petition/referendum signatures and ballot access signatures sure sound like "acting on behalf of a private org according to gov't rules", not being a "gov't employee".

[Your Majesty]

Tom Wolf's bureaucracy spying on law-abiding citizens without a warrant?

Knock me over with a feather.

[Sarcastr0]

The next "I Am Charlotte Simmons" won't research itself!

[Rev. Arthur L. Kirkland]

McKinsey increasingly seems an organization without a moral compass, operated largely by lousy people.

I hope better Americans arrange to have our government stop contracting with the amoral-to-immoral McKinsey.

[Krayt]

Saudi man, whose story and friendship with Jamal Khashoggi is documented in The Dissident (a movie your humble editor unequivocally recommends), now lives in Montreal. Allegation: Management-consulting giant McKinsey prepared a report identifying the man to the Saudi gov't as an influential dissident using Twitter to criticize the gov't. With this information, the Saudi gov't targeted the man for assassination and his family and friends for torture. Second Circuit: Alas, McKinsey owed the man no duty, so his case is toast.

This is the most heinous thing a US company has done since the ea4ly days of Putin, when he first took over all the independant TV stations, then hired a US firm to manage them, which it happily did.

[Krayt]

Well, a heinous thing. I am sure there's been worse in the interim.

[Rev. Arthur L. Kirkland]

With respect to that Third Circuit decision, I join those who believe a reliable (but not infallible) course is to favor the side that does not include Brian Tierney. In this case, Tierney's group was fortunate to draw three of the Third Circuit's lesser members.

[F.D. Wolf]

In which the Second Circuit soberly weighs whether a reasonable member of the public could have believed that the "pedophile-detecting 'device'" that beeped when waved over former Judge Roy Moore was, in fact, a scientific marvel capable of detecting pedophiles.

How fatuous.

If I have a device I say can detect pedophiles, and I wave it over you and it beeps, then I am calling you a pedophile. And if you are not, I have defamed you.

[Rev. Arthur L. Kirkland]

What makes conservatives so impervious to humor? It can't be entirely attributable to on-the-spectrum issues.

[Ben of Houston]

I have to agree. This focuses on the wrong thing. Cohen, like it or not, is a political commentator who engages in political satire. He publicly accused the judge of a serious criminal offense in a political film. The fact that he did so in an absurd manner does not remove the fact that he made that accusation. Given that everything Cohen does is in an absurd manner, that makes the "detector" nonsense even less of a shield. Any rational viewer would think that there is no way he would make such a statement without significant evidence.

[Beldar]

Not if I've signed a blanket and prospective release beforehand.
Did you read the linked opinion, or just decide it was "fatuous"? If you read it, please share with us the specific legal holdings you believe to be wrong, and the precedent supporting your views.

[F.D. Wolf]

Sharp analysis there, of both what I wrote and what the court wrote.

The court did not say it was not defamation; it said by signing the release, he had waived the claim. I did not take issue with the court's decision, but with Ross' description of it, which is misleading, and, yes, "fatuous".

[Krayt]

In which the Second Circuit soberly weighs whether a reasonable member of the public could have believed that the "pedophile-detecting 'device'" that beeped when waved over former Judge Roy Moore was, in fact, a scientific marvel capable of detecting pedophiles.

Someone sued Vitamin Water, produced by Coke, claiming it wasn't actually healthy for you. Coke lawyers stood in court and claimed no reasonable member of the public would think something called "Vitamin Water" was healthy.

A good laugh was had by all, then lawyers went home with fatter pockets.

[not me]

"no reasonable member of the public would think something called 'Vitamin Water' was healthy"

If the reasonable members of the public know anything about the vitamin/supplement industry, this claim would be correct.

[David Nieporent]

And if you are not, I have defamed you.

Nope. Not the way it works. Much too simplistic an analysis.

[F.D. Wolf]

I can't claim I've done a comprehensive survey, but I'm fairly certain that calling someone a pedophile will constitute defamation per se in any American jurisdiction. See, e.g, Longbehn v. Schoenrock, 727 N.W.2d 153, 159 (Minn. App. 2007) ("[W}e hold that in almost every circumstance a reasonable listener would believe that calling a person a pedophile imputes serious sexual misconduct or criminal activity to that person. It is, therefore, defamatory per se.")

[David Nieporent]

No. Just because the phrase of the form "Person X is something bad" can be defamation, does not make it defamation in all contexts. It's not defamation if a reasonable person would understand it to be satire, for instance. It's also not defamation if it's an opinion based on disclosed facts.

No reasonable person thinks a "pedophile detector" is a real thing; it was obvious satire. Just like nobody thought that Jerry Falwell had actually lost his virginity to his mother in an outhouse.

[F.D. Wolf]

Obviously, no reasonable person would believe the Falwell story was being presented as fact.

Likewise, I don't believe any reasonable person would fail to recognize that Cohen was accusing Moore of being a pedophile. But that would ultimately be a question for a jury. Using props and a silly voice does not give someone license to commit defamation.

[David Nieporent]

Obviously, no reasonable person would believe the Falwell story was being presented as fact.

And likewise, no reasonable person would believe that a pedophile detecting machine was a real thing, and would therefore not believe that Cohen's statement was being presented as fact.

[Shamie Ervin iv]

Pedophile detection device: too funny!

And John Ross, you are a world treasure.

And to wacky F. D. Wolf: It was a gag, you big dummy, a little like something funny and embarrassing rigged up by James O'Keefe.

Chill!

[Rev. Arthur L. Kirkland]

" The detective didn't know the victim said the perp was Black, so qualified immunity even if his own failure to do basic investigating was the reason he didn't know. "

We need to find a way to attract a better class of people to law enforcement. And to our military.

Far too many of our current police officers are better suited for shelf restocking, valet parking, quick service oil changing, and similar lines of work.

[Davedave]

Mostly they have failed at such jobs, hence having to become polices.

[FivebySixThree]

most government jobs attract those who could not function well enough in society for a private employer to justify the risk of hiring them

[Krayt]

And at my age they are all retired with full benefits, while I still work. Joke's on them!

[Jerry B.]

Sometimes Short Circuit is just so damn depressing. This is one of those times.

[SomeGuy 2]

Whole Foods has a dress code policy forbidding staff from wearing clothing with visible slogans or ads. But it's not exactly enforced. Until . . . a bunch of employees start wearing "Black Lives Matter" masks in June 2020. Is there a claim for racial discrimination under Title VII? First Circuit: There could be a claim, but there's an "obvious alternative explanation": the sudden mass expression of a controversial message. Concurrence: You're overthinking this, majority. The employees simply weren't targeted because of their race.

Per the opinion both white and black employees had the same policy applied against them even-handedly. And that's not as the defendant tells it, that's assuming the amended complaint is true!
I'm gob-smacked the concurring opinion isn't the majority. The workers might have a claim for some other reason, but Title VII simply doesn't cover this situation.

If the plaintiffs were right here, then it would create rather insane results. Your employer can impose a generalized ban on messages on masks and such, but if it mentions a group protected by Title VII then it can't. So they're stuck with you wearing your "I LOVE EATING PUSSY" mask. That can't be right.

[Ed Grinberg]

If the plaintiffs were right here, then it would create rather insane results. Your employer can impose a generalized ban on messages on masks and such, but if it mentions a group protected by Title VII then it can't.

Title VII, and other parts of the Civil Rights Act pertaining to private employers, do indeed produce insane results. In a sane world, a private employer would be able to hire / fire / promote whoever he wants, on any basis. (And, of course, tell them what they can and can't wear.)

[Krayt]

It's not about banning BLM per se, just banning it while never enforcing other cases before.

There was a case where some university wanted to condemn a century-old business to get the land, and the business put up a very long banner along its wall complaining of this abuse. The city ticketed them.

A city employee admitted they never enforced that before and only did so because of the mesage. Oh, dear!

[Krayt]

I wonder how that case turned out. I assume the officials were fired in disgrace, the elected ones lost the next election or were impeached, and all coughed up money for abusing the power of government to silence opposition.

[Longtobefree]

You can assume that.
You can also assume that the democrats are deeply interested in individual freedoms.
You can further assume that all who post here are serious thinkers, interested in the philosophy of libertarianism, and reasonable human beings.
(but don't bet your paycheck that way)

[Beldar]

I commend the Second Circuit for its dry understatement in the Roy Moore case. Roy Moore is, behind Trump, the highest-profile and most thorough-going enemy of the Rule of Law in modern American history. Kudos to the Second Circuit for giving his claims precisely the process to which they were due, in route to the trashcan — and for that last chef's kiss of doing so in a summary order, which by its nature denies this bozo even the undeserved dignity of a published and precedential opinion.

[Krayt]

Donald "Lock her up!" Trump richly desreves all that is happening to him, in some cosmic sense. But the opposition massively abuses the power of government to go after him-as-political-opponent*, the surface concerns be damned.

* Much like the Republicans went after biological male Clinton in the 1990s, and the bilogical female Clinton from 2012 to 2016 by converting Fox News into the Benghazi channel.

[Krayt]

Y'all two built both sides of this bed. Now lie in it, while I lament your facetiousness and thank the wisdom of the Founding Fathers to try to limit the ability of the king to sic government on political opponents.

[MatthewSlyfield]

"* Much like the Republicans went after biological male Clinton in the 1990s,"

Since when did Hillary's husband become he who shall not be named?

[David Nieporent]

and for that last chef's kiss of doing so in a summary order, which by its nature denies this bozo even the undeserved dignity of a published and precedential opinion.

And, because Larry Klayman was his lawyer, he tried to cite the fact that the case was unpublished as proof that it was wrong.