Short Circuit: A Roundup of Recent Federal Court Decisions

Pretextual stops, consular nonreviewability, COVID on cruise ships.

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

Tu stultus es. So writes The Onion in an amicus brief urging the Supreme Court to take up Novak v. City of Parma, an IJ case that asks the question: Can the cops really ransack your home and put you in jail for making fun of them?

• Did Congress give the executive branch the authority to allow foreigners with student visas to stay and work for a while after they complete their in-class studies? D.C. Circuit: Yes, and this has been happening for over 70 years. Dissent: I'm going to use the word "verbicide" and quote Justice Holmes' father.
• Regulations adopted under the Americans with Disabilities Act require hotels to make information about their accessibility available on any reservation portal, so that those with disabilities can book a room without having to call the hotel. Serial ADA plaintiff, who has filed hundreds of lawsuits, searches the internet for noncompliant hotels and sues them. Hotel: But the plaintiff, a Florida resident, has no intention of ever visiting our hotel, so the missing information didn't harm her. First Circuit (deepening a circuit split): She had a statutory right to the information and you didn't provide it. That's an injury.
• Allegation: In retaliation for assisting other inmates with filing grievances at New York prison, guards search inmate's cell, lie about the dangerous nature of contraband found in his cell, and get him sent to disciplinary confinement for several months. Unconstitutional retaliation over his protected speech? District court: Inmates get their cells searched all the time; no one of ordinary firmness would be discouraged from filing grievances because it might result in a cell search. Second Circuit (unpublished): Well, there's the lying too. Case undismissed.
• Allegation: In retaliation for serving as an informant in an investigation into security issues at Delaware prison, officials punish inmate with isolation, take away privileges, and send him to a security housing unit for a year. Unconstitutional retaliation over his protected speech? Third Circuit (unpublished): Maybe he got sent to solitary for some other reason. Case dismissed.
• North Carolina inmate with debilitating hip, knee, and ankle pain seeks a handicap pass so that he can access a first-floor prison library instead of having to walk up two flights of stairs to get to the general population library. The prison denies the pass for seven months, aggravating the injuries. The inmate sues under the Americans with Disabilities Act. Fourth Circuit: But compensatory damages are only available if the defendants acted with deliberate indifference to the inmate's rights, and the inmate has failed to establish that. Dissent: There's more than enough here to go to a jury.
• Pretextual traffic stops "lead to the unnecessary and tragic ending of human life. Here, a child threw a candy cane out the window. Twenty-five minutes later, the driver, her father, was dead." And, says the Fifth Circuit, since video of the shooting doesn't clearly contradict the driver's estate's version of events, granting qualified immunity to an Arlington, Tex. Officer was inappropriate.
• In 2012, DHS issued a memo announcing DACA, a program pausing deportation of people who had entered the U.S. illegally as children and providing them with certain benefits. Fracas (and much litigation) ensues: The program is expanded, struck down, rescinded, the rescission is struck down, and DHS promulgates a rule in 2022. Fifth Circuit: We'll consider the 2012 memo, which we conclude violates administrative law and is enjoined except as to current DACA recipients. But we won't address the new rule until the district court does so first.
• We found a Third Amendment case! No, silly, not that Third Amendment. It's doing just fine. We mean the third amendment to the stock agreements between the Treasury Department and Fannie Mae and Freddie Mac made after the 2008 financial crisis. Sixth Circuit: The officer who authorized the amendment was constitutionally in office even though he had never been confirmed by the Senate and had been an "acting" director for three years. Dissent: Anything over six months is too much.
• South Bend, Ind. officer shoots suspect dead, tells everyone the man was wielding a knife. Man's estate: Between the officer's failure to activate his body cam and his subsequent felony conviction (for ghost employment), a jury might doubt his version of events. Seventh Circuit: And yet it is the only version of events we have to work with. Case dismissed.
• We found a Ninth Amendment case! But unfortunately for this gentleman, who says he suffered a head injury being thrown into a Rapid City, S.D. police car, the Eighth Circuit (unpublished) says that the "Ninth Amendment does not create rights cognizable under Section 1983."
• Thanks to the doctrine of consular nonreviewability, judges don't get to look at whether a U.S. consulate has a good enough reason to deny a foreigner's visa all that often. Ninth Circuit (over a dissent): But here, where the consulate refused to tell a man and his U.S. citizen wife the reason for the denial for nearly three years (and then only after being prompted by litigation)—the government's belief that he's a member of MS-13—her due process rights were violated. Remanded for a look at the merits.
• Remember a few months ago when we reported on a Ninth Circuit Fourth Amendment case about digital seizures where, according to UC Berkeley law professor Orin Kerr, "Holy crap" (his words) "this case just made some crazy-wild law on digital seizures and terms of service without the judges even realizing it" (our words paraphrasing him)? Well, the panel has amended its opinion to take out the crazy-wild stuff, although otherwise the ruling and result are the same. You'll be happy to know that Professor Kerr is pleased.
• Pretrial detainee in Clear Creek, Colo. jail suffers face fractures, broken jaw, dismembered teeth, and stab wounds after unprovoked attack by another detainee. It takes the two guards, who are responsible for watching 120 detainees in different pods, two minutes to enter the pod. Tenth Circuit (unpublished): The sheriff isn't liable because the detainee failed to show the sheriff was aware of the risk of such attacks in overcrowded, understaffed conditions.
• A Florida law prohibits cruise lines (among other businesses) from requiring passengers to prove they've been vaccinated against COVID-19. District court: That's a free-speech violation. Law enjoined! Eleventh Circuit: Asking for proof of vaccination is speech, but kicking somebody off the boat when they decline to provide it is conduct, and this law only forbids the second thing. Law un-enjoined! (Dissent: A law prohibiting cruise lines from trying to prevent the spread of COVID-19 on their ships is the exact opposite of a public-health law.)
• Man is charged with felony murder for his suspected role in Albany, Ga. gang shootout, but after the prosecution is dropped he sues the detective who sought a warrant for his arrest. Eleventh Circuit: Indeed, the detective's affidavit was "skeletal" and "devoid of relevant and reliable facts"; no reasonable officer would have thought it was sufficient to establish probable cause. No qualified immunity.
• Florida pastor is invited to give an invocation at the start of a Jacksonville, Fla. city council meeting, but quickly turns the prayer political, levying criticisms against the city's executive and legislative branches. The president of the city council admonishes the pastor to no avail, and ultimately cuts off his microphone. The pastor sues, alleging violation of his rights to freedom of speech and free exercise of religion. Eleventh Circuit: The opening invocation was government speech, so the city council had authority to control its content.
• Man convicted of rape in 1986 moves to Montgomery, Ala. with his common-law wife in order to care for his aging mother. Uh oh! Alabama's sex-offender registry law makes it impossible for him to find housing, forcing him to sleep under a highway overpass (among other inconveniences and indignities). But does the law, enacted long after the man's conviction, violate the Ex Post Facto Clause? Eleventh Circuit (after a seven-year delay): Nope. The scheme isn't designed to punish, so its retrospective application is constitutional.
• Georgia man who—along with two accomplices—kidnapped, gang-raped, and murdered his ex-girlfriend is convicted and sentenced to death. But was his lawyer's performance so deficient that the sentence must be overturned? Eleventh Circuit (en banc): Even if the lawyer did a bad job, the state courts reasonably found there was no prejudice, and we defer to that finding. Concurrence: We shouldn't defer, but it doesn't matter, because there was no prejudice. Dissent: There's a reasonable probability that at least one juror would have been swayed against the death penalty, and that's enough for resentencing.

Friends, Humboldt County, Calif. officials are dinging residents with $10k per day fines over cannabis-related offenses that … are not real. Using outdated satellite images, officials have assessed millions in fines for nonexistent cannabis without even a cursory investigation. "If the county inspector had asked to swing by, I would have been happy to show him inside my greenhouses," says IJ client Blu Graham, who owns a restaurant. "I've got nothing to hide. It was just a bunch of peppers." Even worse, the county makes residents wait years to simply schedule a hearing to challenge the fines—the fines accruing all the while. Officials refused to give Blu a hearing for nearly five years (and then mysteriously scheduled one and dropped the fines right before we filed suit.) That's all super unconstitutional, so this week IJ filed a federal class action on behalf of thousands of innocent property owners subjected to the county's nuisance abatement regime. Click here to learn more.

Comments

[Bored Lawyer]

“First Circuit (deepening a circuit split): She had a statutory right to the information and you didn’t provide it. That’s an injury.”

How does that square with the Supreme COurt decision in Transunion LLC v. Ramirez (2021)?https://supreme.justia.com/cases/federal/us/594/20-297/#tab-opinion-4443833

[Gandydancer]

The plaintiffs denied standing in Ramirez didn’t suffer a failure by Transunion to make the required disclosures (in the required form). That claim was denied. So that particular case doesn’t seem to be very much on point, though some of its dicta can be interpreted to disfavor statutory damages without infliction of concrete injury. But I think you want a case where the relevant verbiage isn’t dicta.

[Alan Vanneman]

How do you dismember a tooth?

[MatthewSlyfield]

I had the same thought.

[darkknight9]

I believe the teeth are seen as appendages, so tooth dismemberment would be having the tooth removed by less than pleasant means. Then again I know lots of folks who would call dentistry itself less than pleasant so… 🙂

[MatthewSlyfield]

No, it doesn’t work that way. Dismemberment is removing your appendages from you. If someone chops your arms off, you were dismembered, you would not say that your arms were dismembered.

[Gandydancer]

“History and Etymology for dismember Middle English dismembren, from Anglo-French desmembrer, from des- dis- + membre member”

Teeth aren’t “members”(limbs). “Shattered” would be correct. “Dismembered” is not, quite apart from the fact (as MS notes below) that it’s generally the party which has limbs that can get dismembered, not the limbs themselves. (Though if someone referred to the piles or arms and legs outside a Civil War battlefield surgery as “a pile of dismembered limbs” I’m not sure I could find a better phrase for it.)

[Noscitur a sociis]

Pretextual traffic stops “lead to the unnecessary and tragic ending of human life. Here, a child threw a candy cane out the window. Twenty-five minutes later, the driver, her father, was dead.”

It is perhaps worth noting that this case did not involve a pretextual traffic stop.

[Rossami]

The stated justification for the stop was that the cop saw something thrown from the passenger window (that is, away from the cop) of a moving vehicle and “thought it might be a crack pipe”. Unless the cop was Supergirl with x-ray and telescopic vision, there is no way that identification was credible. Furthermore, she recognized the error very early after the stop but continued to detain the vehicle.

How is that not a pretextual stop?

[nekit2010g]

She detained the vehicle because she had learned, subsequent to the stop, that the driver had warrants. That’s not even close to pretextual.

[Rossami]

If the Fifth Circuit’s summary is correct, she had not yet learned that at the point that the alleged justification for the stop was disproven. And, again, there’s no possible way she could have identified the item dropped from a moving vehicle as contraband so there was no justification for the stop in the first place.

Yes, she subsequently learned about the warrants. That post hoc justification does not rehabilitate the stop itself.

[nekit2010g]

Even if the item dropped was not contraband, it’s still littering. Meaning the stop is not pretextual. Period.

[Currentsitguy]

I find it difficult to define food as “litter”.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

How could the cop tell it was food?

[Gandydancer]

Food would anyway be litter. But it wasn’t food.

[mulch]

Making a stop for littering so you can check for warrants is nearly a textbook pretextual stop. The cop doesn’t give a shit about littering.

[nekit2010g]

How do you know?

[Krayt]

The dad is dead.

[Gandydancer]

And deserves to be.

[Gandydancer]

If it’s a real violation the stop isn’t “pretextual” even if the cop might ordinarily ignore it (which is not in evidence).

[David Nieporent]

Um, no, that’s literally what all pretextual stops are: stops for real violations, but for which the real motive is something else.

[Area Man]

It’s littering. That’s an offense in Texas. Police are allowed to stop people for offenses, however minor. Just because someone is stopped for something minor, doesn’t make it pretextual. And it’s well established that once someone is lawfully stopped, the police can check for warrants.

[nekit2010g]

Correct. It would be pretextual if she had looked at the driver, decided he was the type of person to have warrants, and waited for him to do something like not make a full stop at a stop sign or throw something (litter) out the window. That’s not what happened.

[Gandydancer]

Wrong. As long as the violation (rolling “stop”, littering) actually took place the the stop ISN’T “pretextual”. If the cop breaks your taillight before telling you he’s stopped you for a broken taillight, that’s different. The one is not the other.

[Davy C]

“Police are allowed to stop people for offenses, however minor. ”

True. But if the purpose of the stop is anything other than to issue a ticket or warning for that minor offense, then the stop is pretextual. Do you think the officer’s true purpose in stopping the car was to issue a littering citation?

[SKofNJ]

The lawfulness of any search or seizure depends upon its objective lawfulness, not the cop’s motive for his/her conduct. The U.S. Supreme Court and many (if not all) state Supreme Courts have said that repeatedly. Hence, so-called pretextual stops, that is, good stops if you ignore the motive behind the stops, are constitutionally valid stops.

[David Nieporent]

Just because someone is stopped for something minor, doesn’t make it pretextual.

People! ALL PRETEXTUAL STOPS ARE OSTENSIBLY FOR SOMETHING MINOR!!! THAT’S WHAT MAKES THEM PRETEXTUAL!!!

Unless your claim is that this cop actually regularly pulls over people purely for littering, and the cop had no ulterior motive here. Which is, I guess, possible for someone really gullible to believe.

[Noscitur a sociis]

As the opinion explains, a pretextual stop is when the police use a real traffic infraction to investigate a more serious crime that they don’t yet have probable cause for.

Here, the officer (incorrectly) thought she saw evidence of a crime, and that’s the reason she made the stop. Whatever else you want to say about the actions of the police, there was no pretext.

[Gandydancer]

The opinion “explains” no such thing. It misrepresents the plain English meaning of “pretextual” without any warrant from any authority to do so. E.g., in Whren v. United States SCOTUS did NOT call the stop “pretextual”. Whren said it was as part of his rejected claim, but that was nonsense.

In fact a real violation AUTHORIZES a stop, but no one need PRETEND that the observation of the vehicle which resulted in seeing that violation was motivated by anything other than reasonable suspicion of the occupants, even if itself not sufficient to authorize the stop.

Whren opinion: “Held: The temporary detention of a motorist upon probable cause to believe that he has violated the traffic laws does not violate the Fourth Amendment’s prohibition against unreasonable seizures, even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective. Pp. 809-819.”

[Voize]

Gandy, I think you slightly misstate Whren. The Court didn’t say it was nonsense to call the stop pretextual, it said it didn’t matter whether it was pretextual (i.e. misrepresented the true motives for the stop) as long as it was properly based on probable cause.

[David Nieporent]

even if a reasonable officer would not have stopped the motorist absent some additional law enforcement objective.

Yes. That’s what the word “pretext” means.

You appear to mistakenly think that calling a stop “pretextual” means that the officer was lying about the existence of probable cause. But it doesn’t; all it means is that the officer was lying about his motives.

The holding of Whren is that it’s okay for officers to lie about their motives, as long as probable cause actually exists, because the test for a valid stop is objective rather than subjective.

[y81]

There’s nothing in the opinion to indicate that it was pretextual stop as that term is used in the preamble to the opinion, i.e., a stop where the police suspected the car for some reason which did amount to probable cause, and waited until they could find some picayune offense to excuse a stop. Rightly or wrongly, the officer thought that the occupants had thrown a crack pipe out of the window, and made a stop on that basis. The whole discussion of pretextual stops is an irrelevant (or obiter, as we say) distraction. I guess the court has been brooding about this issue, hoping to vent its anger at the Supreme Court and the criminal justice system generally, and couldn’t wait any longer for a more appropriate case.

[y81]

Also, in addition to quoting some totally irrelevant verbiage, IFJ gives an inaccurate summary of the opinion. The court did not say that qualified immunity was inappropriate, it said that summary judgment on this issue was inappropriate. I don’t always read the opinions summarized here, but I wonder how many of the other summaries are fundamentally inaccurate. Certainly I will put less trust in them going forward.

[Davedave]

The court said very clearly that QI was wildly inappropriate, suggesting, implicitly, that the lower court might like to impose sanctions. It was _that_ outrageous a claim.

And it’s absolutely clear that, as a matter of law, the stop was pretextual. The ruling we’re discussing says so explicitly.

[Gandydancer]

It’s absolutely clear that as a matter of plain English the stop was not “pretextual”. Which court first made an ass of itself (as this one does) by declaring such stops to be “pretextual”?

[David Nieporent]

Rightly or wrongly, the officer thought that the occupants had thrown a crack pipe out of the window,

No, she didn’t. Why are you pretending this claim is credible? She saw a random object tossed out a car window, and out of the literally trillions of possibilities for what it could be, she thought, “Oh, that must be a crack pipe”? Sure. Pull the other one.

[Gandydancer]

Sure, it was just random chance that the object “out of the literally trillions of possibilities for what it could be” turned out to be something that actually looked so much like a crack pipe.

Tell me another. I like deriding gaslighting and other dishonesty.

[David Nieporent]

Who on earth said it actually looked “so much like” — or anything like — a crack pipe? Certainly not the court.

(In fact, the court described it thusly: “She claims that she thought the object might be a crack pipe and called for backup.” (Emphasis added.) Which is judgespeak for “Sure, pull the other one.” If the court thought there was the remotest chance that was true, it would’ve written, “She testified that she thought the object might be a crack pipe.”)

[Gandydancer]

Nonsense. The object wasn’t tossed out on the side “away from the cop”. Presumably she was following the vehicle at the time. The fact the object was the crooked plastic tube from a candy cane shaped container for candies makes her claim that it looked like a crack pipe quite plausible and, anyway, any trash tossed from a car is sufficient grounds for a stop and a ticket. The driver then was unable to produce a drivers license, refused to turn off the engine, get out of the car, etc. I hope the cop wasn’t badly injured by his running over her twice.

[Area Man]

“It is perhaps worth noting that this case did not involve a pretextual traffic stop.”

Agreed. The screed against pretextual stops at the beginning of the opinion was superfluous virtue signaling unrelated to anything to do with the case.

[Davedave]

There is a ruling we’re discussing that says, explicitly, that it was a pretextual stop, and explains why. You’re rejecting obvious reality again.

[Noscitur a sociis]

Could you quote the part of the opinion that you feel explicitly describes this as a pretextual stop?

[Davedave]

“The potential liability attending a policy of pretextual stops aside,
their empirical consequences are clear: they lead to the unnecessary and
tragic ending of human life. Here, a child threw a candy cane out the window.
Twenty-five minutes later, the driver, her father, was dead.”

It’s not just implicit, it’s explicitly stated that ‘here’ is a case of ’empirical consequences’ of ‘pretextual stops’.

[Noscitur a sociis]

I am going to have to go ahead and disagree with you that that’s and explicit labeling.

But at any rate, to the extent that the opinion is claiming, explicitly or otherwise, that this was a pretextual stop, the opinion is plainly incorrect. Which was, after all, my point.

[Gandydancer]

I agree with Davedave that Patrick E. Higginbotham, SJW, explicitly says that this case involved a pretextual stop. As he says, the “here” is dispositive. That it “explains” this ridiculous claim is less clear. That it ADEQUATELY explains it is arrant nonsense.

[Davedave]

You can deny obvious reality all you like, it’s not even harming your image, because we already know you’re a drooling loon.

But, the judgement explains clearly and in an easily comprehensible way why this was a pretextual stop. You could just read it and stop wetting your knickers.

[Gandydancer]

If I hadn’t read it it would be hard to explain how I quoted it (immediately below).

Your repeating your lie doesn’t make it any more credible, fucktard.

It’s not a long paragraph. Copy/paste works. Go ahead, quote this “explanation”.

[SKofNJ]

Area Man, you are absolutely right. Plus, I don’t believe the “disproportionate” claim is valid when one considers the true relevant measure, that is, the number of harmed detainees who were violating the law, including resisting, as opposed to looking at population percentages as a whole.

[Gandydancer]

Here’s our SJW judge’s footnote for his “disproportionate” claim:

“4 See Sam Levin, US Police Have Killed Nearly 600 People in Traffic Stops Since 2017, Data Shows, GUARDIAN (Apr. 21, 2022), https://www.theguardian.com/usnews/2022/apr/21/us-police-violence-traffic-stop-data (“Black drivers make up 28% of those killed in traffic stops, while accounting for only 13% of the population. Research has consistently found that Black and brown drivers are more likely to be stopped, searched and subjected to force.”).”

Shamefully, a Reagan appointee: https://en.wikipedia.org/wiki/Patrick_Higginbotham

[David Nieporent]

It is perhaps worth noting that this case did not involve a pretextual traffic stop.

Unless you believe that she actually thought it was a crack pipe, that isn’t worth noting at all, because it isn’t true. Stopping someone nominally for one reason, when actually one had a different motive, is the actual definition of pretext.

[Gandydancer]

No, it’s not. PRETENDING that you’ve stopped someone for one reason when you have a different reason for doing it makes the stop pretextual, at least as regards those you lie to. But taking advantage of a committed violation to stop someone when you have, as the Whren opinion says, “some additional law enforcement objective” doesn’t require any pretense at all (al least in court), since it is perfectly legal.

[Toranth]

Eleventh Circuit (after a seven-year delay): Nope. The scheme isn’t designed to punish, so its retrospective application is constitutional.

Ok, ignore the finding that the scheme isn’t “punishment”. At the exact same time, the Court did find that being required to report your presence to two government groups, rather than just one, was so extremely punitive as to be unconstitutional.
But being unable to get housing was just “regulation”. Whew!

[nekit2010g]

I’ve seen this line of bullshit reasoning with gun rights too. It’s obscene. I don’t care whether something was “designed” to punish or merely has that effect. Either way, it should not be imposed after the fact.

[Currentsitguy]

I’ve always said if you are too dangerous to be released without supervision, you are too dangerous to be on the outside.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Agreed … but then you end up with some guy in prison who everybody agrees would be safe enough to let go, if there were conditions, such as weekly drug tests, or having a job. It costs a lot less, may add revenue as taxes … and there you have parole, politicians and burrocrats can’t resist adding conditions, and we have the modern version.

[MatthewSlyfield]

I rather doubt that the 8th amendment would allow the application of sentences of life without the possibility of parole on such a broad basis.

[Gandydancer]

I rather doubt that you have any clue as to the meaning of the 8th Amendment.

[Kazinski]

“Dissent: A law prohibiting cruise lines from trying to prevent the spread of COVID-19 on their ships is the exact opposite of a public-health law.”

Under that rationale a law outlawing public accommodation discrimination against someone HIV positive or someone with monkeypox would be the opposite of a public health law too. But I think a rational a legislature could decide that any risks from the HIV and Monkeypox positive, and the unvaccinated are too speculative and banning them from public accommodations is contrary to the public interest.

We don’t need judges second guessing those decisions.

[Davedave]

There is no comparison between the two. People with HIV don’t spread HIV. People who are unvaccinated are mass-murderers. The unvaxed in the US are responsible for thousands upon thousands of of deaths. They are the worst serial killers in US history. They should be jailed for their crimes.

Of course, if they’d been properly dealt with to start with, there wouldn’t be any unvaxxed, because none of the loonies really believe this stuff to the extent of going to jail for it. It’s only other people they are willing to harm, not themselves.

But you know that, because you’re a neo-Nazi committed to hoodwinking them.

[nekit2010g]

People with HIV don’t spread HIV? LOL!

[Davedave]

No, people with HIV don’t walk around spreading HIV. This is simple, basic fact. It is necessary to do things like have unprotected sex, share needles, and so-on to transmit HIV.

Unlike Covid, where you are walking around murdering people with every breath, if you are unvaxed.

[Davy C]

If you actually currently have covid you’re spreading it whether you got zero jabs or 5. If you don’t currently have it, you’re not spreading it whether you got zero jabs or 5. A test seems way more relevant than a vaccine.

The law is perhaps best seen as a medial privacy law; I for one don’t want it to be routine for businesses to demand access to my medical history. And medical privacy has a direct impact on health if someone is concerned that everyone can see their medical records.

From the dissent:

For dormant Commerce Clause challenges to state laws, Supreme Court precedent requires us to balance the local benefits a state’s law brings against the burdens that law imposes on interstate and foreign commerce

I would argue that it’s troublesome for courts to be the ones deciding the balance of benefits of a particular law. That’s the legislature’s job. The dissent seems to think that “well, unvaccinated people will be more likely to get Covid, and thus drop out of the workforce, so that burdens interstate commerce” is a valid reason to strike the law.

[Davedave]

“The law is perhaps best seen as a medial privacy law”

No, it’s best seen as a law helping selfish loons murder people because Putinbots have got inside their heads.

[Gandydancer]

You are a loon.

[Davedave]

Perhaps so, but not a murderous one doing Putin’s work free of charge.

[Gandydancer]

There are no facts in evidence in support of that claim, and your word isn’t worth shit.

[David Nieporent]

The law is perhaps best seen as a medial privacy law; I for one don’t want it to be routine for businesses to demand access to my medical history.

Calling the issue of whether one has been vaccinated “medical history” is silly. Moreover, nothing in the law prevented the cruise ships from testing passengers before embarkation, which would obviously have a bigger impact on one’s privacy than merely asking for proof of vaccination.

The law is perhaps best seen as Ron DeSantis starting his campaign for the GOP presidential nomination.

[tkamenick]

unvaxxed =/= has COVID.
vaxxed =/= does not have COVID

There’s a huge difference in the hypothetical you are preparing.

[Squirrelloid]

I honestly can’t tell if this is parody or not.

[Kazinski]

Looks like the CDC has turned neon Nazi too:

“The U.S. Centers for Disease Control and Prevention announced Thursday that it will stop publishing COVID-19 case and death data on a daily basis and instead issue weekly updates, starting Oct. 20.”

Covid is over, best let it go.

[ReaderY]

Those may be reasons for a legislator to vote against the law, but they are not reasons for a court to strike it down. Whether it’s a good law or a bad law is none of the judiciary’s business.

Agree the dissent here was totally bonkers. If the possibility a state law might have some effect on interstate commerce gives the federal judiciary a right to veto it if they don’t like it, you may as well just call it a veto and be done with it.

[tkamenick]

-Pretextual traffic stops “lead to the unnecessary and tragic ending of human life.

Anybody else wondering if “lead” is meant to be past or present tense here?

[MatthewSlyfield]

I think future tense was intended.

Tragic results from past pretextual stops are a sunk cost the courts can’t do much about.

On the other hand, putting an end to allowing such pretextual stops might prevent tragic results from happening in the future.

[Gandydancer]

Or, putting an end to what you (and Higgenbotham) lyingly smear as “pretextual stops” will undoubtedly keep more criminals on the loose, resulting in more death and other bad effects for the rest of us.

No one forced this dead criminal to resist arrest.

[Noscitur a sociis]

I doubt it, since the past tense is spelled “led”.

[SKofNJ]

Under Supreme Court precedent, the reasonableness of a search or seizure is measured by an objective test. The subjective motive of the officer is not relevant. Therefore if a cop conducts an objectively lawful motor vehicle stop for a minor offense because the cop subjectively believes the driver has warrants, the stop is lawful.

[SKofNJ]

Area Man, you are absolutely right. Plus, I don’t believe the “disproportionate” claim is valid when one considers the true relevant measure, that is, the number of harmed detainees who were violating the law, including resisting, as opposed to looking at population percentages as a whole.

[Krayt]

“Ninth Amendment does not create rights cognizable under Section 1983.”

The Ninth doesn’t create rights at all. It merely recognizes there are other rights that actually exist, but were not enumerated by the Bill of Rights. This was to stop the power hungry from pretending they didn’t exist because, you know, power hunger and corruption tromping on those rights.

Like here.

[Squirrelloid]

Technically speaking, *none* of the amendments *create* rights. They *acknowledge* certain preexisting rights. And anyone who’s bothered to glance at the public discourse at the time of their passing knows the 9th amendment exists because other, unenumerated rights weren’t supposed to be second class rights – they were to get the same protection.

But who am I kidding, even ‘history and tradition’ ‘originalists’ aren’t going to give the 9th any meaning.

[Brett Bellmore]

Plenty of the amendments create rights. The right to trial by jury, for instance.

[Gandydancer]

Or the right to overthrow a tyrannical government.

Oh, wait. That’s only in the Declaration of Independence.

But the 2nd A doesn’t create the right to bear arms, it merely recognizes it and declares the Feds can’t abridge it. Which doesn’t stop it from happening.

[ReaderY]

So a right to an abortion always existed, until it never existed?

[ReaderY]

In general, once judges start reversing each other out the wazoo, the idea that they merely discover what was always there through some sort of completely objective process kind of takes a credibility beating.

It’s like claiming your interpretation of Roschach cards is the true objective one.

[Gandydancer]

That’s backasswards. The right to abortions never existed until SCOTUS pulled it out of its ass, and then Good Thinkers pretended SCOTUS had the final word on the subject until SCOTUS changed its mind and, now, doesn’t.

So, yes, judges’ (and Justices’) credibility is shit. But it always was, for anyone with a clue,

[Gandydancer]

” Section 1983 provides an individual the right to sue state government employees and others acting ‘under color of state law’ for civil rights violations.” https://libguides.law.umn.edu/c.php?g=125765&p=2893387

“The Supreme Court has repeatedly voiced concern that a section 1983 claim be based on a specific constitutional guarantee. .. The district court properly dismissed the Strandbergs’ claim based on the penumbras of the ninth amendment.” https://openjurist.org/791/f2d/744/strandberg-v-city-of-helena-d

SCOTUS kritarchs to subject peoples: “Forget anything we say about legal interpretation avoiding assertions of superfluity. The Ninth Amendment is just gabbleflab.

Which maybe it was. The Federalists were just politicians, and arguably no better than you would expect from the breed.

[ReaderY]

On the pastor at the city council in Florida, the whole point of Town of Greece v. Galloway is that the speech in these invocations isn’t the government’s. Government needn’t limited what’s said in legislative prayer because it CAN’T. So prayer doesn’t have to be nonsectatian, and there’s no problem with pastors talking about Jesus etc.

But doesn’t the same logic that says pastors can do prayer that’s as sectarian as they want (because it’s their prayer and not the government’s) also mean pastors can talk politics and criticize the legislators (because it’s their prayer and not the government’s)?

[Gandydancer]

You’re right that that is incoherence. But the idea that “religion” ought to get special protection is anyway idiotic since what is or is not religion cannot be defined without privileging one belief over another. It’s politics all the way down.

[Gasman]

Pretextual traffic stops “lead to the unnecessary and tragic ending of human life. Here, a child threw a candy cane out the window. Twenty-five minutes later, the driver, her father, was dead.” And, says the Fifth Circuit, since video of the shooting doesn’t clearly contradict the driver’s estate’s version of events, granting qualified immunity to an Arlington, Tex. Officer was inappropriate.

From reading the linked court decision, the dead guy might have been correct in his assessment that he had no outstanding warrants, or maybe he was lying, or maybe he he honestly did not know that the warrants existed. Nevertheless, continuing to argue with the cops, ultimately attempting to drive away with an armed cop leaning inside the open passenger door is a bad idea.
It takes two parties to escalate a situation, and this guy did most of the escalation.
It’s why people move away from you on the group-W bench when the crime is littering.