Short Circuit: A Roundup of Recent Federal Court Decisions

Pit bull bans, community sensitivity, and criminal defamation.

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

Last summer, after Chasidy Decker talked to the Idaho Statesman about a Meridian, Idaho code enforcement officer's threat to fine her $1k per day if she didn't move her perfectly lovely, perfectly safe (and perfectly connected to septic) tiny home on wheels, the officer cited her and her landlord for piddling parking and vehicle violations, ignoring the very same violations (and also other homes on wheels) on neighboring properties. What a bully! So we're pleased to report that this week a state district court ruled that Chasidy and her landlord's challenge to the city's tiny home ban—and the officer's retaliation over her speech—can move forward. Learn more here.

• Defamation can be prosecuted as a criminal misdemeanor in New Hampshire. Which is inconvenient for an Exeter man, who is arrested over his online commentary in 2012 (accusing a life coach of road rage and heroin dealing) and again in 2018 (posting (inter alia) that a police officer was "the dirtiest most corrupt cop I have ever had the displeasure of knowing" and that the officer's daughter was a "prostitute"). First Circuit: The defamation statute doesn't violate the First Amendment and isn't unconstitutionally vague. Concurrence: On the First Amendment question, we're bound by Supreme Court precedent, but let's not forget that "these laws have their genesis in undemocratic systems that criminalized any speech criticizing public officials." (An interesting long-form piece on "Bob Exeter" is here.)
• Faced with a measles outbreak, officials in Rockland County, N.Y. issue an emergency declaration barring unvaccinated minors—except those with a medical exemption or documented serological immunity—from places of public assembly, including schools. Members of the county's Hasidic Jewish community sue, alleging that the elimination of the religious exemption violates the Free Exercise Clause. Second Circuit: And maybe it does; a jury could decide that the order was motivated by anti-religious animus.
• Does it violate equal protection for the Pennsylvania Department of Corrections to treat sex offenders differently from other parolees due to "community sensitivity"? District court: That's so unfair it violates the rational-basis test. Third Circuit: "[N]ot all crimes are alike." Reversed.
• Third Circuit (2018): Challenges to FERC-approved pipelines have to be brought as appeals from the FERC regulatory process, so this group of nuns that wants to invoke the Religious Freedom Restoration Act are totally hosed. Third Circuit (this week): These same nuns remain hosed.
• Twenty-six-year-old driver has schizophrenic episode after his car is run off the road near Santee, S.C. He removes his clothes and clambers on a tractor-trailer, which drives off. Two miles later, the tractor-trailer driver notices the man, calls 911. Upon arrival of police and EMS, man becomes non-verbal. Emergency-medical personnel abuse him and include inaccurate information in the care report. He's left shoeless and shirtless at a closed gas station at around 2 a.m. and found dead (by the same EMS crew) four hours later, struck by a car. District court (Childs, J.): No qualified immunity for the paramedics. Fourth Circuit: Agreed. (The shambolic episode is covered in some detail in this 2019 piece by EMS1.)
• To stop the spread of COVID-19, Columbus, Miss. ordinance shuts down tanning salons—but not liquor stores—for seven weeks in the spring of 2020. Fifth Circuit: It might be the case that people spend more time in tanning beds than liquor stores, so there might be more virus spread in the former—and that's all that the gov't has to say to win, thanks to the rational basis test. Concurrence: "If we're going to recognize various unenumerated rights as fundamental, why not the right to earn a living?" SCOTUS, please fix, perhaps by taking up this IJ case.
• Allegation: Duncanville, Tex. officer shoots man suffering from severe mental health episode in the stomach as he reached for a phone despite the man's mother assuring officers there were no guns in the home (and the chief of police, in turn, assuring her that the officers wouldn't hurt her son). Three days before the statute of limitations expires, the man sues the officer as John Doe. District court: Which didn't give you enough time to do discovery and identify him. Claims against the now-known officer dismissed. Fifth Circuit: No suing the chief either.
• After Cincinnati police misconduct investigator allegedly selectively starts and stops videorecording during officer interview, officer and his union rep seek to make their own recording. Does the First Amendment give officers the right to record in such circumstances? Sixth Circuit: No, and anyway the city now requires investigators to record the entirety of such interviews.
• Did Michigan officials waive their Fifth Amendment right against self-incrimination when they testified in pretrial depositions in a civil suit arising out of the Flint Water Crisis? Or is this case moot? Sixth Circuit: No and no (Griffin, J.); No and yes (Thapar, J.); Yes and no (Moore, J.).
• Taking a page from the city of Reno, Nev., the city of Ashdown, Ark. sues Netflix and Hulu in an attempt to shake franchise fees out of them. And, taking a page from the Ninth Circuit, the Eighth Circuit holds that the state's Video Service Act does not create a private right of action. Case dismissed.
• In 2005, Council Bluffs, Iowa officials banned pit bulls (the dogs, not Mr. 305), which to this day has some residents barking mad. But they had a ruff time of it this week in the Eighth Circuit, which found the bark of plaintiffs' equal protection and due process arguments was worse than their bite. Surely though, other people who care about this pet issue won't bow(wow) out of challenging these types of laws in other circuits.
• California tax authorities demand that online merchants who participate in the "Fulfilled by Amazon" program collect and hand over sales taxes for sales made through Amazon. Merchants sue in federal court, raising various constitutional and statutory claims. Ninth Circuit: Yeah, you can't do that because of the Tax Injunction Act. Pay up and then sue in state court for a refund.
• TSA employee is approached by an FBI agent who tries to recruit him as a confidential informant. After declining the offer, the TSA agent is surprised to find his security clearance revoked. Because the clearance is a prerequisite for the job, he's forced to quit. He sues. Ninth Circuit: But all of his claims fail. Among other things, he has no right to a security clearance and, hence, no protected liberty interest in working a job that requires security clearance.
• Allegation: Fort Collins, Colo. woman is thrown to the ground by a police officer twice her size when she resisted his grip while he investigated an altercation at a bar. Tenth Circuit: The force was excessive. But it wasn't clearly established that an officer couldn't use a takedown maneuver on a person resisting arrest, so he gets qualified immunity.
• Allegation: Woman checks into the University of Kansas Hospital Emergency Room complaining of shoulder and jaw pain. Radiology technician straps her down for an MRI. She falls asleep. She awakes to notice the tech touching her breasts and putting his mouth over them. Hospital: As an arm of the state, we get sovereign immunity. District court: The hospital offered no evidence that it actually is an arm of the state, but I'm gonna do its work for it and I conclude that it is. Case dismissed. Tenth Circuit: The burden is on the hospital, and, since they didn't even try to meet it, case undismissed.

Back in the first weeks of the pandemic, Waylon Bailey cracked a joke on Facebook about COVID-19, a Brad Pitt zombie movie, and sheriff's deputies in Rapides Parish, La. being authorized to shoot "the infected" on sight. No one was alarmed. No one called the sheriff to complain. And yet, deputies came to Waylon's house with guns drawn, handcuffed him, and took him to jail. An obvious First Amendment violation! But this summer a federal district court dismissed Waylon's suit, relying on a pair of long-discredited Supreme Court cases that permitted the gov't to imprison critics of World War I to grant the officers qualified immunity. Now IJ is appealing. Read all about it over at The Washington Post.

Comments

[Jerry B.]

“TSA employee is approached by an FBI agent who tries to recruit him as a confidential informant. After declining the offer, the TSA agent is surprised to find his security clearance revoked. Because the clearance is a prerequisite for the job, he’s forced to quit. He sues. Ninth Circuit: But all of his claims fail. Among other things, he has no right to a security clearance and, hence, no protected liberty interest in working a job that requires security clearance.”

What?

Looks like the 9th continues to give the government a pass.

[Archibald Tuttle]

It seems that very many of these seeming failures of the courts are matters that should never have come to court.

If the FBI agent retaliated against someone for refusing to be a CI, the agent should be fired or otherwise punished by his superiors. So the failure in court was preceded by failure in the FBI.

[Krayt]

I wondered that, too. Every such lawsuit is for rights violations. Which is fine, but they are usually presented in the way most favorable to the plaintiff, which is to say the lawyer’s 30% pocket, and conveniently leave out legal comeuppances.

Also, do cops have deep pockets? Police unions have insurance to cover it? They then get to sue through the officer to hit the deep pockets of government?

[Michael D]

That presupposes the FBI would not protect their own if such a complaint were lodged. I, however, do not accept the FBI as an agency which operates under any legal, moral or ethical codes but individual agents MIGHT. That is, or ought to be, an unacceptable way for any agency with such vast power as the FBI to operate.

However, after decades of operating in just such a manner and having a major anal probe of its operations in the 70s (Sen. Frank) Church Committee coming to the same conclusion and trying to reign in their activities, we can see from cases such as the one described by Mr. Tuttle, and countless FISA violations dating back to the 1980s that nothing has changed in the culture and procedures of the FBI.

Anyone who believes it should be maintained in its present form deluded themselves with the belief that reform is possible. Reviews of IG reports dating back 10, 20, 30 and 40 years ago reveal that reform and oversight have changed nothing.
#AbolishTheFBI

[SomeGuy 2]

I don’t think this should be the state of the law, but the Ninth Circuit makes a pretty convincing case that it is the state of the law. Every other court to consider 1981 has read it the same way. Seems like a statute Congress should revisit.

[Noorondoor]

I think people do have a right to security clearance in a job that requires it assuming that there aren’t any objective reasons to deny it to them.

[David Nieporent]

Do you have any constitutional or statutory argument, or is that just an aspirational statement?

And do you really think that a security clearance — the ability to access the most sensitive national security information the government has — is something that someone has a presumptive right to? (Do you think a court would ever rule that way? It’s one thing to argue that the government can’t deny it for improper reasons, but to argue that it can’t deny one without proving it has good reasons? That’s a stronger right to a clearance than to the underlying job!)

[Dr. Ed 2]

Does he have a right to the job notwithstanding?

While he may not have been entitled to due process on the security clearance, he would have been on the termination at which point the TSA would have to defend that decision.

Instead he quit. Why?

[David Nieporent]

While he may not have been entitled to due process on the security clearance, he would have been on the termination at which point the TSA would have to defend that decision.

What? No, none of that is right. If the job requires a clearance and he doesn’t have one, he can be let go for that reason alone. He cannot collaterally attack the denial of a security clearance in his termination appeal. That’s the whole point of this case.

[Nige]

I suppoose it’s possible whatever made the person a likely informant also made them a security risk, but that may be giving the FBI too much credit.

[Bubba Jones]

Measles doesn’t care why you are unvaccinated.

Why would you have exemptions?

[Rev. Arthur L. Kirkland]

” Measles doesn’t care why you are unvaccinated. Why would you have exemptions? ”

Gullibility, ignorance, superstition, tribal loyalty, antisocial tendencies . . .

None of which is a long-term winner at the modern American marketplace of ideas, thank goodness.

[Currentsitguy]

I can see if you demonstrate immunity or have a history of adverse reactions to vaccinations.

[Rev. Arthur L. Kirkland]

Good point. Recognizing genuine medical exemptions — based on science and facts, not superstition, delusions, and fairy tales — is the only sensible course.

[FivebySixThree]

having an exemption because you are at risk if you do or do not should be grounds to dismiss any objection to other exemptions or acknowledge that such people just need to isolate until the event is over.

I never understood the medical exemption giving people free association during an event which puts them and others at more risk yet locking down anyone who objects for any other reason

[Zarniwoop]

I can see if you demonstrate immunity or have a history of adverse reactions to vaccinations.

Which the order already allowed; that’s what “demonstrated serological immunity” means:

barring unvaccinated minors—except those with a medical exemption or documented serological immunity

(Emphasis added)

[Frank Drackman]

Same reason we don’t require vaccines for Plague or Typhoid. And how many peoples died of Measles in the last 10 years?? Fewer than died in Ted Kennedy’s Oldsmobile,

Frank

[StellaLink_the dog]

According to the CDC, the last death caused by measles in the US was in 2015. So, Mengele, you’re wrong again.

Before 1963, when the vaccine was developed, about 500 people per year died of measles.

[Nige]

Which puts the level of deaths by covid deemed acceptable in perspective.

[Soronel Haetir]

Re: Liquor stores vs tanning salons, one difference is that there is a segment of the population for whom lack of alcohol is actually a serious health risk. I am unaware of any such segment for which lack of artificial tanning poses comparable danger.

[Currentsitguy]

I suppose you could aways frame it as you are not selling tans, you are proving a necessary health service by inhibiting Rickets.

[Frank Drackman]

Tanning is also a treatment for Psoriasis, hey, not everyone can get into medical school (or use WebMD)

[MatthewSlyfield]

Or seasonal affective disorder.

[Commenter_XY]

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

I just want to thank that bunch of people at the Institute for Justice for all the chuckles I have enjoyed reading Short Circuit. This is by far my absolute favorite regular contribution to VC; you IJ guys and gals are great.

[Michael D]

Agreed

[Rev. Arthur L. Kirkland]

For clingers, they’re not half-bad.

[Absaroka]

“TSA employee is approached by an FBI agent who tries to recruit him as a confidential informant. After declining the offer, the TSA agent is surprised to find his security clearance revoked.”

If I’m reading the case right, the gentleman in question was a Delta Airlines employee (not a TSA employee), whose job required clearance from the TSA, which they revoked for reasons the TSA won’t specify. Which kinda stinks, IMHO.

[Frank Drackman]

FBI’s gone to the dogs since J. Edgar passed in 72′, best course is to put her out on an Ice Floe, transfer the agents to something more useful, giving reach arounds at TSA checkpoint in Muncie IN

[Michael D]

RE: New Hampshire criminalizing defamation.

In the year 2011, Human Rights Committee of the International Covenant on Civil and Political Rights called on states to banish criminal defamation on the grounds that it harasses and intimidates citizens.

My view: it is total BS. I would abolish all defamation laws but criminalizing defamation is a gross abuse of power and the law. The only criminal laws I can morally support are those that protect persons, property and liberty from intentional, knowing and reckless harm. Notice, I did not mention negligence.

[Ken Arromdee]

In the police versus authority case, it’s unreasonable for the judge to claim that “Other mechanisms exist for dealing with the risk of doctored interviews after a report becomes public, most notably the reality that the officer and Hils can say as much and Hils can use his notes to show as much.” By that reasoning, nobody needs a right to record any public official, under any circumstances.

It’s true that there are ways to deal with doctored interviews without a recording–but they’re *worse* than dealing with them when you do have a recording. Why does it only matter that there are ways to deal with them at all, but worse and better don’t matter?

(Also consider that “doctored” can just mean “claims to have lost the interview”. Yea, you can “say as much” by claiming that the contents of the missing interview would help you. That would, of course, be useless.)

[Dr. Ed 2]

As to the naked man and the MRI molestation, why doesn’t medical malpractice come in here? IANAA but I never heard of a blanket exception.

[rloquitur]

“Fort Collins, Colo. woman is thrown to the ground by a police officer twice her size when she resisted his grip while he investigated an altercation at a bar. Tenth Circuit: The force was excessive.”

So, what are a person’s rights when confronted with excessive police force–do they have the right to defend themselves?

[ReaderY]

On the 2nd Circuit vaccination case, the Park concurrence expresses the maximalist interpretation of Alito’s position on the Lukumi Bablo Aye anti-religious animosity exception to Smith. Giving any kind of excemption, and particularly medical exemptions, without also giving religious exemptions is itself evidence of anti-religious animosity. Not only does this override Smith, it also overrides pre-Smith compelling interest analysis. Since anti-religious animosity is obviously not a compelling state interest, its presence requires concluding that no compelling state interest can be applicable.

I will repeat a hypothetical I gave before.

Jihadi John sues. He claims that the presence of a self-defense exeption to the murder statutes reflects anti-religious animosity. Permitting people to kill for self-defense reasons, but not religious reasons, makes religion less favored than self-defense. And not giving religion most-favored state interest status is itself, ipso facto, evidence of anti-religious animosity. Accordingly, the murder statutes must be struck down to the extent they purport to interfere with Jihadi John’s constitutional right to worship God by killing infidels.

After all, since religious animal sacrifice is protected by the Constitution under Lukumi Bablo Ayr, why should religious human sacrifice be discriminated against? It’s just as old a religious form of worship. Why should animosity against it be permitted under the Constitution?

[ReaderY]

That is, the rationale underlying the self-defense exception – that risk to ones own life life trumps a requirement not to harm others – is essentially the same in both cases.

I understand that medical exceptions encompass more than just risk to life itself and the set of permissable medical exceptions would need to be narrowed to make the two cases more comparable. However, Park’s concurrence doesn’t seem to depend on the scope of permissable medical exceptions. It seems to be based on a blanket “if you give medical exceptions, you must give religious exceptions.”

This would seem to suggest that life preservation simply isn’t a good enough reason to get the state out of the religious animosity vise.

I suspect that considerations like this hypothetical, and in particular its implications for issues like abortion, are what are driving Barrett and Kavanaugh to distance themselves from Alito’s position.