Short Circuit: A Roundup of Recent Federal Court Decisions

Bar crawls, backyard riots, and impersonating an officer.

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

New cert petition: In 2018, the Supreme Court unequivocally rejected the so-called "professional speech doctrine," under which lower courts had been giving mere rational basis review to restrictions on speech instead of the usual, robust scrutiny that the First Amendment demands. And yet! The Eleventh Circuit recently resurrected the doctrine in all but name to uphold a Florida law that makes it a crime for anyone but a licensed dietician to give dietary advice. That won't do. (And if you won't take our word for it maybe you'll find this amicus brief by several noted scholars, including Erwin Chemerinsky, persuasive.)

New on the Short Circuit podcast: The very best podcast episode on the Montana Supreme Court and the Montana Constitution that has ever been recorded this week.

• Friends, last week we shared a ruling of the D.C. Circuit in a wrongful arrest case that contained some puzzling redactions. This week, the D.C. Circuit released an unredacted version of the opinion. Turns out the redactions were mostly about how compliant the victim was and how little cause there was for arresting her.
• On April 24, 1996, Congress enacted the Mandatory Victims Restitution Act (MVRA), significantly extending the enforceability of restitution orders—from 20 years after entry of judgment to 20 years after release from imprisonment. Twelve days earlier, a New Jersey man commits an armed bank robbery. He's convicted in May the following year, ordered to pay $20k in restitution, and remains in prison today. Can the gov't seize his prison trust account to satisfy his outstanding restitution? Third Circuit: Nope. That would violate the Ex Post Facto Clause. Dissent: The Ex Post Facto Clause prohibits increasing someone's punishment, but because of the time value of money, extending the time to pay actually decreases the punishment.
• Allegation: El Paso, Tex. officers are summoned to home by neighbor's report of a riot in progress. Instead, they find it's "just kids talking loudly" in the backyard. The teens decline to speak without an adult present and leave. The officers follow and, a block away, search a 16-year-old who lives at the home, finding a key to the house in her bra. The officers return to the house, enter, and find her mom helping to bathe two other daughters. Officers: We had to get into the home to see if anyone was having an emergency. Fifth Circuit (unpublished): No qualified immunity.
• What's the difference between a short ton and a long ton? This Fifth Circuit opinion, finding no problem with the fees big ships must pay use the recently (and ongoingly) deepened and widened Sabine-Neches Waterway, answers that question (but steers clear of what kids these days mean by shit ton).
• The right to travel internationally is not fundamental and thus restrictions on that right are not deserving of strict scrutiny, says the Fifth Circuit. Which is not good news for this gentleman who had his passport revoked over a seriously delinquent tax debt.
• Service members sue the Air Force over its COVID-19 mandate, claiming it has given out thousands of waivers for health and administrative reasons but none for religious reasons, even though the regulations allow for all three kinds of waivers. District court: Looks fishy, here's a preliminary injunction. Sixth Circuit: Certainly does, and the emergency request for a stay is denied. We'll expedite the PI appeal, though.
• Two Michigan state troopers make national news when they're arrested for stealing a bicycle during Mackinac Island bar crawl. One of the troopers: I had no idea the bike was stolen, which the officer who requested the arrest warrant knew and omitted. Sixth Circuit (unpublished): If true, could be malicious prosecution. No qualified immunity.
• Between 1978 and 1998, an Ohio State University athletic team doctor sexually abused over a thousand students. District court: Because of the two-year statute of limitations none of these 110 victims can sue the university under Title IX. Sixth Circuit: The claims are timely if the victims didn't know Ohio State was responsible until a 2018 independent investigation revealed the extent of the abuse and cover-up. Dissent: The statute of limitations began to run when the victims knew they were injured, and the abuse alleged is so obscene that they plainly knew decades ago.
• Police ultimately had probable cause to arrest a gentleman for impersonating an officer, but, says the Seventh Circuit, the Whitestown, Ind. officer who handcuffed him beforehand is not entitled to qualified immunity because you can't just go handcuffing folks willy-nilly during Terry stops. There's rules.
• Sadly, however, the gentleman above, who, it turns out, did not impersonate an officer, gets no succor out of the Indiana Tort Claims Act for the damage to his car while it was in impound. Because, says the Seventh Circuit, police who engage in even egregious misconduct while carrying out legitimate law enforcement activity are exempted from liability under the Act.
• You can't get your case into this humble little roundup unless you file a notice of appeal following final judgment from the trial court. Thankfully, the rules were amended last year to clarify that you don't have to specify every single ruling you're challenging—you just need to appeal the final judgment and all the other judgments can come along for the ride. Tenth Circuit: Unfortunately for this Colorado inmate, the change wasn't retroactive, so his failure to specifically note his appeal from a partial summary judgment earlier in his case lets those defendants off the hook.
• A couple years ago a South Carolina circuit judge did something deeply reasonable and remarkably correct, holding that the state's civil forfeiture laws are unconstitutional because, among other reasons, property owners must prove their innocence (even when the gov't doesn't put forth any evidence of guilt) and are not given prompt post-seizure hearings, meaning owners must wait months or years for the return of improperly seized property. Sadly, this week the South Carolina Supreme Court reversed, holding that it is for the legislature and not the judiciary to rein in the state's well-documented forfeiture abuse. (This is an IJ case.)
• And in en banc news, the Eighth Circuit will not reconsider its ruling granting qualified immunity to Des Moines, Iowa police who are alleged to have racially profiled a Black driver. Two judges dissent from denial, arguing that it's high time we set some clearly established law on the matter.
• And in further en banc news, the Ninth Circuit will not reconsider its ruling that there's nothing unconstitutional about California banning prisoners who fought wildfires while incarcerated from becoming full-time firefighters upon release. (This is an IJ case.)

Earlier this year, Mauldin, S.C. officials rezoned their Main Street in hopes of promoting private development. The change means most of the businesses there (a mayonnaise factory, auto repair shops, a swimming pool repair company, a rental car business) are now nonconforming but grandfathered uses that can continue operating indefinitely. Arbitrarily, however, officials singled out one type of business for special mistreatment: The ordinance requires U-Haul rental businesses to close by the end of the year. Which, in addition to being lowdown and nasty, and also violating due process and equal protection, is a taking of private property without any (much less just) compensation in violation of the South Carolina Constitution. Click here to learn more about IJ's latest lawsuit.

Comments

[Bored Lawyer]

The Eleventh Circuit recently resurrected the doctrine in all but name to uphold a Florida law that makes it a crime for anyone but a licensed dietician to give dietary advice.

So if I tell someone, "looks like you're putting on a few pounds, maybe you should cut out sugar," I can be arrested?

[Krychek_2]

If you make a business out of it, probably. Not that I think the law is good policy.

But under the same theory, can a disbarred lawyer who makes a business out of giving out legal advice raise the First Amendment as a defense? He, too, is merely engaged in speech. Or can someone who has never set foot inside a medical school make a business out of giving medical advice?

I think in the cases of law and medicine, the stakes are high enough to justify restrictions on speech. In the case of dieticians, they probably aren't. And that, to me, is the ultimate question: How high are the stakes if you get bad advice?

[David Welker]

I think advice on diet, if taken seriously and followed, is more important than most legal advice. You are talking about a person’s health.

[ReaderY]

But why should courts, rather than legislatures, decide when “the stakes are high enough?” That’s it’s too high gor doctors ans lawyers but not for dieticians and psychotherapists? That’s the sort of call traditionally made by legislatures.

[apedad]

The key is if you’re talking to a “client,” so someone you have a professional relationship with.

[Currentsitguy]

I'd certainly hold my tongue if I'm asked "Does this dress make my ass look big?" particularly in todays social climate, you might be pilloried for answering with either no or yes.

[SRG]

"Under advice of counsel..."

[John F. Carr]

"You're carrying the pregnancy very well."

[GKHoffman]

The correct answer is always "no." But don't say out loud the rationale for your answer: "It's not the dress that did it."

[bernard11]

The claims are timely if the victims didn't know Ohio State was responsible until a 2018 independent investigation revealed the extent of the abuse and cover-up.

Really want to see Jim "see no evil" Jordan testify. Maybe he'll put on a jacket.

[Kleppe]

If you don't like Jim Jordan not wearing a jacket, you'll simply HATE the way John Fetterman* dresses.

*He apparently styles himself as "John Fetterwoman" now.

[Mr. Bumble]

Just imagine him in a dress.

[bernard11]

Both are posturing.

Fetterman hasn't helped cover up any sex abuse.

[Toranth]

He has, however, run down a jogging black man and held him at gunpoint, just because he heard there might have been a crime committed nearby.

I believe this was something you had strong opinions about last year.

[Sarcastr0]

He’s talked a lot about that. His take differs, I guess you didn’t care about that though.

[Michael P]

His take is "it's different when I do it".

[Toranth]

Yeah, and the McMichaels take differed, too.

You didn't care much about their take then, but it's different when it's a Democrat running for federal office, isn't it.

[bernard11]

Um. Did he kill the guy, like the McMichaels did?

Seems like a difference.

[Toranth]

Your only problem was the shooting?

Not the running down and holding at gunpoint because of the color of his skin?

Oooh, boy, bernard, you got some problems.

[bernard11]

just because he heard there might have been a crime committed nearby.

False. He did not hear "there might have been a crime committed nearby." What he heard was what sounded like a lot of gunshots. (It apparently was some kids shooting off bottle rockets, though several other people said it sounded like gunshots.)

[Noscitur a sociis]

There are plenty of situations where a man can look fine not wearing a tie.

There are approximately zero where he can pull off wearing a tie but not a jacket.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

You mean a man might - gasp! remove his jacket and keep his tie in an office?!?

Man this country is going downhill.

[bevis the lumberjack]

It only looks good if you loosen up the tie at the unbuttoned collar and roll your sleeves part way up your forearm.

[Zarniwoop]

Yo! Burningman, bow tie + glitter vest.

[Currentsitguy]

He reminds me of the sort of people I occasionally see at the local dive who from the moment they walk in the door you just know are going to be a dick.

[SRG]

Gym Jordan is a Dexter-looking motherfucker

[Noscitur a sociis]

property owners must prove their innocence (even when the gov't doesn't put forth any evidence of guilt)

I'm certainly not an expert in South Carolina forfeiture law, but that is not how the procedure is described in the opinion.

[LawTalkingGuy]

“At the hearing, the State has the initial burden of demonstrating "it had probable cause for believing a substantial connection exists between the property to be forfeited and the criminal activity." Gowdy v. Gibson, 391 S.C. 374, 379, 706 S.E.2d 495, 497 (2011). If the State meets this threshold, the burden shifts to the property owner "to show by a preponderance of the evidence that the property was innocently owned."”

While Short Circuit can be a bit loose in describing things, especially IJ cases, I think this characterization is defensible. Government has a low burden to prove the property has a nexus to criminal activity, not necessarily the owner’s guilt or the owner’s connection to criminal activity. The burden then shifts to the owner to prove their innocent ownership. So you have to prove you are innocent of any possible crime that this money could be connected to.

[Krychek_2]

The practical problem is that what judges consider probable cause, and what normal people consider probable cause, are not the same. The mere fact that someone is carrying a large amount of cash, without more, is not probable cause for anything.

I would make it like any other civil lawsuit. The government has the burden of proof by a preponderance of the evidence. If it can’t do so, directed verdict.

[Davedave]

"the State has the initial burden of demonstrating "it had probable cause for believing a substantial connection exists between the property to be forfeited and the criminal activity"

The problem is that 'probable cause' is completely the wrong bar, far too low to apply there. Cash is sufficiently linked to crimes that having cash on you provides probable cause for questions about where the cash came from. Far, far more than mere probably cause is needed for a seizure to be legal.

Obviously, any seizure based on such questioning is completely illegal unless you have actually admitted it's the proceeds of crime, but the courts can't seem to understand that police officers are committing straight-up theft, and keep assuming, sans evidence, that there is something more to it than basic criminality by an organised criminal gang that has infiltrated and taken over the police.

The US judicial system seems to be largely populated by a rather special bunch of idiots who can't tell the difference between 'knotty point of legal theory' and 'criminals advancing ludicrous arguments deserving of sanctions'.

[David Nieporent]

The first one (the DC Circuit one) is insane. We all commented last week about how the redactions couldn't possibly be significant. Now we know that for a fact. For example, the very first redaction:

Although Lin was seated, calmly cooperating with the police and attempting to explain the circumstances of the assault, officers grabbed Lin, pressed her against the wall, and then forced her to the floor and handcuffed her.

The boldfaced word was redacted. That's unfathomable. Was someone on the court playing a practical joke?

The next one:

When Officer Vullo approached the office, Lin immediately opened the door for him. Lin Opening Br. 4. While holding a cellphone to her ear, she nodded her head, gesturing for him to come in.

Again, WTF? Who thought it was reasonable to redact these things?

[Mr. Bumble]

Government loves to play I've Got A Secret.

[Noscitur a sociis]

Poking around docket after being similarly confounded, I think this is what happened:

In the trial court (and the appellate record), the surveillance video and body cam footage of the incidents was sealed. About the time the opinion was ready to issue, the court noticed that the videos were sealed, and asked the parties if they should remain sealed. Both parties did ask that they remain under seal, and the court agreed. So the redacted portions from the original opinion look like the parts that describe what was depicted on the sealed video. Then, perhaps recognizing how silly that was, the panel issued a notice that it was planning on releasing the unredacted opinion, and the parties indicated no opposition.

[Paul Sherman]

I wrote both summaries, so I’ve been wondering about this. That’s the best explanation I’ve heard.

[David Nieporent]

While your explanation sounds logical, the flaw in it is this: there are parts of the opinion that come directly from security video that are not redacted… while many of the things that are redacted don't cite to the video.

Even for stuff which must have come from body cams, it's haphazard. For example:

Sergeant Ritchie then questioned the other officers on the scene about the handcuffing. Gov’t Br. 5. Officer Johnson reported: “She wasn’t flailing at us, she was just not allowing us to handcuff her.”

How can half of the guy's sentence be sealed?

Gov’t Br. 6; D.C. Ex. 4 at 19:57–20:02. Sergeant Ritchie asked, “So she was actively resisting you?” D.C. Ex. 4 at 20:02–20:04. Officer Johnson replied: “Passively, yeah.”

Again, if these facts came from body cam footage, and the body cam footage was sealed, that's one thing. But just one word from that footage?

[David Nieporent]

Also — and this isn't directed at your explanation, but at the district court — how could a judge possibly conclude it was legitimate to seal any of this stuff in the first place?

But… now I am a bit puzzled by your explanation. Having reviewed the trial docket, there was no motion to seal, and the trial court's ruling was not in any way redacted.

[Noscitur a sociis]

You are correct, looks like it was subject to a protective order in the trial court and submitted under seal as part of the appellate record.

You are also correct that no one except the panel seems to have actually treated it as sealed, which appears to be what prompted the inquiry in the first place:

It is ORDERED, on the court’s own motion that the parties show cause on or before August 22, 2022, why the sealed joint appendix filed September 28, 2021, should not be unsealed in light of the parties’ references and citations to the sealed appendix in their public briefs both in this court and in the district court and at oral argument held December 16, 2021. The parties are strongly encouraged to submit a joint response. The response or responses may not exceed 2,600 words each, and if appropriate, should be filed under seal.

Now, why they didn't just hold the opinion for a couple weeks while they hashed this out is anyone's guess, but as far as I can tell that's what happened.

If you have a better theory I would of course love to hear it!

[Brett Bellmore]

"Earlier this year, Mauldin, S.C. officials rezoned their Main Street in hopes of promoting private development."

And a few years earlier they rezoned Butler, which crosses it, (As well as being a few minutes from my home.) to be commercial, with the same intent. The street is gradually filling up with empty houses nobody can buy to live in, and no business wants to pay to remove, as Mauldin still has adequate empty land for them to expand into.

What is it with cities having such a determination to get rid of mixed neighborhoods that they'll deliberately take a significant fraction of the housing stock out of availability when people are moving in in record numbers?

Oh, wait: Apartments are a commercial use of property, answered my own question. I believe I remarked in a zoning discussion that it doesn't take many apartment buildings in a single family neighborhood before the original inhabitants are outnumbered, and the local government shifts over to serving apartment dwellers at the expense of home owners.

That's what is going on here in Mauldin.

[Mr. Bumble]

Guess no one learned from Kelo.

[John F. Carr]

I used to live in a row of apartment buildings surrounded by one- and two-family houses. We did not have any political power.

[LawTalkingGuy]

Fifth Circuit just upheld Texas’s social media law. It’s a very dumb holding for many reasons, but I wanted to highlight this passage:

“The Platforms do not directly engage with any of these concerns. Instead, their primary contention—beginning on page 1 of their brief and repeated throughout and at oral argument—is that we should declare HB 20 facially invalid because it prohibits the Platforms from censoring “pro-Nazi speech, terrorist propaganda, [and] Holocaust denial[s].” Red Br. at 1.
Far from justifying pre-enforcement facial invalidation, the Platforms’ obsession with terrorists and Nazis proves the opposite. The Supreme Court has instructed that “[i]n determining whether a law is facially invalid,” we should avoid “speculat[ing] about ‘hypothetical’ or ‘imaginary’ cases.” Wash. State Grange, 552 U.S. at 449–50. Overbreadth doctrine has a “tendency . . . to summon forth an endless stream of fanciful hypotheticals,” and this case is no exception. United States v. Williams, 553 U.S. 285, 301 (2008). But it’s improper to exercise the Article III judicial power based on “hypothetical cases thus imagined.” Raines, 362 U.S. at 22; cf. Sineneng- Smith, 140 S. Ct. at 1585–86 (Thomas, J., concurring) (explaining the tension between overbreadth adjudication and the constitutional limits on judicial power).”

https://techfreedom.org/wp-content/uploads/2022/09/2022-09-16-Published-Opinion-dckt-.pdf

This isn’t fanciful. Here’s Jeffrey Goldberg exploring Nazi Twitter in 2016 before they got better at content moderation:

https://www.theatlantic.com/politics/archive/2016/06/welcome-to-nazi-twitter-ill-be-your-guide/486233/

Other well known Twitter users with demonstrated Nazi-sympathies include erstwhile right wing darling and Paul Nehlen and Unite the Right leader Jason Kessler. And let’s not forget that another social media site, GAB, was created in part due to the banning of Nazis from Twitter, is ran by an open antisemite, and was the platform of choice of Tree of Life shooter Robert Bowers. And that’s only some of the most overt examples.

So Oldham’s statement here is simply false. It’s either stunningly ignorant at best, or an outright lie at worst. But it’s interesting that the higher up the judicial pecking order you go, the less and less factual statements need to be backed up by anything either in the record or easily discovered in the real world.

[David Nieporent]

Judge Cannon is jealous; her decisions in the Trump case now fall down to the second worst ever written.

[John F. Carr]

Free speech includes free speech for Nazis, hyperbolic or actual. The platforms might has well have complained that they couldn't censor duck recipes. They may have a right to censor duck recipes. Crying "Nazi!" is not the way to get me to support it.

[gormadoc]

It is worth noting for the Iowa case that the cops received qualified immunity because the court held the defendant had "failed to show that the officers were motivated in any part by [his] race," ignoring the question of whether it was previously established because it was then moot. The dissent for rehearing en banc acknowledged that this case may not be a great vehicle for figuring that out: "The question may be asked whether this is the ideal case in which to address this long-festering issue. Maybe not. But if not now, when?"

[Michael P]

The officers follow and, a block away, search a 16-year-old who lives at the home, finding a key to the house in her bra. The officers return to the house, enter, and find her mom helping to bathe two other daughters.

They should have faced charges for that, not only a civil lawsuit. But I'm sure they didn't.

[Davedave]

Yes, the major problem in the US at the moment is that 'police' aren't prosecuted for serious crimes. That is a prima facie case of lock-em-up-and-throw-away-the-key. Kiddie fiddling is a crime, one that leads to lengthy sentences. And they have clearly demonstrated that they are defrauding taxpayers by pretending to be police, drawing police salaries while refusing to learn the most basic parts of their jobs.

RICO the lot of them, from the DA down. These are criminal gangs which demonstrably break the law to protect their members from retribution.

[tuphat]

Was that shit ton a metric shit ton or an imperial shit ton?

[ReaderY]

Becerra can read more narrowly than the Institute of Justice is claiming. We’ll see how things out. It’s clear a state can’t regulate everything a professional says to a client. But the Supreme Court carved out two exceptions, one of which was consumer disclosures, and the other speech incidental to performing a professional service.

Are talk therapy, dietary counseling, etc. professional services? The Institute seems to simply assume that they aren’t. But Becerra never said that they aren’t. The 9th Circuit’s interpretation is that when a profession’s services consist primarily of speech, like talk therapy, the speech involved is exactly “incidental to professional services” and hence within the Becerra exception.

It may be wrong. But it’s a plausible reading of Becerra.

If we draw a Venn diagram with speech as one circle and professional services as the other, the two overlap. The Institute simply assumes professional services must mean something other than speech and it excludes the overlap from the Becerra definition of “professional services.” But if that’s plausible, it’s equally plausible to assume that speech must mean something other than professional services and excluse tbe overlap from the Becerra definition of “speech.” And that’s what the 9th Circuit did.

You can disagree with what they did. But they applied Becerra in a way that’s just as logical, just as realnable a way to render the Venn diagram, as the Institute’s interpretation. They didn’t ignore Becerra. They might be wrong. But frankly, just saying they simply ignored Becerra rather than acknowledging they interpreted Becerra and trying to explain rationally why their interpretation is not the best reading of Becerra practically waives argument and forfeits. You don’t offer any counterargument other than it’s wrong because I say it’s wrong.

[ReaderY]

One reason the 9th Circuit’s reading of Becerra is plausible is that the opinion repeatedly referred favorably to regulations of lawyers as representing legitimate exceptions. And what lawyers do is almost entirely speaking and writing, as much so as psychotherapists and dieticians. If it’s wrong to regulate dieticians, how can if be right to regulate lawyers? What distinguishes the two from a First Amdndment point of view? After all, speech that falls within “professional services” is not all speech and doesn’t cover every interaction between lawyers (or psychotherapists or dieticians) and clients.