Short Circuit: A Roundup of Recent Federal Court Decisions

Building inspectors, historic preservationists, NIMBYs, code enforcement, and the right to make contracts.

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New on the Short Circuit podcast: Atlanta criminal defense attorney Andrew Fleischman joins the panel to talk absolute prosecutorial immunity and why the Fulton County DA's hotly anticipated prosecution of Donald Trump would almost certainly be removed to federal court (where a jury pool would have slightly different leanings than one from Atlanta). Big spoiler: It's because of the War of 1812.

• After a jury convicts Libyan man on four counts for his role in 2012 Benghazi terrorist attack (acquitting on another 14 counts), the district court sentences him to 22 years—despite sentencing guidelines that suggest life plus 10 years. D.C. Circuit: It's okay that the judge didn't sentence him based on the conduct he was acquitted of, but even setting that aside the downward departure from the guidelines is unreasonable. Judge Millett, concurring: It's still kind of crazy we add years to people's sentences for conduct they were acquitted of.
• Before a federal agency issues a rule, it must go through the lengthy notice and comment process. And if an agency wants to repeal a rule it must do the same thing. But what if just before a new president takes office, an agency says it's issuing a final rule that will become final in a few weeks, and the new administration repeals the rule before that time comes (as apparently happened in 2017, 2009, 2001, and 1993—to name just a few). Should the agency have gone through notice and comment before repealing? The majority of a D.C. Circuit panel says yes and characterizes the gov't's argument to the contrary to be that such a rule "exists in a state of superposition like Schrödinger's cat—simultaneously law and not law until the agency publishes or withdraws it."
• Another week, another federal circuit opinion—this time from the D.C. Circuit—affirming the FDA's decision to deny pre-market approval to thousands of vaping products.
• Man out front of the Bronx County Hall of Justice—with a sign that reads "Jury Info" and pamphlets that say "Google Jury Nullification"—is arrested under a statute prohibiting disseminating information within 200 feet of a courthouse "concerning the conduct of a trial being held in such courthouse." After being released, he sues under the First Amendment, winning an injunction in district court. Second Circuit: Well, first of all, the guy has standing. I mean, he was arrested. And the statute's definitely bad as applied to what he was doing and others doing similar stuff. But it probably isn't unconstitutional as a facial matter. Injunction vacated and case remanded. Partial dissent: The statute's so bad it's facially overbroad in a couple of different ways.
• Groups managing nursing homes and assisted living facilities throughout the Northeast clash with unions representing employees at the facilities. Unions allege that the facilities engaged in a slew of unfair labor practices, such as improperly terminating employees and suppressing union communications. The facilities allege that the unions vandalized the facilities, brought on an HHS audit, and engaged in other extortionate behavior amounting to a RICO violation. District court: It's never RICO. Third Circuit: It actually might be here.
• Wise County, Va. prison guards and inmate get into a physical altercation following a dispute over an empty peanut-butter jar. Inmate promptly and repeatedly seeks videos of the encounter. Zoinks! Some of the videos weren't preserved. Spoliation? District court: Don't worry about it. The videos that exist supports the officers' testimony. Fourth Circuit: We're worried about it.
• Following a trial on whether Virginia Beach's system of at-large voting districts violated the Voting Rights Act—but before judgment—the Virginia Assembly outlawed the system. Fourth Circuit: So the case is moot. But since you've done most of the work you would do to challenge the new system, we'll remand and the trial court can decide whether you can amend your complaint. Dissent: The new law didn't fix everything, so the case is not moot.
• For over two months and without a warrant, DHS agents constantly surveil the front and back of Houston home by means of cameras placed on poles outside. A Fourth Amendment violation? The Fifth Circuit says no; anyone strolling by could take in the same view. No need to suppress the evidence; defendant's 18-year sentence for his part in a marijuana-growing operation is affirmed, as is the forfeiture of his home, boat, weapons, and $7.2 mil. (N.B.: For an opposing view, might we recommend this IJ amicus brief?)
• Sabine County, Tex. deputy sheriff conducting welfare check allegedly makes a series of sexually charged comments and sexually assaults woman. She files a complaint (at least the fourth filed against him) for sexual misconduct with the Texas Rangers, he's indicted, and she sues. District court: No constitutional violation here. Sheriff: Qualified immunity. Fifth Circuit: Both of you are very, very wrong.
• "1-1-1!" No, that isn't an emergency number or a Herman Cain campaign promise. It's the breakdown of this Fifth Circuit case brought by disabled students who wanted to enjoin the Texas Attorney General's order forbidding schools from issuing mask mandates. One judge has a lot to say about how masks didn't give the plaintiffs standing, one judge dissents, and one judge oddly only concurs on the facts and the redressability prong of standing.
• Guards at a Louisiana private prison empty a can of pepper spray on a prisoner and repeatedly drop him on his head before taking him to the "Four-Way," the one corner of the prison that cameras don't reach, for two hours. The man later dies of a skull fracture. District court: No one's liable for nothin'. Fifth Circuit (over dissent): We review the facts in the plaintiffs' favor. The officers used excessive force and they worked in concert to cause the injuries that killed this man. Also, both the city and corporation knew about these cruel practices, and they did nothing to stop it, so those claims survive too.
• District court: It's obvious that jail officers shouldn't throw scalding water on detainees, and here are some prior cases (about chaining a prisoner to a post and choking a restrained detainee unconscious and leaving him to die) that clearly establish the law on that. Sixth Circuit (unpublished): And since there's no video or anything that shows otherwise, we have to treat the detainee's allegations as fact. No qualified immunity for this Grayson County, Ky, jail officer.
• Plaintiffs: Columbus, Ohio's Historic Preservation Code lets a small band of private citizens dictate what we do with our own property in arbitrary ways. Sixth Circuit: Actually, Columbus's Historic Preservation Code lets a duly-appointed commission (which may—may!—even include lawyers or bankers) issue totally cool commands that you jerkwads should have just obeyed.
• When Peninsula Township, Mich. wineries challenge local ordinances that restrict wine sales and prohibit hosting weddings, among other things, a local NIMBY group seeks to intervene in the lawsuit. The district court tosses their motion and rules that the ordinances are either unconstitutional or preempted by state law. Sixth Circuit: Not so fast. Even though the township strenuously fought the lawsuit, the NIMBYs' interests (property values, quiet enjoyment of their homes, viability of their farms) are different from the township's (preserving the public fisc). Let them in.
• Can Loyola Chicago undergrad students get a refund on tuition because they were deprived "of in-person instruction and access to on-campus facilities" while COVID-19 had shut everything down? Seventh Circuit: Some of their breach of contract claims are cognizable under Illinois law and may proceed.
• In 2021, the feds put a stop to what had been a regular July 4th fireworks display at Mt. Rushmore, denying South Dakota officials' request for a permit due to COVID-19, wildfire risks, and tribal opposition, among other things. (And in 2022, the feds deny the permit again.) Was the denial arbitrary and capricious? We'd need a time machine to let you do the fireworks now, says the Eighth Circuit, and who's to say whether the permit will be denied in 2023 and why? This case is moot.
• St. Louis man guffaws at rally by then-presidential candidate Donald Trump, leading Trump to command the crowd to "Get him out of here!" He's arrested and charged with disturbing the peace but acquitted at trial. The man then sues the police for arresting him without probable cause. Eighth Circuit: Even if they didn't have actual probable cause, they did have arguable probable cause, and that's enough to give everyone involved qualified immunity.
• Allegation: 7-year-old with bruises and abrasions tells school that her father beat her with a belt. When Des Moines, Iowa detectives come to her home with a social worker, her mother declines to let them in or bring her out. After six minutes of arguing, the mother is arrested for "interference with official acts." Eighth Circuit: The officers could either go get a warrant or look for an exigent circumstance to enter the home without one, but what they couldn't do was arrest her. Her "passive failure to cooperate" did not even create arguable probable cause that she was interfering with an official act. No qualified immunity.
• The Eighth Circuit's said it before, and it's sayin' it again: The St. Louis officers who rounded up scores of allegedly peaceful protestors using a kettling technique are not entitled to qualified immunity for seizing the protestors. But since the plaintiffs did not adequately allege excessive force, QI will preclude those claims. Dissent: The complaint here is almost identical to the last case, where we said no QI for excessive force. So the conclusion should be the same here.
• Allegation: Property owner overhears Honolulu building inspector say that he's causing costly delays to renovation project because the owner hired non-Hawaiian contractors. Unconstitutional interference with his right to make contracts? Could be, says the Ninth Circuit. Even if the delays were justifiable, the right to be free from racial animus in public decisions is clearly established. No qualified immunity. (N.B.: Interested readers might note that the suit proceeds under Section 1981, and that at least 10 other circuits say that Section 1981 provides no private right of action for damages against state actors.)
• Washington law prohibits displaying a weapon in a manner that "warrants alarm for the safety of other persons." So did police have probable cause to arrest a Yakima County man after receiving reports that the man displayed a firearm? Ninth Circuit: Not in an open-carry state like Washington. The officers should have confirmed whether he displayed the weapon threateningly or alarmingly. All evidence found after the arrest (including an IED in the man's car) are suppressed.
• Are Twitter or Facebook pages maintained by public officials public fora under the First Amendment? The Ninth Circuit weighs in on this fast-growing doctrinal area (the answer is "sometimes") but fails to acknowledge the really thorny question: the brewing circuit split over whether they're "public fora" or "public forums."
• Allegation: Man convicted of sex offense at retrial is sentenced to a minimum of 10 years, which he has already served. Which means that under Washington state law, he's to receive a parole hearing within 120 days. But parole board members blow that deadline by nine months. (The hearing ultimately results in his release.) Negligence? False imprisonment? Ninth Circuit: Can't say. Parole board members are quasi-judges and thus protected by absolute immunity.
• Allegation: Man forgets to remove belt, sets off Jackson Hole, Wyo. airport body scanner. TSA agents refuse to let him take off the belt and go through again, insisting instead on a groin pat, which the man equally insists he does not consent to. He's arrested by local police, one of whom says that his stay in jail (which ultimately lasted three hours) is being prolonged because he keeps asking for a lawyer. Tenth Circuit: Drawing all factual inferences in favor of the plaintiff, as we must at this stage of the case, the gov't says that's not why his stay was prolonged. Case dismissed. And furthermore, his claims against the municipality (which he pursued without amending to the district court's satisfaction) are so meritless that $55k sanctions against him and his attorneys are merited. (IJ filed an amicus brief arguing the sanctions aren't merited.)
• Moreover, holds the Tenth Circuit (same case as above), there is no prior case clearly establishing that an officer wrenching a handcuffed person's wrist, injuring it, without provocation and in retaliation for their speech, would "chill a person of ordinary firmness" from continuing to engage in protected speech. (Nor is there such a case now.)
• In response to a shooting spree that injured several children, Ocala, Fla. police chief—along with volunteer police chaplains—help to organize and sponsor a prayer vigil in the town square. Humanists and atheists attend the vigil and then sue, alleging Establishment Clause violations. Eleventh Circuit: And they have standing. But while this case was on appeal the Supreme Court killed the Lemon test that previously governed, so we'll send this back down for reconsideration.

"He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance." Anyway, apropos of nothing, we really can't recommend this longform article on abusive code enforcement by Radley Balko in the Nashville Scene enough. Nashville is bad. Memphis is bad. Lots of other places are bad. It is bad to eat out people's substance.

Comments

[BillyG]

I’m gonna agree with Judge Millett. If you’re sentencing someone for something they were acquitted of, you’re sentencing them for acts not in evidence. May as well sentence people without a conviction.

[DaivdBehar]

Sixth Circuit: Actually, Columbus's Historic Preservation Code lets a duly-appointed commission (which may—may!—even include lawyers or bankers) issue totally cool commands that you jerkwads should have just obeyed.

That makes the value of such homes zero, and unsellable. The Commission needs to compensate the owners, and own those properties.

[Noscitur a sociis]

I have my own doubts about the practice, but I'm not sure this is really engaging with the issue. Obviously no one thinks that a judge should increase a sentence for things that the judge thinks didn't happen (much less things that have no evidentiary support at all).

[Brett Bellmore]

Yeah, but if the JURY thinks it didn't happen, it's not supposed to matter that the judge does.

[mse326]

Acquitted doesn't mean the just doesn't think it happened, it means it wasn't proved beyond a reasonable doubt.

But in sentencing things don't have to be proven beyond a reasonable doubt to be considered as long as it doesn't increase the min or max that is allowed. Just like acquitted conduct can still be the subject of a civil suit that can be won.

Sentencing on acquitted conduct is no different than the judge considering a history of figthts a school to determine that a person needs more time or anger management.

[ducksalad]

Seems to me you and EscherEnigma are trying to have it both ways.

Was the judge's original sentence in the allowed range for the proven conduct or not? If yes, what is the problem with the 22 year sentence?

If the judge is not allowed to do 22 years because of the acquited alleged conduct, then clearly the min and max sentence have changed.

Which is it?

[Sarcastr0]

It gets re-proven.

The judge gets to re-evaluate the conduct by a preponderance standard, which may be satisfied even if reasonable doubt is not.

I forget which case I read in evidence on that, but I recall I thought the dissent had the better of it.

[TwelveInchPianist]

"It gets re-proven."

So it gets rejected at trial under the beyond a reasonable doubt standard once.

And proven again under the preponderance standard a second time.

Now I'm not a mathematician, but I could swear that that adds up to twice.

And IANAL, but I could swear that there's a limit to how many times you can place someone in jeopardy, be it once, twice, thrice, etc.

And I don't that limit says anything about quanta of proof, etc.

[Noscitur a sociis]

Was the judge's original sentence in the allowed range for the proven conduct or not? If yes, what is the problem with the 22 year sentence?

To be clear, the holding in this case is very much that this was an unreasonably lenient sentence even without consideration of the acquitted conduct:

The district court attributed part of the variance to avoiding any reliance on charged conduct for which the jury had acquitted Khatallah. The government does not dispute that the district court was permitted to discount acquitted conduct, and so we take that as given in this case. But in sentencing Khatallah to just twelve years for the two support-of-terrorism counts and the property destruction count, the district court did not—and could not on this record—sufficiently justify its additional variance so far below the sentencing range that would have been appropriate even without any consideration of acquitted conduct. It must be remembered that Khatallah was convicted of two counts of supporting terrorism and one count of attacking a United States Mission. Given the gravity of such an assault on an American diplomatic facility and the district court’s own recognition of the vital need to deter such crimes, the district court’s weighing of the Section 3553(a) factors could not have supported such a stark additional variance beyond discounting acquitted conduct. For that reason, we reverse and remand for resentencing....

The problem is that the district court’s sentence went far lower than discounting acquitted conduct alone could support when it imposed a total sentence of just twelve years for the terrorism-support and property-destruction convictions. Given the gap between the acquitted-conduct reduction and the twelve-year sentence imposed, the district court needed to provide reasons justifying the further steep reduction in Khatallah’s sentence. Because the district court did not do so—and could not have done so on this record—we reverse the sentence and remand for a new sentencing.

[ducksalad]

Noscitur, Mse: Thanks, I did not read that part and I see that you are right.

[mse326]

Read again. The court said there was no problem not considering acquitted conduct. He still did a downward departure from what the guidelines call for, for his convicted conduct

[Brett Bellmore]

Yes, I'm well aware that judges have set out to minimize the power of the jury, by usurping for themselves the power to sentence on the basis of things the jury acquitted the defendant for, so long as the jury convicts on anything at all.

I don't have to pretend that usurpation is legitimate.

[Sarcastr0]

The judiciary didn't usurp anything except your expectations, Brett.

[TwelveInchPianist]

It's not just Brett's expectations.

Lots of us expect the jury to have the final word when it comes to acquittals.

[jimc5499]

Tell that to OJ Simpson. I'm not saying he was innocent, all I'm saying is that he was acquitted. The public outrage and the prosecutors being political animals didn't bode well for him at the Civil Trial.

[David Nieporent]

Brett doesn't understand the issue. Congress says that the penalty for, e.g., robbing a bank is 5 to 30 years. That means that if you're convicted of robbing a bank, the judge has the choice of sentencing you to 5 years, 12½ years, 22 years, 30 years. Or anything in between. How does the judge decide?

Possibilities:

1) Judge must sentence to 5 years, unless you were convicted of something else, in that trial or in another trial.
2) Judge can take into account all sorts of factors, including your character, other things you've done in your life, good or bad (which may or not be criminal), things there's evidence you've done but have not been convicted of, etc.
3) Judge can take into account all sorts of factors, including your character, other things you've done in your life, good or bad (which may or not be criminal), things there's evidence you've done but have not been convicted of, etc. — everything except charges you've been acquitted of.
4) Congress can't do that. It must specify an exact penalty and not leave any discretion to the judge.
5) ???

[Brett Bellmore]

I understand the issue quite well. I'd go with curtain number 3. Being acquitted HAS TO mean that you can't be punished for the conduct you were acquitted of, or what was the point of the jury acquitting you?

Allowing an extremely wide range of penalties, and then permitting the judge to take into account conduct you've been acquitted of by a jury? It's just a work around, a way they can violate the double jeopardy clause.

[TwelveInchPianist]

Acquitted conduct definitely needs to be off-limits, but there are still problems with #3 due-process wise.

Imagine a judge at sentencing "Well, Congress says I can sentence you to whatever I think is just for speeding in a national park. Normally I'd give you a $300 dollar fine, but the record says you've had a legal abortion (or legally owned a gun, or whatever) so I'm going to give you 10 years.

[Brett Bellmore]

A fair point.

Honestly, I'd prefer a fairly strict set of sentencing guidelines with nothing acquitted being admissible in making the calculations.

[EscherEnigma]

Meh. Judges use "acts not in evidence" all the time. "Character" is a popular one. How much money daddy has is another.

If you want judges to ignore everything not in evidence, we should probably do away with sentencing "guidelines" and make a strict flow-chart that does not allow judgement or deviation.

[ducksalad]

The part that bothered me about this case, not mentioned here but in another VC post, was the stipulations.

The government agreed to some stipulations before the trial. Furthermore, they agreed to these because they were having defense evidence suppressed on national security grounds.

Then the prosecutor denigrated the stipulations in front the jury, specifically asking the jury not to believe them. How can that possibly be acceptable?

[John F. Carr]

The underlying problem is once you trigger the "terrorism" sentencing guidelines you are supposed to go to prison for most or all of your life.

[Rev. Arthur L. Kirkland]

Regarding the Eighth Circuit case:

1) Trenisha Webster seems a worthless asshole.

2. Robert Rushing seems a worthless asshole.

3. The authorities should have obtained the warrant, arrested both adults on the spot if the child exhibiting bruising consistent with the report, and commenced efforts to remove that child from the worthless assholes' custody.

4. I hope that child overcomes the handicap of having character-deprived losers for parents, and recognizes that the less contact had with such abusive losers the better life will be, with no expiration date.

[Rev. Arthur L. Kirkland]

Several Eighth Circuit decisions are presented. I referred to the child-beating case.

[ducksalad]

Agreed with (1) through (4), but you left off (5)

5. The officer that violated the 4th Amendment should also be charged with a crime, arrested and booked, and if convicted suffer some tangible consequences. Doesn't have to be extremely severe, but enough to send the message that violating the 4th Amendment is a crime. How about for the first offense, a few months supervised criminal probation, and an agreement to not work as a police officer until completing the probation.

Is that reasonable?

[Rev. Arthur L. Kirkland]

Not arrested, at least not in this circumstance.

Trained, educated, and -- in severe enough consequences, with repetition considered -- subjected to disciplinary action or criminal exposure, sure.

But this is not an egregious case, as described. The only egregiousness here, as described, involved the child-beating, child-endangering lowlifes.

[Noscitur a sociis]

Doesn't have to be extremely severe, but enough to send the message that violating the 4th Amendment is a crime.

But violating the Fourth Amendment, standing alone, isn't a crime. So arresting the officer on that basis would itself be a Fourth Amendment violation.

[ducksalad]

Well, I didn't mean that the charge should literally be "4th Amendment, violation of". Although I would like to see such a law.

Aren't there plenty of other laws that could be used?
Just throwing some stuff out:
-Federal: Deprivation of rights under color of law
-State: Official oppression (that's what they call it in TX)
-State: Assault, false arrest, forcible breaking and entering, etc.

[Noscitur a sociis]

Federal: Deprivation of rights under color of law

That statute (18 U.S.C. § 242) requires proof that the defendant acted willfully—that is, that they knew their conduct was unlawful. (Actually knew, not could or should have known.) I don't see anything in this case that would support such a claim.

I don't have adequate knowledge of Iowa criminal law to opine on its potential applicability.

[TwelveInchPianist]

"that is, that they knew their conduct was unlawful."

You don't think that she knew that her conduct was unlawful?

I'm sure you could get testimony that she had been trained in the 4A, etc.

[Noscitur a sociis]

Yes, I think she believed she had probable cause to believe that the mother had committed a crime. I certainly don't see how you'd prove beyond a reasonable doubt that she didn't.

[Ben of Houston]

What I don't get is how many of these cases rely on officers just being too lazy to get a warrant, even when they had probable cause to do so. The Houston case is just egregious. They went to great expense to set up the surveillance and didn't even bother to get a warrant?

[Noscitur a sociis]

1. Why should they get a warrant if (as the court correctly concluded) they don't have to?

2. What do you think was the probable cause that would support issuing a warrant prior to setting up the cameras?

[apedad]

Re: 2.

Then don’t set up cameras!

[SKofNJ]

You set up a camera because you have a reasonable suspicion of criminality and your job is to investigate and stop crime.

[apedad]

Dude, I’m a retired federal agent who’s done it all: wiretaps, tech surveillance (movement sensors, photo) , mobile surveillance (including “movie-style” vehicle trackers), changing outfits, etc.

[Noscitur a sociis]

And you're claiming that you never conducted surveillance without a search warrant?

[Noscitur a sociis]

I don't mean this offensively, but for someone who claims to have a background in law enforcement you seem remarkably clueless about how criminal investigations work.

In some circumstances, the police acquire probable cause as soon as they learn there's something to investigate (for instance, if they happen to be present and see someone committing a crime). In most circumstances (and virtually all federal investigations), they don't: in order to establish probable cause, they need to investigate using methods that don't require probable cause. Methods like conducting surveillance of areas that are visible to the public.

[MatthewSlyfield]

"Methods like conducting surveillance of areas that are visible to the public."

Mounting a camera on a utility pole above eye level so it can see past a privacy fence or in windows a person could not see in to standing on the ground next to the pole is not conducting surveillance of areas that are visible to the public.

[Noscitur a sociis]

Be that as it may, it has no bearing on a case like this, where the defendant himself conceded that a person on the street would have been able to see everything that was captured on camera. (Take a look at the government's brief if you have PACER - there are screenshots that make it pretty clear that this is indeed the case.)

[ducksalad]

OK, let's say the rule for warrantless stuff is "could a person on the street do it". Not a bad rule.

Sure, I could drive or walk by someone's house and take a picture. Could have a security camera on my own property and not have to take any special precautions to keep the neighbor's house out of the field of view.

Now there may or may not be a law specifically against me and some friends standing on the sidewalk in shifts, 24/7, pointing a camera at someone's house. Regardless, if we actually did it, I'm dead certain that cops would show up eventually, there would be a polite discussion, and it would end with us leaving either on our own or in the patrol car.

Perhaps if it was the house of someone famous, and it was a reporter with all the paraphernalia, or some group protesting with signs, they could talk their way out of it. But ordinary people outside an ordinary house? Nah, the cops would find some basis to make us move on (unless they also disliked our target) and I think you know that.

[StellaLink_the dog]

"I'm dead certain that cops would show up eventually, there would be a polite discussion, and it would end with us leaving either on our own or in the patrol car. " Unless there is probably cause to implicate the observers in some sort of crime, there's nothing the police can do. Is there a real claim of harassment or stalking or trespass or some criminal behavior? If not, the cops can't make you move on. You tube is full of such incidents where some wankers with cameras target some business or public facility for surveillance. Cops show up and almost always end up having to admit that they can't do anything if there is no identifiable crime. In my opinion, police are too lenient in enforcing trespassing laws, but it's not my decision.

[Rossami]

re: 1 - yes and no. Yes, you have a point that they don't need a warrant if the court is going to say they don't need one anyway. No, the court did not correctly decide that. The court should have required a warrant. Putting 24x7 cameras up on poles is a gross over-extension of the 'plain view' standard.

[Krayt]

Could a person stand outside your fence staring in your window 24/7 and get away with it?

[Rossami]

Generally, no. But even if I couldn't make some sort of harassment or intrusion of privacy charge stick, the practical reality is that the putting a live cop on duty at the top of the pole for 24 hours a day is a practical limitation that protects rights. "Outsourcing" that surveillance to technology erodes that inherent protection and invalidates the assumptions of balance that made the original 'plain view' doctrine acceptable.

[Noscitur a sociis]

"Outsourcing" that surveillance to technology erodes that inherent protection and invalidates the assumptions of balance that made the original 'plain view' doctrine acceptable.

What makes you say that the doctrine is based on "assumptions of balance" as opposed the simple principle that you don't have a legal entitlement to make people close their eyes when they pass by your property? See, e.g.,

My neighbors have a (24/7) security camera that captures my two sides of my house, including my front door. Do I have some entitlement to stop them from sharing what the see with the police?

[Rossami]

Legal entitlement? No, not under current precedent. Moral right? Yes. You have a reasonable expectation of privacy from 24x7 surveillance even from your neighbors.

[StellaLink_the dog]

" You have a reasonable expectation of privacy from 24x7 surveillance even from your neighbors."

Bullshit.

[Ben of Houston]

I doubt that there would be reason to set up that sort of surveillance, with all the associated expense, if you didn't have sufficient probable cause. Warrants do not exactly require a high burden of proof

[apedad]

Private, i.e., For Profit, prisons have to be outlawed.

[apedad]

I am OK if it’s a state/federal prison and contractors are operating it.

But even then it has to have direct, government, onsite, oversight.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes, prft is a four letter word which taints everything.

So my question for you is: What prft has made government so incompetent and malicious?

[apedad]

First of all I’ve stated on these pages many times that I favor capitalism.

Capitalism allows mobility for workers and potential job promotions , encourages initiative, and allows even small investors to join the “market.”

And of course there are the downsides: worker abuse, incentive to pollute or to commit fraud in order to increase profit, etc.

Prisons though are part of the govt’s law-enforcement authority and it must remain in government channels.

[apedad]

And did you miss the part where I said I’m all for contractors operating the prisons?

You know contractors, i.e., FOR PROFIT COMPANIES.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You must be one of those people who claim Nazis weren't socialists because the government did not own the means of production, it only controlled them.

No distinction worth a unicorn fart. Prft is prft.

[EscherEnigma]

Not going to happen any time soon.

But can we at least outlaw those contracts that obligates the state to provide a certain amount of slave labor prisoners?

[Rossami]

Why?

Yes, there are some examples of private prisons doing awful, immoral and illegal things. But there are also many, many example examples of government-owned prisons doing things just as bad and often far worse.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Yes, but because there is no prft, those don't count.

[Noscitur a sociis]

Is this just an incidental observation? Or do you think there was some causal connection between private ownership of the prison in the case here and the conduct alleged in the case?

[Michael P]

Why is that Eighth Circuit fireworks case not a textbook example of "capable of repetition, yet evading review"? How far in advance will the feds respond to an application for such a permit?

[Noscitur a sociis]

I know! They really should have addressed that somewhere (maybe around, say, page 4 or 5). They could have written something like

Nor is the controversy live because South Dakota will keep trying for a permit. Even assuming that this deny-and-sue cycle is destined to repeat itself, nothing we say today can turn back the clock to 2021. See id. at 805–06. As we said just two years ago in a nearly identical scenario, “[o]pining about the standards [an agency] should apply to [an out-of-date] application would amount to an advisory opinion.” Id. at 806.

Not so, South Dakota argues, because this is a fast-burning challenge that is capable of repetition yet evading review. See Fed. Election Comm'n v. Wis. Right to Life, Inc., 551 U.S. 449, 462, 127 S.Ct. 2652, 168 L.Ed.2d 329 (2007) (explaining that such cases fall “within [an] established exception to mootness”). An otherwise-moot case is still justiciable if “(1) there [is] a reasonable expectation that the same complaining party will be subjected to the same action again[;] and (2) the challenged action [is] of a duration too short to be fully litigated before becoming moot.” Iowa Prot. & Advoc. Servs. v. Tanager, Inc., 427 F.3d 541, 544 (8th Cir. 2005). This limited exception applies only if South Dakota can “show[ ] the presence of both requirements.” Abdurrahman v. Dayton, 903 F.3d 813, 817 (8th Cir. 2018).

Although we are skeptical that South Dakota's arbitrary-and-capricious challenge can satisfy either one, the subject-to-the-same-action requirement poses an obvious difficulty. Even though South Dakota has established a “reasonable expectation” that it will regularly apply for a fireworks permit, the circumstances are likely to be different each time. See Missouri ex rel. Nixon v. Craig, 163 F.3d 482, 485 (8th Cir. 1998) (explaining that it is not enough that the plaintiffs “may be parties to the same sort of dispute in the future” (brackets and citation omitted)). Last year, the barriers were the then-current state of COVID-19, an ongoing construction project, tribal opposition around a yet-to-be-completed survey, and fire and water-contamination risks. In the future, it may be some combination of these reasons, or none of them at all.

In arbitrary-and-capricious review, even small factual differences can matter. Reviewing agency action requires us to evaluate the “contemporaneous explanation in light of the existing administrative record.” Dep't of Com. v. New York, ––– U.S. ––––, 139 S. Ct. 2551, 2573, 204 L.Ed.2d 978 (2019) (emphases added). Keeping in mind that agency action is typically a snapshot in time, the “same controversy” will recur only if: (1) the Park Service again denies a fireworks permit; (2) the administrative record is “materially similar”; and (3) the Park Service does not change its reasoning. Wis. Right to Life, 551 U.S. at 463, 127 S.Ct. 2652 (emphasis added); see Craig, 163 F.3d at 485. Far from convincing us that this unlikely scenario is likely to repeat itself, South Dakota has not even suggested it might. See Whitfield v. Thurston, 3 F.4th 1045, 1047 (8th Cir. 2021) (explaining that the “party invoking the exception ... bears the burden of demonstrating that it applies”).

Ah well.

[Michael P]

So, making a prolonged excuse to allow arbitrary and capricious actions to repeat because they might be trivially different in the future.

[Brett Bellmore]

"Drawing all factual inferences in favor of the plaintiff, as we must at this stage of the case, the gov't says that's not why his stay was prolonged."

So? Maybe the gov't is lying.

[Noscitur a sociis]

He's being ironic, of course, but the description is a bit misleading: the actual reasoning is that the complaint failed to allege that there was anything illegal about the three-hour detention.

[MatthewSlyfield]

+10 points to the DC circuit for the Schrödinger's cat reference.

[Armchair Lawyer]

Oyy.... You can't even have a vigil in response to children being injured during a shooting without being sued? That's ridiculous. It's gotten out of control...

[Bored Lawyer]

before taking him to the "Four-Way," the one corner of the prison that cameras don't reach, for two hours.

That alone should raise deep suspicions about their behavior, and certainly preclude summary judgment.

[Davedave]

That such a place is known to exist is obviously a crime. Police won't prosecute their own, of course, and even private jail employees are close enough to avoid arrest.

We are literally talking about an elaborate conspiracy to torture helpless inmates. It goes all the way up to upper management. Jail time for half a dozen people or more would be inevitable if the police were actually doing their job.

[John F. Carr]

I think Judge Carnes enjoyed writing about the Lemon test and its recent or long ago demise.

[ReaderY]

I think the Washington statute making it a crime when a gun is handled in a manner that would cause a reasonable person to fear bears som similarities to common-law style sexual morals statutes that prohibitted indecency, “lewd and lascivious” fornication, crimes against nature, and similar things. It was obvious to the people who supported these sort of laws what was meant. A North Carolina court upheld its crime against nature statute in the late 1970s on grounds that persons of ordinary intelligence readily understand that a consensual fellatio between a man and a woman is considered a crime against nature. But it clearly wasn’t so obvious to people who opposed these laws, and one of the earlier grounds for striking them down in more liberal states was vagueness.

There is probably a similar class of cultures here. People opposed to open carry might well feel frightened at the mere sight of a gun, while people well immersed in gun culture obviously wouldn’t.

The solution might be what a number of states did with their morals laws, develop a body of caselaw clarifying what is meant in common-law fashion rather than simply telling a jury to convict if an ordinary person would feel fear and roll the dice, with the outcome likely heavily dependent on the composition of the jury.

[ReaderY]

Sorry, a similar clash of cultures.

[ReaderY]

Although it may be dicta, Kennedy v. Bremington School district appears to question the sorts of cases the 11th Circuit relied on to find standing. It said the Establishment Clause does not confer a “hecklers’s veto” whereby people can remove religious activity from the public sphere merely because they find it uncomfortable. And it strongly suggested that this sort of discomfort with other people being religious in public around one is, if not an out-and-out animosity to which the court’s animosity jurisprudence should be applied, at least not sufficient to confer standing.

I oppose the whole business of animosity jurosprudence in part because I see it as little more than a vehicle to let partisans in political disputes sic the constitution against their political enemies, which I see as profoundly outside the judicial role. If you firmly believe in the cause, it’s easy to see those who oppose the cause as nothing but a bunch of haters.

I am more sympathetic to the idea that simply feeling incomfortable with other people practicing religion in public is an insufficient injury to confer standing. Otherwise, why wouldn’t merely being uncomfortable with the presence of a law on the books be sufficient to confer standing?