Short Circuit: A Roundup of Recent Federal Court Decisions

Hauling timber, planting drugs, and barring bologna.

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: a pretextual traffic stop turns deadly and standing to sue under the ADA.

• Beauty may only run skin deep, but the circuit split on the interplay between the First Step Act and "compassionate release" is getting close to the bone. Add the D.C. Circuit to those holding that the Act's changes to "stacking" may not be considered for whether a prisoner who was sentenced before the Act may now qualify for compassionate release. (The Ninth Circuit is on the other side. You can hear our discussion of that case and this issue on last week's edition of the podcast.)
• Last year, Maine legislators barred motor carriers and landowners owning at least 50k acres of forest land from employing non-residents to haul timber in-state—lest Canadian truck drivers depress the wages of in-state timber truckers. First Circuit: Enjoined! Employers must run a gauntlet to secure H-2A visas for the truckers from the feds, and any additional state regulatory burdens are probably pre-empted. (And there's no need to reach the equal protection arguments, which the district court found persuasive.)
• In flagrante delicto: In 2009, man is caught in the act of Philadelphia home invasion, but his trial does not commence for over four years. A violation of his fundamental right to a speedy trial? Applying the requisite four-factor test, the Third Circuit says yes; release him forthwith.
• Haitian opposition party activist flees to the U.S. after he receives death threats and his house is burned down by, he says, members of the government. But his lawyer fails to present easily obtainable and relevant evidence, and he's ordered removed. Third Circuit: Vacated. He received ineffective assistance of counsel. Concurrence (via Ambro, J.): The immigration judge messed up as well.
• Allegation: To interdict suspected marijuana possessor, phalanx of Harris County, Tex. officers jump curb, drive vehicles through park that is crowded with families. The suspect quits the park but eventually stops and raises his hands. Without warning or command, an officer tases him. He falls and hits his head on the asphalt, suffering a traumatic brain injury. After which, though he's writhing on the ground in pain and bleeding from the ears, nose and mouth, the officer tases him again. Fifth Circuit: Don't run from the police.
• In the latest "give me a refund for a lousy Spring 2020 educational experience" case, the Fifth Circuit says that some Tulane students might have claims for breach of contract, unjust enrichment, and conversion under Louisiana law resulting from the university shutting down in-person services due to the COVID-19 pandemic.
• Is it a Fifth Amendment "taking" for Oakland County, Mich. officials to take title to a woman's ~$300k home to satisfy a ~$22k tax debt—and refuse to refund her any of the difference? Sixth Circuit: Quite possibly. And what we know for sure is that the government can't circumvent the Fifth Amendment simply by "exclud[ing] from its definition of property any interest that the state wishe[s] to take." The takings claim may proceed.
• Sixth Circuit (last month, unpublished): A Colerain Township, Ohio woman doesn't have standing to challenge the local police department's prohibition of posting "inappropriate" comments on its Facebook page because her Facebook comments were deleted for totally different reasons. Sixth Circuit (this week, published): We now deem this opinion suitable for publication.
• Pulaski County, Ky. constable, an elected official, planted evidence, lied on warrant applications, threatened suspects, and kept heaps of meth in his house (for planting to get false arrests). He's convicted and sentenced to (a below-guidelines) 140 months. Sixth Circuit (via Sutton, C.J.): Conviction and sentence affirmed. Concurrence (via Sutton, C.J.): I'm not sure that planting drugs counts as distributing them under the statute. But the constable didn't raise quite that argument, so we'll leave it for another day.
• Spooky! On Halloween 2018, two St. Louis men distributed bologna sandwiches and bottled water to the homeless without a permit. Police cite them for violating the city's food code despite their protestations that they're fulfilling a religious duty. Eighth Circuit: The ordinance does not run afoul of the First Amendment.
• Allegation: Inmate at Atwater, Calif. federal prison is beaten up after a guard tells other inmates he's a snitch and offers a bounty to assault him. An Eighth Amendment violation? Can't say, says the Ninth Circuit; except for some exceptions not relevant here, you can't sue federal officials for violating the Constitution.
• Under California law, professional door-knockers and signature gatherers are regulated as employees with all the attendant benefits, while door-to-door salesmen are regulated as independent contractors. But wait! Isn't there a First Amendment problem with imposing additional burdens on employers just because their workers tout candidates and ballot initiatives instead of vacuum cleaners and knife sets? Ninth Circuit: Nope, the law distinguishes based on the work they do. Dissent: Which you determine based on what they say.
• Until recently, the state of Oregon automatically suspended the driver's licenses of folks with unpaid traffic debt, which has the rather perverse effect of making it even harder to pay off that debt. But if the state can't jail debtors who lack the ability to pay, can it nevertheless take their transportation to and from work? Ninth Circuit (over a dissent): Yes it can, though Oregon repealed this law while the case was ongoing. (IJ filed an amicus brief in this case.)
• Oregon prisoner has a grievance: Prison officials improperly confiscated mail from his lawyer. He wants to complain, but the prison has a policy of not entertaining more than four simultaneous grievances from any prisoner. To proceed, he has to dismiss one of his pending grievances and forgo any remedy on it. Ninth Circuit: Which means that administrative remedies were unavailable to him, and he can come to federal court.
• Florida couple marries. Husband freezes sperm, dies. Wife later conceives through in vitro fertilization, gives birth to child. Does the child qualify for child's insurance benefits under the Social Security Act? Well, it depends on whether Florida law lets the child inherit a share of the father's intestate personal property. Eleventh Circuit: What a chewy, super-interesting question for the Florida Supreme Court to sort out. Certification!
• And in en banc news, the Fourth Circuit will not reconsider its decision that a trans woman can sue Fairfax County, Va. prison officials under the ADA for failing to accommodate her gender dysphoria.
• And in more en banc news, the Fifth Circuit will reconsider its decision (and, one expects, its precedent) requiring female Dallas jail officers to be fired, demoted, or otherwise adversely treated before they can challenge a policy whereby they cannot have full weekends off work but male officers can.
• And in further en banc news, the Ninth Circuit will not reconsider its decision that the Board of Immigration Appeals must send noncitizens notices to appear that include both the date and time of their removal proceedings, or else any in absentia proceedings are invalid.
• And in additional en banc news, the Ninth Circuit will not reconsider its decision that a Muslim inmate did not have a right under RLUIPA to be housed exclusively with other Muslim inmates in order to avoid harassment by non-Muslim inmates during his daily prayers.

Comments

[John F. Carr]

From the meth case: "The court concluded that 'importing the full weight of that meth' would overstate Wallace’s culpability given the Guidelines’ focus on the harm done by methamphetamine to users, not the harm from planting it to secure false arrests."

[Davedave]

"The pre-sentence report recommended a two-level enhancement for Wallace’s possession of a dangerous weapon during a drug trafficking crime."

It's glorious throughout.

[Longtobefree]

"Don't run from the police."

Damn right! Stand your ground and go out in a blaze of glory (with your dog).

[Longtobefree]

"Ninth Circuit; except for some exceptions not relevant here, you can't sue federal officials for violating the Constitution."

Say what??!!!

[LawTalkingGuy]

Bivens case law is so stupid. The exceptions appear random. I mean they’ll probably overturn the whole thing, which would be even worse, but still it’s all so dumb.

[MatthewSlyfield]

Congress could fix that by amending section 1983 to include federal officials.

[LawTalkingGuy]

But they won’t and they’ve known how circumscribed bivens has been for forever.

[Noscitur a sociis]

They are random, because they're completely made up in the cases that happened to arise before we got enough justices who realized that they shouldn't do that.

[LawTalkingGuy]

Shouldn’t do that implies this is based on careful and cautious constitutional thought. It’s not.

They’re perfectly willing to create insane equitable or other remedies that dismantle whole parts of government based on contrived constitutional reasoning in other contexts.

But somehow it’s careful consideration that prevents them from the long established common law concept of fashioning damages remedies for torts?

What’s really happening is that they simply don’t care about the victims of law enforcement constitutional violations. If they did, they’d make something up like they do in every other case. Legal interpretation is ultimately about values and their values suck and we might as well admit it.

[mse326]

They are right as to what the law is. That is straight up SCOTUS precedent. That isn't a decision they made

[bevis the lumberjack]

“you can’t sue federal officials for violating the constitution”. WTF? What chuckleheaded judge plucked that out of thin air?

Government courts protecting their government bros……

[Jason Cavanaugh]

"And in more en banc news, the Fifth Circuit will reconsider its decision (and, one expects, its precedent) requiring female Dallas jail officers to be fired, demoted, or otherwise adversely treated before they can challenge a policy whereby they cannot have full weekends off work but male officers can."

What?!

How is this anything other than discrimination based on sex or gender?

[John F. Carr]

Precedent requires a plaintiff to prove "adverse employment action", not merely "discrimination". Under Fifth Circuit precedent that includes "only ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating". Compare the decisions that required employees objecting to mandatory COVID vaccination to be fired or disciplined before they could sue over the vaccination rule.

Maybe the Fifth Circuit will change its mind.

[apedad]

Seems to me not getting equal time off is a compensation issue.

[Rossami]

But they were getting equal time off - in aggregate. They just couldn't get the same pattern of time off.

[bernard11]

But the pattern is an important part of the benefit.

Try this:

You get two weeks (ten days) of vacation every year, but you can't take more than one day in any month. Not discriminatory?

[LawTalkingGuy]

Title VII requires an employee suffer adverse employment action as a result of the discrimination. The fifth circuit was interpreting that to mean “ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating,“ The panel opinion requested the en banc court overrule that precedent because it’s inconsistent with the text and the decisions of other circuits. These courts hold that Adverse employment actions affect: “the terms, conditions, or privileges” of employment.

[Longtobefree]

To make up for past instances when men had to work weekends, women must work weekends until parity is reached.

[Gandydancer]

O'Connor said 30 years or so, didn't she?

[Bubba Jones]

How does a modern big city police department defend this with a straight face?

[Michael D]

Only 2 cases arising from the failed and less than useless drug war?

[Rossami]

I count at least three.
- The DC case was about "stacking" but the underlying crime was drug-related.
- The 5th circuit case
- The crooked constable case

Can't be sure on the four inmate rights cases (snitch, confiscated mail, gender and RLUIPA). The cases themselves were not directly related to drug war issues but given prison statistics, it's a reasonable guess that two of them would not have been in prison in the first place but for the "failed and less than useless drug war".

[Michael D]

Oh, yes! I missed the first. Thanks

[tkamenick]

"Without warning or command, an officer tases him."

That's completely false. From the opinion - "Garduno [the officer] warned, “I’m going to tase you.” As to the rest of it, I'll just drop this from the opinion":

Garduno made the split-second decision to deploy his taser after Henderson had led him on a long chase by car and by foot and was still unrestrained. Henderson admits he suddenly stopped running, turned toward Garduno, and moved his arms in a manner that suggested to Garduno that Henderson was reaching for a weapon. This is a far cry from the handful of instances where we have recognized an “obvious case.

[MatthewSlyfield]

That might justify the first use of the taser, but what about zapping the suspect again after he’s on the ground bleeding?

He falls and hits his head on the asphalt, suffering a traumatic brain injury. After which, though he's writhing on the ground in pain and bleeding from the ears, nose and mouth, the officer tases him again.

[Noscitur a sociis]

scene. Garduno claims Henderson continued to struggle while on the ground and resisted being placed in handcuffs. So Garduno “dry” tased him a final time.

[David Nieporent]

What Garduno claims is irrelevant on his own motion for summary judgment. (Conveniently, the body cam footage only starts after this tasing!)

[Gandydancer]

From tka's comment, "From the opinion [which I haven't read] – “Garduno [the officer] warned, “I’m going to tase you.” That sounds like a statement of undisputed fact, not a Garduno "claim".

So the podcasters are lying. Which, after what I recall to be their misrepresentations in the traffic stop case, I have no difficulty believing.

[Gandydancer]

If the warning occurred as Nieporent describes it below, shame on tka.

And the lying coverage of the traffic stop case (the one where the guy was shot resisting arrest after his daughter threw a "crack pipe" out of the car window) was a different podcast by these folks, or a different subset of them, that I'd also just listened to.

[David Nieporent]

It's the fifth circuit, whose opinion of section § 1983 is "Fuck plaintiffs. If cops want to violate the constitution, more power to them." It's the same court that had to be summarily told by SCOTUS a few years ago that they can't just grant summary judgment to the police when there are disputed issues of fact.

We get the obligatory footnote drop: "Hey, maybe we should ignore our own precedent to decide if something is clearly established. We won't do that here, but only because we pretend that nothing is ever clearly established anyway."

We get the "Sure, we previously ruled that cops can't excessively tase someone… but in that case it happened on a Thursday, and this case happened on a Wednesday, so it's not clearly established."

We get the "Cops don't have time to think about whether they're using excessive force while they're doing so, so they should never be liable, regardless of what the law says."

We get the we-don't-understand-logic argument that a case that applies an earlier ruling can't be used to prove that the earlier ruling actually existed.

We get the "on the rare occasions when we actually are begrudgingly forced to rule that something violates people's rights, we just don't publish it so that nobody can rely on these cases in the future."

I mean, I don't even know why they bother to pretend that they will ever allow someone to sue a cop. Just openly state a per se rule that all excessive force cases will be dismissed.

[David Nieporent]

That’s completely false. From the opinion – “Garduno [the officer] warned, “I’m going to tase you.”

No, you're taking that quote out of context. The officer chased him, yelling at him to stop, and said "I'm going to tase you [if you don't stop]." Then Henderson stopped, and Garduno tased him anyway. That's what the "without warning or command" refers to.

As to the rest of it, I’ll just drop this from the opinion”:

Garduno made the split-second decision to deploy his taser after Henderson had led him on a long chase by car and by foot and was still unrestrained. Henderson admits he suddenly stopped running, turned toward Garduno, and moved his arms in a manner that suggested to Garduno that Henderson was reaching for a weapon.

Yeah, the problem is that this is both tendentious and lying. "Suddenly stopped" is a dishonest phrase. For one thing, that's exactly what the cop ordered him to do! For another, what the fuck does "suddenly" even mean in that context? As opposed to what, gradually stopping? It's spin designed to make doing what he was supposed to do sound sinister.

The part about "admits he… moved his arms in a manner that suggested to Garduno that Henderson was reaching for a weapon" is a double fabrication. Gardano did not think he was reaching for a weapon — no such weapon existed! — and Henderson made no such admission. In fact, his contention is exactly the opposite, with support from witnesses: that he had his hands raised. The Fifth Circuit is doing exactly what it did to rebuke from the Supreme Court in Tolan: resolving disputed issues of fact in favor of the moving party.

By the way, the key phrase here is "had led him on a long chase … by foot." The cop tased him as punishment for making him run. Every single person on the planet knows that. But we have to pretend otherwise because Fifth Circuit.

[David Nieporent]

I should note that all of the above fabrications by the Fifth Circuit are gratuitous. The lower court (correctly) found that these were disputed issues of fact; it granted summary judgment to the cop on the grounds that the right not to be tased for no reason wasn't clearly established, not on the grounds that the tasing was justified.

[JasonT20]

The clearly established truth is that all cops know better than to tase people when they don't need to, but some do so anyway because they also know that qualified immunity lets them get away with it.

I get beyond pissed off when I see the type of people that whine about having to wear a mask as a violation of their freedom go out of their way to "back the blue" when cops act like this.

[Davedave]

But that's not inconsistent. They're Nazis, and Nazis believe that such things are only done to the untermenschen even while the jackbooted thugs are actually doing it to them.

[tkamenick]

Did you just claim I took the quote out of context and then you completely make something up to add to the quote? That doesn't do much for your argument. Nor do your amazing powers of clairvoyance of what Garduno was thinking or what the whole planet knows.

And to Jason, I'm not "backing the blue", I think QI should be eliminated and cops held far more responsible for their actions. But bad reporting like this doesn't help.

[JasonT20]

Garduno made the split-second decision to deploy his taser...

That is what you wrote after quoting Garduno as warning, "I'm going to tase you." It makes no sense for the cop, after the guy had stopped running, to warn that he is going to tase the guy, but then make a "split-second decision" to tase him in response to something Henderson did with his hands. David's narration of the events makes a lot more sense.

And to Jason, I’m not “backing the blue”, I think QI should be eliminated and cops held far more responsible for their actions. But bad reporting like this doesn’t help.

You were interpreting the events in a way that favored the officer, and it still seems like it might be an inaccurate interpretation of those events. So, whether you intended to or not, you seem to be siding with an officer that should be held responsible for his actions.

[David Nieporent]

Did you just claim I took the quote out of context and then you completely make something up to add to the quote?

No. I read the pleadings and the district court opinion, and then explained the context to you.

Obviously a cop nakedly announcing "I'm going to tase you" would make no sense. What would be the point of that? The entire point of saying that is as a threat: if you don't do X (or if you keep doing X) I will tase you. In this case, it was that he was going to tase the guy if the guy didn't stop running.

We know that, because everyone agrees that the cop yelled it while the guy was still running away, not after the guy stopped.

But the tasing that actually occurred was purportedly about the guy reaching for the nonexistent gun in his waistband. (It is amazing how many times that happens. It's almost like cops are trained to claim that they thought a suspect was reaching for a weapon.) So that tasing was indeed without warning; IJ's summary was accurate.

[BillyG]

Regarding the 9th circus in absentia case. Seems like it gives the incentive to avoid getting mail from ice. If you avoid getting your notice you can't be tried.

[MatthewSlyfield]

Not quite.

The case at issue is one where the immigrant received a notice that was missing statutorily required information. Specifically, the notice did not provide the date and time of the hearing.

The decision here is that ICE can't provide notice in a form that makes it impossible for the immigrant to appear at a hearing and then make in-absentia decisions.

There's no reason to believe from this case that the decision wouldn't go the other way in a case where there was an attempt to provide proper notice but the immigrant was deliberately avoiding the notice.

[David Nieporent]

From the Ninth Circuit’s prisoner grievance case:

Under the umbrella of the Prison Litigation Reform Act (PLRA), correctional authorities can establish and enforce reasonable regulations that balance safety and security concerns with prisoner access to mail and the ability of inmates to grieve concerns. What happens when such regulations, reasonable on their face, operate to actually deny access to the grievance process? The record here shows how well- intended regulations can operate in just that way.x

I’d have written that a bit differently: under the PLRA, prisons can invent arbitrary rules for the sole purpose of preventing prisoner grievances from ever being resolved. The record here shows how ill-intentioned prison officials can manipulate those rules to abuse prisoners without accountability.

[tkamenick]

If courts can have vexatious litigant rules I don't see why prisons can't. But the guy got his remedy anyway, the court is hearing his claim.

[SRG]

Yes, but despite the prison’s rules, not because of them. And vexatious litigants are only so described when a succession of their suits are groundless. Someone who sues repeatedly but successfully is not a vexatious litigant.

[David Nieporent]

This. There's no argument that the prisoner's grievances were frivolous. Nor is a "four at one time" rule — particularly, as here, where that's not in the control of the prisoner — a particularly tailored way to deal with a vexatious complainer.

[SomeGuy 2]

Spooky! On Halloween 2018, two St. Louis men distributed bologna sandwiches and bottled water to the homeless without a permit. Police cite them for violating the city's food code despite their protestations that they're fulfilling a religious duty. Eighth Circuit: The ordinance does not run afoul of the First Amendment.

The city didn't even enforce the tickets, so the distributors were really stretching to say they were injured. Based on the blurb I was thinking that there likely wasn't a constitutional problem, but such a ban is bad public policy. But the guys are handing out bologna sandwiches from a cooler that's not even iced, without a hint they even know how food safety works. This is really dangerous and to the extent they want to play this game they should consider products that don't spoil/need temp control which then likely also wouldn't run afoul of the city ordinance (or even if it does the cops are looking the other way). Safer and also the people they're trying to help can save it for later. Beef jerky, trail mix, roasted chickpeas, that sort of thing.

[Absaroka]

"...handing out bologna sandwiches from a cooler that’s not even iced, ... This is really dangerous"

FWIW, it at leased to be pretty common for mothers to give their kids a bologna sandwich in an un-iced brown paper bag to consume a few hours later.

I agree if you google eating unrefrigerated bologna you find dire warnings; I merely note that it was a very common practice without apparent problems.

n.b. it was in the low 50's that night, which isn't ideal, but also not summer

[gormadoc]

I used to make sandwiches at 5 AM for lunch while detasseling. 90+ degree heat in a bus made it pretty gross but it never seemed dangerous.

[MatthewSlyfield]

Which would you think is less dangerous for a homeless person to eat, intact sandwiches from a non iced cooler or leftovers scrounged from a restaurant’s dumpster?

Or do you think that it's better for them to starve to death if they can't be provided with food that meets restaurant grade safety standards?

[bernard11]

Calls for thought.

[SomeGuy 2]

We're now quite far from what the opinion was about, this is a public policy question not a constitutional one.

Regardless, though, "starving to death" is a fever dream-- homeless are overweight and obese in roughly the same proportion other Americans are. Between public grants, private charity and their grifting skills, the homeless are well fed. Excess mortality comes more from the dangerousness of other homeless, exposure, and of course drugs.

Even given that binary the restaurant food is probably better. It was at least prepared in a kitchen that meets safety standards by professional cooks who know what they're doing. These guys were just throwing prepared meet into a cooler, in a kitchen we can't inspect because it's in a private residence, and if they're using the same cooler each time they do this by this point it's a bacteria colony. Scrounging a discarded to go box would literally probably be better.

And the temptation at this point might be to let the homeless decide but as always they're sticking the people with all their bills. When they get food poisoning from the unsafely stored meat, they're ambling over to a hospital, getting world class medical treatment, and walking away without paying the tab. The people are ultimately footing the bill if they get sick, so of course the people have an interest in preventing them from getting sick. If hospitals weren't required to treat in that scenario, I'd be willing to be a lot more libertarian about this, but we're nowhere close to there. So I think the city is in the right here, at least in the context of the political reality that the homeless routinely inflict their costs upon the general public, so the public can at least do *something* to minimize those costs.

[nekit2010g]

The 2nd Circuit is STILL sitting on the TRO from Judge Suddaby. Obvious case of judicial bad faith.

[ReaderY]

The Constitution gives would-be immigrants no right to enter or remain in the country; entry is entirely at the pleasure of the United States. Congress can cabin that discretion with rules, but it doesn’t have to. Unless a statute explicitly so provides, would-be immigrants have no right to any hearing of any kind , let alone to the assistance of any kind of lawyer in that heating, let alone to an effective lawyer.

[David Nieporent]

Unless a statute explicitly so provides, would-be immigrants have no right to any hearing of any kind , let alone to the assistance of any kind of lawyer in that heating, let alone to an effective lawyer.

I note the lack of any support for these assertions.

I suppose it's probable that a non-citizen/national outside the U.S. has few such rights. (But even then, the person is obviously entitled to the bare minimum due process right to a hearing to determine whether the person is a non-citizen/national.) But people in the U.S. are entitled to due process, always. (The 5th amendment applies to persons, not merely citizens.)