Short Circuit: A Roundup of Recent Federal Court Decisions

Measles, tough weeds, and a COVID hoax.

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

SCOTUSblog petition of the week: Does the Fourteenth Amendment require meaningful review of restrictions on the right to engage in a common occupation? IJ says not only yes, but also: oh my goodness gracious meaningful review is such a reasonable ask. Perhaps after you read the eminently readable petition you will agree. Click here for more on the case.

• A member of the Fleet Marine Corps Reserve sexually assaults another Marine's wife while moonlighting as a bartender in Japan. He's court-martialed and sentenced to 10 months' confinement and a dishonorable discharge. But wait! The Constitution says Congress may only place "the land and naval Forces" under the jurisdiction of a court-martial, but membership in the Fleet Marine Reserve, though not formal retirement, "is a de facto retirement status." Does that count? D.C. Circuit: Reservists can still be ordered back into service; that's enough for military jurisdiction. Dissent: That may come as a surprise to the nation's two million fully retired service members, who are also subject to recall.
• High-frequency trading occurs at the speed of light and every microsecond counts. Which is why a securities exchange put up a "speedbump" of 350 microseconds (1/11th the blink of an eye) to try to slow down "latency arbitrage" among its traders. Was the SEC's "D-Limit order" approving the speedbump arbitrary and capricious? D.C. Circuit: No. The order's fine.
• There are over 800k drones registered with the FAA, most of which are for recreational use. Due to worries of these little airplanes bumping into larger aircraft and helicopters—and also just falling out of the sky—Congress asked the FAA to develop standards for identifying them. The resulting rule requires all drones to have a "Remote ID" emitted via radio signal. Does the rule allow a warrantless search in violation of the Fourth Amendment? D.C. Circuit: This facial challenge fails. Flying a drone ain't private, the radio signal can only be detected in close proximity to one, and the ID is anonymous. The rule is ok under the APA as well.
• After measles outbreaks in low-vax-rate communities, New York officials ditch religious exemption to vaccine requirement for school children and also tighten the standards for a medical exemption (a doctor's mere say-so will no longer suffice). Second Circuit: And that violates neither the Constitution's substantive due process protections nor a federal law that prohibits discrimination against the disabled. And anyway, kids only need to comply "if they wish to attend a school in the State," so what's the big deal?
• The Privileges and Immunities Clause of Article IV of the Constitution means that states can't discriminate against nonresidents who want to pursue an occupation or acquire property in the state. But surely, says Prince George's County, Md., that doesn't mean we can't discriminate in favor of gov't employees who work in the county, right? Fourth Circuit: Of course it means that. What else would it mean? Come on, guys.
• South Carolina man experienced a childhood of appalling abuse and trauma, repeatedly attempted suicide, and underwent multiple in-patient stays in psychiatric hospitals before committing a string of horrific crimes. Sentencing court: There's no mitigating evidence that he has a severe mental illness, so death penalty. Fourth Circuit: Uh, even under the most deferential standard out there (AEDPA), "the record plainly and unequivocally belies this conclusion." Reversed. Dissent: This is the most deferential standard out there, and since fair-minded jurists can disagree about the correctness of the sentencing court's decision, we must affirm.
• Man pleads guilty to committing a crime of violence while having failed to register as a sex offender (subject to his right to appeal the constitutionality of the law). In exchange, the gov't drops two other counts on which he'd been indicted. He appeals, wins. Feds: But how 'bout them other counts? The agreement never said we couldn't re-prosecute. Fourth Circuit: Not a chance.
• Allegation: After newly elected Castle Hills, Tex. councilwoman (a septuagenarian and the first-ever Hispanic woman to serve) criticized the city manager, his buddies (the mayor, the police chief, and a specially deputized private attorney) get her jailed for bogus violation of a law that is never used to punish the harmless, ordinary conduct they accused her of. Unlawful retaliation? The dissent "makes a forceful case for why the Constitution ought to provide a claim here," says the Fifth Circuit, but no. (This is an IJ case.)
• Allegation: Male Dallas jail officers can get full weekends off, whereas female officers can only get one weekend day and one weekday off. Unlawful discrimination on the basis of sex? Fifth Circuit: Circuit precedent requires plaintiffs to show they've suffered an adverse employment action to proceed under Title VII of the Civil Rights Act of 1964 or its state-law analogue, and these plaintiffs haven't been fired, demoted, transferred, etc. We should probably go en banc about it.
• In early April 2020, a San Antonio, Tex. jokester posts on Facebook that he's paid his COVID-infected acquaintance to lick items in two grocery stores. Turns out it was a hoax, but the ensuing federal charges and 15-month prison sentence are very real. Fifth Circuit: Conviction affirmed. The jokester is covered by the federal statute criminalizing hoaxes about biological weapons. And that statute's constitutional.
• In which the Fifth Circuit's soon-to-be-retired Judge Costa does his level best to enthrall the reader in a $1.5 bil tax dispute between Exxon and the IRS.
• After discovering she's in a same-sex union, Catholic high school in Indianapolis lets a long-time guidance counselor go. Unlawful discrimination in violation of (among other things) the Civil Rights Act of 1964? The Seventh Circuit says no; the First Amendment permits religious employers to hire and fire ministers as they choose. Easterbrook, J., concurring: To call her a minister is "a stretch," but why are we even talking about the Constitution when, properly read, the 1964 CRA doesn't apply to religious institutions at all?
• Following the Jacob Blake shooting, a couple participating in Madison, Wisc. riots poured gasoline along the front of an office building and lit it on fire. They're convicted under the federal arson statute. Seventh Circuit: And Congress did not overstep its Commerce Clause authority in enacting the law.
• Allegation: Aberdeen, S.D. elementary-school teacher routinely abused her special-education students, including locking one child in a small room 274 times over a four-month period, throwing another into the pool after he had declined to swim, and forcibly stripping a third child and putting on his bathing suit after he had refused. Teacher: Qualified immunity! Eighth Circuit: Not on the Fourth Amendment claims.
• The feds charge South Dakota woman with a slate of counts relating to a brutal assault but then reach a plea under which she agrees to plead guilty to one count of robbery in exchange for the government's dismissing the remaining four counts. District court: Not so fast. She did some really heinous stuff and deserves to have the book thrown at her. Plea agreement rejected. Gov't: Okay, well, then we'll move to voluntarily dismiss those extra counts. District court: Nope. Eighth Circuit: The district court was way out of line in second-guessing the government's decision to dismiss some of the counts. Case remanded for the district court to dismiss those counts (where, presumably, the court will have broad discretion to fire the woman into the sun at sentencing if and when she is convicted on the one remaining count).
• On his own time, private citizen who is also a Phoenix, Ariz. police officer circulates content on Facebook that denigrates Muslims. Years later, some muckrakers publicize his posts, and the police dept. determines that discipline (ranging from an unpaid 40-hour suspension to termination) may be appropriate. Unconstitutional retaliation over his protected speech? The Ninth Circuit says that seems unlikely, but the district court should not have dismissed on the grounds that it did. (His challenge to the dept.'s social media policy was properly dismissed, however also revived in part.)
• The drug company Mylan, maker of the EpiPen, has a near-monopoly on the market for epinephrine auto-injectors used to treat anaphylaxis. Competitor Sanofi, whose product is designed to more comfortably fit in a pocket, files an antitrust lawsuit alleging unfair competition. Mylan's deals with insurance formularies are so good they've been shut out of the market! Tenth Circuit: No liability. "'Competition is a tough weed, not a delicate flower.' – George Stigler"
• Allegation: Guard assaults restrained inmate at Florence, Colo. federal pen out of view of cameras. Can the inmate sue the guard for excessive force in violation of the Eighth Amendment? The Tenth Circuit says no, there's no Constitution in federal prison (unless the claim is for deliberate indifference to a medical need—and maybe not even then). Inmates should file a grievance with the feds' Administrative Remedy Program.
• Courts have blessed the use of surprise, warrantless inspections to enforce regulations of closely regulated businesses like underground mines and commercial trucks, but what about strip clubs? Eleventh Circuit: Yeah, those, too.
• If you're arrested in Cullman County, Ala., for anything other than capital murder, you can be released immediately upon posting bail, unless the sheriff requests a hearing and proves by clear and convincing evidence that you're a "significant flight risk or a danger to the community." But if you're broke, you have to wait for a hearing before a judge, who sets bail with no particular standard of proof. A due process violation? Eleventh Circuit: There are enough safeguards baked into the system for indigent detainees. Dissent: The district court found the system imposed de facto pretrial detention on indigent detainees, and we can't just ignore that finding.
• Tampa, Fla. man brings state law claims against officers who allegedly used excessive force and unreasonably arrested him while executing a search warrant related to animal abuse. (He says his dog had cancer, which caused sores, and was on palliative care.) Are the officers entitled to sovereign immunity under Florida law? Eleventh Circuit: Because there's no plausible allegation that the officers acted with actual malice (which is different from acting without probable cause), they sure are immune.
• Jessica and Jesse Swinger, a married couple who are not swingers, create advertisement for Miami swingers' club using the likenesses of 32 models without consent. A jury awards the models $12.5k to $65k each. Eleventh Circuit: Not enough evidence two of the club's managers were involved. Reversed as to them.
• And in en banc news, the Eleventh Circuit will not reconsider its decision that "incentive payments" made to named plaintiffs in class actions are prohibited by two Supreme Court decisions published in the 1880s, decades before the enactment of Fed. R. Civ. P. 23 (which governs class actions). Four judges dissent from denial, while Judge Newsom writes a "concurral" about why he will not be writing a concurral.

In 2009, a tree fell on Sarah Hohenberg's stately, historic home in Memphis, rendering it uninhabitable. When her insurance company refused to pay for the damage, she took them to court. But while that was pending, her neighbors sued her in Environmental Court—sort of a Star Chamber for code enforcement—a process that bankrupted her, rendered her homeless, nearly resulted in her arrest, and completely ruined her life. (And even after a forced sale of the house in bankruptcy, as of 2021 the house was still in disrepair.) This week, a federal district court took a hard look at the Environmental Court's lack of procedural safeguards (there are no records of proceedings; testimony isn't authenticated; witnesses don't swear to be truthful; people get sent to jail for being unable to afford repairs) and decided to dismiss the case on Rooker-Feldman grounds. Click here to learn more. And then maybe have a gander at Radley Balko's superb journalism on Nashville's similarly constituted Environmental Court.

Comments

[Vandalia]

I can say with complete confidence that "two million retired service members" all know they can be recalled to active duty and can be court martialed.

That was common knowledge in the military. In the same way that it was common knowledge that if you locked a Private in a padded room with two ball-bearings, in fifteen minutes he will manage to lose one and break the other.

[Flight-ER-Doc]

I sure as hell know it.

[DaivdBehar]

Hey pro-criminal lawyer scumbags, the correct answer.

https://twitter.com/ArifRetd/status/1553292500344995840

[DaivdBehar]

We believe secluding A.A. in the little room and B.B. in the calm-down corner constituted seizures. In Couture, the Tenth Circuit noted that a child “was certainly subject to greater restrictions than are most students” because he had been “at times physically carried into” a small “timeout room, where teachers shut and barricaded the door,” while his “requests for release from the room were consistently denied.” Id.

OK, scumbag vile, toxic lawyers on the bench, you piece of filth. Here is what we are going to do. When child becomes upset, we are bringing her over to your chambers, your home, or wherever you are. You can show us how to help her.

[DaivdBehar]

Most of this week's decisions were wildly wrongheaded, just crazy.

[Archibald Tuttle]

My son is retired ANG. He says, "While this is true, they would only be recalled for legal reasons, such as to stand trial or testify as a witness." That's not the same as active duty.

[Absaroka]

My Dad was in what sounds like the Army's version of Fleet Marine Reserve - he served 20 some years, got retirement pay, and so on. And he got periodic letters informing him of where to report when The Balloon Went Up.

From the decision, that's the part that mattered to the court - the military could decide to involuntarily recall you at their discretion. For Dad, that status lasted until age 65, IIRC.

He had bypass surgery at 64 and wrote the army a letter suggesting they might want to take him off the list of people to recall for the next war, and got back a nastygram informing him that that sort of malingering would not be tolerated; he was fully subject to recall until 65.

(I recall one of the letters changed his WW3 duty station to Ft Dix. When the mushroom clouds sprouted, he was to report there forthwith without waiting for further orders. We lived several states away. I had visions of him pushing his shopping cart through the wasteland on his way to Ft. Dix.)

[Rossami]

Recalled, yes. Court martialed for things done since retirement, no.

Love the "private with 2 ball bearings", by the way. Too true.

[KenveeB]

Is the question whether they know they can be recalled (obviously they do) or know that being subject to recall means they can be court-martialed for all the things they're doing now when they're not actually in any military service (I seriously doubt it)?

[Krychek_2]

The Supreme Court needs to drive a stake through the heart of Rooker Feldman once and for all.

[Jerry B.]

“And anyway, kids only need to comply "if they wish to attend a school in the State," so what's the big deal?”

So compulsory school attendance isn’t a thin in New York?

[Jerry B.]

“Thing”

You know, like an edit function here isn’t.

[Davedave]

Aren't there homeschooling provisions, other non-state-provided schools, etc? It's not compulsory to send a kid to a particular kind of school.

[Jerry B.]

But they still have to go to a school. And if they go to any school in New York State for more than 14 days, as I understand the law, they have to be vaccinated.

[Vandalia]

With respect to the Tiffany Bernard case, should the judge have been able to refuse the prosecution's motion to dismiss the charges against her since the dismissal was based solely on her gender?

The judge found "she was by far the most culpable", was the one who "set the plan in motion", but she - the female - was the only one who was offered a plea agreement, and when the judge refused to accept the plea agreement, the federal prosecutor dismissed the remaining counts.

It seems perfectly clear the prosecutor's decision was based solely on improper motives: her gender. We all know that women are rarely prosecuted, rarely convicted, and rarely receive a custodial sentence even when all else is equal.

[Soronel Haetir]

That Dallas jail case is nuts, that somehow conditions of employment can't count as sexual discrimination even when those conditions vary explicitly on the basis of sex.

[Armchair Lawyer]

It's a little odd.

My first thought was that there were limited female staff, and there was a requirement/need of some sort that a female officer be present for female inmates. That's not uncommon. And that this policy was designed so there wouldn't be a time when all the female staff had taken off. That doesn't seem to be the case necessarily though.

Instead we have one line. "It would be unsafe for all the men to be off during the week and that it was safer for the men to be off on the weekends."

It's a little unclear what that means, but it seems to imply that there would be times when there wouldn't be any male staff present at the jail. Taken in the light most benefiting sergeant, there would be rare occasions where having an individual with more physical strength was needed in the pursuit of the profession, and not having more physical strength present would lead to a potential danger.

[Krayt]

What about courts only allowing strength tests sufficient to reasonably do the job, no more than that?

Doesn't this suggest the tests are insufficient?

Well, lawyers have to get money into their pockets some way. Let them fight it out as to which policy is the more profitable overall: suing over sex discrimination because women hirelings aren't strong enough and have to work weekends, or suing over sex discrimination because strength tests are too formidable.

[Armchair Lawyer]

Again, speaking from the point of view that puts the best light on the sergeant.

It's a bit of a difficult case. Most of the time...nearly all the time...the excess strength requirements aren't needed. And you don't want to get rid of good cops or jail officials, they're hard enough to find as it is.

But that 0.1% of the time when it would be extremely useful to have a larger, stronger individual around in order to help force compliance with a large prisoner, well.

Again, everyone is different, people of both genders come in every weight and size. But, if you as the sergeant have a limited number of people, and a jail full of large, non-compliant individuals. And you look, and you've got 5 males on your staff, averaging 180-200 pounds. And you've also got 5 females on your staff, averaging 110-120 pounds.

Perhaps you might consider that leaving just two of the females on staff around, when they might need to wrestle a large strong person into a cell...might not be the wisest or safest idea.

[SomeGuy 2]

Allegation: Male Dallas jail officers can get full weekends off, whereas female officers can only get one weekend day and one weekday off. Unlawful discrimination on the basis of sex? Fifth Circuit: Circuit precedent requires plaintiffs to show they've suffered an adverse employment action to proceed under Title VII of the Civil Rights Act of 1964 or its state-law analogue, and these plaintiffs haven't been fired, demoted, transferred, etc. We should probably go en banc about it.

Strange case. There appears to be no reason for this policy nor does the County proffer one. But the County implicitly admits this really did happen, because per footnote 3 they say the policy was just temporary. The sergeant cited "safety" but the number of inmates is always the same and male/female guards do the same duty. So best guess is here is the sergeant did something stupid and now the County is stuck defending it as best they can. The County claimed the policy was "temporary" but hasn't clarified whether it's been revoked. Seems like this can and should be settled by revoking the policy and paying some nominal damages to the plaintiffs. A past day off schedule mishap is worth something, but probably not a lot if they still got two days off.

[Soronel Haetir]

I am glad the panel followed circuit precedent, I just find it nuts what the precident precedent s.

[Morbo]

Just taking a wild ass guess here: it's typically required that searches of female prisoners is required to be done by female guards, which means they have to have a certain number of female guards on shift at any one time. They likely don't have enough female guards to cover all the shifts, so they resorted to restricting their days off to certain days of the week.

Ideally, they'd hire more female guards to make up the shortfall, but I doubt there a ton of women out there who want to be prison guards, and they may not have the budget (or don't want to spend their budget) to increase wages to the point where it would be more attractive.

[Armchair Lawyer]

It actually sounds like the opposite from the one line about safety and not having any male guards available. There aren't enough male guards.

[Vandalia]

If they both get two days off a week, what is the difference?

I would actually prefer one day off during the week; it is far easier to schedule doctor/dental appointments, etc., etc.

Everything you could possibly want to do is closed on the weekends.

[ReaderY]

The government’s position in the 4th Circuit Petties case differs from that of the mafia insurance policy in Monty Python’s Insurance Sketch in one very important respect.

In the Monty Python sketch, the mafia’s no-pat pay policy actually “states quite clearly that ‘no claim that you make will be paid.’” But in the Petties case, the United States argued this was implied. Defendant’s simply ought to understand that if they make a bargain that results in their being cleared of all charges if the contingency they insure for happens, it won’t be honored. The government proceeded to argue that if a defendant pleads guilty to an offense that is later found invalid while having the other charges dismissed (and expressly preserving the right to appeal the one charge), then honoring the plea deal as stated would defeat the whole purpose of having the plea deal, which was apparently, just like the mafia’s purpose in the Monty Python Insurance Sketch, to insure that the other side of the bargain would always lose.

At least Monty Python’s mafia had a contract that actually said so in the fine print. Very honest of them.

[Krayt]

More like the other Python mafia sketch, where, you know, "things might get broken. Things break, you know."

Or better still, "We had a deal!"

"I am altering the deal. Pray I do not alter it any further."

[ducksalad]

The guy that claimed produce in HEB had been licked by someone with Covid....I agree that it should be punishable at some level.

But making it a federal crime, a felony, and sentencing to 15 months in prison seems way over the top. And unlike some other Short Circuit links, reading the details in the link didn't reveal some major aggravating factor not mentioned in the summary.

[Rev. Arthur L. Kirkland]

Fifteen months seems reasonable for the described conduct of an ostensible adult.

Play stupid games, win stupid prizes.

Let's hope this loser reflects a bit and becomes a substantially better person. Either way, I imagine our society will be able to manage without this man's contributions for a year or so.

[Rossami]

re: the Second Circuit's kids only need to comply "if they wish to attend a school in the State,"
New York doesn't have truancy laws that compel school attendance? That part of the decision seems untenable.

re: the Fifth Circuit - licking is not a "biological weapon".

[Frank Drackman]

"Man pleads guilty to committing a crime of violence while having failed to register as a sex offender (subject to his right to appeal the constitutionality of the law)."
He appeals, wins. Feds: But how 'bout them other counts? The agreement never said we couldn't re-prosecute. Fourth Circuit: Not a chance.
Great, so he's free out raping, sex offending (I know, he has a "Penis Monitor" to detect um, you know...)
and whole thing is based on the concept that "Kidnapping" isn't a "Crime of Violence" (Tell the Lindberg baby that)...
Whole thing sounds like a (Boring) "Dexter" Episode, Dexter would track him down, stick the Pentothal in the IJ, and have the "Suspect" wake up to an array of photos of all of his Victims, just before Dexter administered the Coup de Grace.....

Seriously, this is what the Appeals Courts get paid for??

Dexter, I mean Frank

[SRG]

I always wonder whether in capital cases involving mentally ill defendants like Allen, juries and many judges deep down think that regardless of 8A precedent, these guys are just too crazy and should be despatched forthwith, rather than sentencing them to life.

The account of Allen's upbringing is truly grim, fwiw

[Krayt]

Due to worries of these little airplanes bumping into larger aircraft and helicopters—and also just falling out of the sky—Congress asked the FAA to develop standards for identifying them. The resulting rule requires all drones to have a "Remote ID" emitted via radio signal.

Don't forget to pry the ID out if you're gonna fly it into a plane.

[John F. Carr]

More like "hack the software". The ID is probably in flash memory somewhere. Drones are also required to broadcast the location of ground control. You want to disable the GPS receiver too and hope the drone is willing to fly without GPS.

[Krayt]

The Privileges and Immunities Clause of Article IV of the Constitution means that states can't discriminate against nonresidents who want to pursue an occupation or acquire property in the state. But surely, says Prince George's County, Md., that doesn't mean we can't discriminate in favor of gov't employees who work in the county, right? Fourth Circuit: Of course it means that. What else would it mean? Come on, guys.

For a long time, the City of Detroit had a rule that, if you worked for the city, you had to live in the city. Cops with a decent salary had issues because they, like anyone with a decent income, fled.

Ah, well. Anyway, at one point, fully half of the people who lived in the city, and worked in the city, worked for the city.

Also, Thornton Mellon, LLC.

[Shamie Ervin iv]

"...oh my goodness gracious..." Such wonderful reading!

[Rev. Arthur L. Kirkland]

If your god commands you to expose children to serious disease needlessly, you picked a particularly crappy religion and are likely a lousy, antisocial, stupid person.