Short Circuit: A Roundup of Recent Federal Court Decisions

Veterans' benefits, Robert's Rules of Order, and Floribama.

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: Earlier this year, the Eighth Circuit held that the First Amendment contains no protections against sham, bogus retaliatory investigations and granted qualified immunity to a child welfare worker who did her best to ruin the lives of an innocent family because they criticized Scott County, Mo. officials for hiring the sheriff's deputy who sexually abused their son. Click here to learn more.

• Since being elected mayor of Fall River, Mass. at the tender age of 23, the defendant in this First Circuit case has fallen far—but not so far as to be unworthy of a Judge Selya vocab quiz: chiaroscuro, tenebrous, tamisage, perscrutation, supererogatory, condonation, sockdolager.
• His legal claims may be right or wrong, but, per the Second Circuit, this pro se litigant may not sue under the pseudonym Publius Publicola.
• UConn women's soccer player flips the bird to a TV camera during team's post-game celebration after winning 2014 conference tournament championship. After first being suspended for several games, she eventually loses her academic scholarship. She sues for violations of the First Amendment, Due Process, and Title IX. Second Circuit: Qualified immunity on the constitutional claims, but the Title IX claims go forward. She's put forth sufficient evidence that misconduct by male athletes is not treated nearly so harshly.
• During the pandemic, New York officials released guidelines that contemplated reallocating scarce ventilator machines away from chronic ventilator patients like the plaintiffs to other patients. Gov't: No standing, unripe, moot, outside the statute of limitations. Second Circuit (unpublished): Plaintiffs may be Not Dead Yet, but their suit is.
• New Jersey allows political candidates to include a six-word slogan next to their name on the ballot, but if it references another person or group, the candidate must get that person or group's permission. A First Amendment violation? Third Circuit: No. This case is subject to a more flexible First Amendment test that applies to state regulations of the mechanics of the electoral process. So either get Bernie Sanders' permission to use the slogan "Bernie Sanders Betrayed the NJ Revolution" or think of something else.
• DEA task force agents surveil drug dealer and informant, but yikes! An unknown third party enters the suspect's Wilmington, Del. house, exits with suspected contraband, and then eludes a traffic stop. Concerned the party will tip off the suspect, agents conduct "hit-and-holds" at the target's house and stash house. That is, they burst in without a warrant, secure the scene, and then secure a warrant. An unlawful tactic? Third Circuit: No need to consider that. The agents had enough evidence to get a warrant prior to the hit-and-holds.
• Morgantown, W.V. cop pulls over a car for a broken taillight. The cop, concerned about the driver's nervousness, issues a citation and then uses his dog to sniff the car. The dog alerts on a passenger's backpack, which has two guns in it, for which the passenger is later convicted. Fourth Circuit: The cop needed reasonable suspicion to extend the stop for the dog sniff. And the driver's nervousness isn't enough, given that most everyone is nervous when interacting with the police. The dog sniff is suppressed and the conviction vacated.
• In 1993, Grayson, Ky. octogenarian is found by police stabbed to death in her bed. Next to her body is a drunk man, covered in blood, and possessing her jewelry and a butter knife with an oddly twisted tip. Prosecutors argued that he used the twisty knife to unscrew 17 paint-covered screws on a storm window to break into her home. The jurors decided to test this theory by using the twisty knife to try and unscrew and remove a cabinet door in the deliberations room. Satisfied, they find the man guilty and sentence him to death. Sixth Circuit (over a dissent): Jurors definitely can't experiment like that. New trial forthwith or let him go.
• Pretrial detainee at Coffee County, Tenn. jail says guards choked, tased him without a good reason. Guards says he tried to fight them. Oops! Despite the detainee's request, the video is not preserved. Jury: We're going to say one guard used excessive force. We award you $1. Detainee: Surely $1 is not reasonable. Sixth Circuit (unpublished): Yeah, no, it is.
• Sixth Circuit (unpublished): The process for figuring out whether an area will be listed on the National Register of Historic Places is "reminiscent of a dystopian novel," but being listed on the Register doesn't seem to harm these particular property owners right now, so their case is dismissed.
• Speaking of dystopian novels, in 2019, Detroit police commissioner breaks with Robert's Rules of Order and speaks out of turn at Board of Police Commissioners meeting, criticizing the proposed use of facial recognition technology to identify defendants. Told he'll be removed, he continues to speak and is dragged out (in violation of Robert's Rules, which require a commission vote first). Unlawful retaliation for his speech? Sixth Circuit (unpublished): No, the officers had probable cause to believe he resisted arrest and violated a law against disturbing meetings.
• Alcoholics Anonymous members famously follow a 12-step program to treat their addiction. Not-so-famously, the Air Force "follows an 11-step religious-exemption process" for those who want out of its COVID-19 vaccination mandate. Only 135 of the 9,754 applications were granted—and these were granted only to those who were planning to leave the service within a year anyway. Does this violate the Religious Freedom Restoration Act? Sixth Circuit: It likely does. Serenity now, the class-wide injunction is affirmed.
• Indiana law requires abortion providers to dispose of fetal remains by either burial or cremation unless the woman takes possession of the remains, in which case she may dispose of them as she wishes. Two women who had abortions object that the requirement for burial or cremation implies the personhood of a pre-viability fetus, while two abortion providers object to telling patients about their statutory option of taking possession of the remains. Are these First Amendment violations? Seventh Circuit: Units of government are allowed to express opinions, and physicians can be required to inform patients of relevant facts related to medical procedures. Case dismissed.
• Anoka County, Minn. had an unwritten policy under which all foreign-born persons booked in the county jail would be detained until the county heard back from ICE on whether ICE wanted to take custody. Eighth Circuit: This is an exceptionally dumb policy, not least because it'd apply to foreign-born icons Bruce Willis and Arnold Schwarzenegger. At the same time, the policy is also an exceptionally good example of national-origin discrimination. Which triggers strict scrutiny. Which the policy flunks because it is exceptionally dumb.
• Uber users sue the ridesharing service over a fee. In a $32 mil settlement, the class will receive an average of a buck and seven cents, and a majority 35 cents or less. Meanwhile the plaintiffs' lawyers receive a separate award of over $5 mil. Was the fee award part of an unlawful "coupon settlement" under the Class Action Fairness Act? Ninth Circuit: No, because some users could get their award in cash (even though less than 5% did).
• No reasonable jurist could find, says the Tenth Circuit (unpublished), that a court order telling a woman to stay away from her ex is so restrictive that she is "in custody." So her habeas corpus claim was properly tossed. But it was not proper to toss one of her other claims—challenging the constitutionality of the Colorado statute that authorizes such protection orders (rather than the protection order itself)—on Rooker-Feldman grounds.
• Courthouse News Service is back at it, suing state-court clerks for failing to provide quick enough access to newly filed civil complaints. District court: Statewide, New Mexico courts must provide non-confidential complaints no later than five business hours after receipt. Tenth Circuit: We agree with the district court that the state courts' inevitable Younger argument is a non-starter. But the district court's bright-line five-hour thing doesn't give the New Mexico courts enough flexibility (e.g., to account for clerks taking sick days). The district court's preliminary injunction is vacated and should be modified to accommodate extraordinary circumstances or a substantial-compliance standard.
• Remember that "special master" appointed to oversee the documents seized at former President Trump's country club home? Eleventh Circuit: He's not so special anymore.
• Since 1873, veterans' benefits have been untouchable by creditors, tax authorities, and judicial orders. But how about Florida prison officials, who took money from an inmate's account (funded by transferring his VA benefits into the account from an outside credit union) to satisfy debt that he incurred in prison? Eleventh Circuit (over a dissent): Who knows. All we can say is that the prison officials are entitled to qualified immunity and the inmate lacks standing to challenge a state rule directing prison officials to leave the money be only if it's deposited directly by the VA into the inmate's account.
• Jackson County, Fla. sheriff's deputy pulls driver over for swerving and then, ticket written but not delivered, orders the driver out of the truck so a drug doggie can have a sniff. (No drugs found, but the ensuing physical altercation results in obstruction charges for the driver.) Eleventh Circuit: No qualified immunity for prolonging the stop. The deputy should have cut the driver loose after writing the ticket. Partial dissent: Heck, I would have denied immunity for the initial stop too. It's not even clear the driver was actually swerving.
• Portions of the Florida Panhandle are lovingly referred to as Floribama, and there's even a regionally famous bar that since 1964 has been called the Flora-Bama Lounge, Package and Oyster Bar. Does the bar have a trademark claim against the Jersey Shore spinoff, MTV Floribama Shore? (Ed.: Laugh if you want, but the beaches of the Florida panhandle are without doubt the most beautiful in the state.) Eleventh Circuit: They do not; this is a situation where the First Amendment trumps the Lanham Act.
• And in en banc news, have you ever wondered about the phrase "en banc"? Didn't it use to be "in banc," like not that long ago? And how do you say it? The answer to the second and third questions can be found in this scholarly work by IJ's Anthony Sanders and stalwart former IJ clerk Matt Liles, forthcoming in Judicature, Duke's scholarly journal about the judiciary.

Friends, this week IJ released the third edition of "License to Work: A National Study of Burdens from Occupational Licensing," a wildly useful report on the burdens of occupational licensing on lower-income Americans. What's changed since the last edition (in 2017)? States actually eliminated a few licenses and made others slightly less burdensome to obtain, which, yes, is only a teeny step in the right direction. But given that states have consistently gone in the wrong direction for the last hundred years or so, it's still pretty neat. Click here to learn more.

Comments

[BillyG]

Morgantown, WV. Since when does a K9 detect guns? Seriously, I thought they were trained for drugs, not gun powder.

Sixth Circuit murder trial. I wonder what these judges would think of the movie “12 angry men”?

[Michael P]

In practice, they're trained to respond to body language from their handlers -- a wonderfully flexible and powerful arrangement that courts somehow endorse.

[BillyG]

I agree with you. They're retrained to sit when commanded once in the field.

[Krayt]

This is called the "Clever Hans" effect, where a horse that could do math was just responding to slight movements by the handler.

Scientists proved it by watching films where they couldn't see the horse nor question, yet get the correct answer just watching the handler.

The handler even need not be a confederate, and honestly believe. This is why double blind studies were developed.

[Zarniwoop]

It took exactly one Google query: yes there are police K9 units trained for gun detection. See, e.g.:

https://www.wesh.com/article/marion-county-gun-detecting-dog/40850115

Woods described her as a gun dog, trained to look for dangerous weapons.

“To detect firearms, ammunition, ammunition cases that have been fired, post-blast residue after a firearm has been fired,” Woods said. “Smokeless powder, gun oils, and gun lubricants.”

[Michael D]

Are the dogs cross-trained to detect both guns and drugs? Was the dog in this case trained for drugs only and found guns or was it trained to detect both?

[MatthewSlyfield]

You never heard of bomb sniffing dogs?

https://science.howstuffworks.com/bomb-sniffing-dog.htm

[BillyG]

Honestly, no. I'm used to machines being used for that. Only ever heard of drugs and people sniffers before.

[Rossami]

bomb-sniffing =/= gun-sniffing. The chemicals, including explosive components are nothing alike.

[MatthewSlyfield]

True, but the basic principal of training dogs to detect gun oil and/or gun powder is the same.

[DavidWH]

There is nothing to distinguish "gun oil" from other lubricating oils.

[Dr. Ed 2]

But, honestly, how many other oil-lubricated items does one have in a backpack?

[Brett Bellmore]

I'm an engineer, my office literally sits overlooking a machine shop, the factory floor has smog eaters to condense the oil mist we're putting into the air in our manufacturing process before it reaches explosive concentrations or rots our lungs. My wife complains of the odor on my clothing.

If I'm on my way home from work I ALWAYS smell of lubricating oil. I can't imagine I'm alone in that.

[Absaroka]

You can of course train dogs to sniff for anything, but to my limited understanding, you generally only train them to search for a single kind of thing: it's a drug dog or a bomb dog, but not both. I'm sure open to correction.

Anyway, I know gun sniffing dogs are a thing, at schools, for example, but it seemed odd for W.V. police to be driving around with one - and they weren't. From the linked opinion:

"Soon thereafter, Officer Helms approached Phillips’s vehicle, asked Phillips to exit the vehicle, and told her he would be leading his canine around the vehicle to sniff for illegal drugs. Id. at 08:25. After the canine indicated that there were drugs in the vehicle, officers performed a full search."

This article says a gun sniffing dog might not be useful because guns are generally legal:

"It goes without saying that a gun dog is merely an investigative tool to locate an item. The basic possession of a firearm, in and of itself, is not illegal per se, like narcotics. Depending upon the laws of each state, guns may be possessed legally by citizens in many ways. Therefore, the deployment of a well-trained gun dog will not necessarily provide law enforcement with probable cause to search, because possession of a gun is not, under general circumstances, illegal."

IANAL, so I'll let folks who are lawyers opine on that.

Aside: While googling, I came across this description of a company that hires out dogs to schools:

"The company has five different dogs capable of detecting four categories of contraband: alcohol, drugs, medication, and gun powder.

In their first ever demonstration for a news organization, Interquest San Diego Regional Manager Tonya Anderson showed NBC 7 how a 1-and-a-half-year-old Australian Kelpie named Astro could zero in on a splash of vodka hidden inside a locker."

[Dr. Ed 2]

A police chief once told me that they get the dog and then it becomes whatever the dog has an aptitude at detecting that they concentrate on. They are not all the same and some can smell some stuff better than others.

[bernard11]

I rather suspect this has more to do with what the dog is trained to respond to, rather than what it can actually smell.

Dogs have a quite incredible sense of smell. I don't think smelling even a splash of concealed alcohol would present any kind of problem.

[Commenter_XY]

Concur. The part of the dog brain devoted to smell is quite over developed in canines.

[Absaroka]

"I rather suspect this has more to do with what the dog is trained to respond to..."

That's my understanding, based on a presentation by one of the local K9 handlers. The dogs have to have certain characteristics - the ability to ignore distractions, and a strong toy drive (you can give a dog with strong toy drive the toy after every successful find in training, but you can't give a food-drive dog a treat every time, or they'd be morbidly obese), etc. But once they pass muster for sniff training, then you pick a fairly narrow range of smells for them to identify. I'm not sure why you can't train one to find a whole laundry list of things[1], but my sense is it isn't done for some reason. Alternatively, I'm all wet :-).

[1]take, for example, the dogs that track people - you let them sniff a piece of clothing from the person you want to find, and off they go; you don't need a dog trained to follow that particular scent.

[MatthewSlyfield]

"I’m not sure why you can’t train one to find a whole laundry list of things[1],"

Because the dog can't communicate that "this is drugs, that over there is a bomb and there is gunpowder residue in the corner."

A dog can recognize and remember an ungodly number of different scents, but the ability of the dog to communicate back to a human handler is limited.

[Frank Drackman]

Its more the limited ability of Humans to understand "Dog"

[MatthewSlyfield]

The limitation is on dog->handler communication. Which end the limitation originates at doesn't really make a difference.

[Ben_]

IJ should stick to helping people go about their productive lives. Stop helping people create a public nuisance by feeding wildlife in city parks where kids should be safe to play.

[MatthewSlyfield]

According to that article she was arrested for feeding people, not wildlife.

[Ben_]

Homeless people are alive. And they are out in the wild.

City parks should be safe for children. Feed bears in the park and children won’t be safe there. Same for feeding homeless in the park.

The woman is welcome to invite the homeless people to her house for dinner. Why doesn’t she?

[Sarcastr0]

The homeless are not wild animals.

Some of them are dangerous or hostile; some are not. Most folks try to treat people, even down-and-out or mentally ill people, like individuals, and don't make blanket statements that they're dangerous to children and don't get food.

[Ben_]

She can feed them in front of your house every day then? (No. Of course not yours.)

You don’t want Americans to be able to safely enjoy a city park. Anything to make the maximum number of Americans' lives worse, you're right there advocating for it.

[Sarcastr0]

Acting like the homeless are inherently unsafe is a tell.

You just think of them as dangerous animals, not people. You have given no evidence you care about them at all.
Think about what that says about you. Do you consider yourself a Christian, by the way?

No, they’re not the most fun to have hanging around. The solution is not cruelty and dehumanization.

[Ben_]

^ Making life worse for as many Americans as you possibly can.

And then telling people they’re evil for not going along with it.

[Sarcastr0]

^ Making life worse for as many Americans as you possibly can.

HOMLESS PEOPLE ARE ALSO AMERICANS.

[Frank Drackman]

Mr. Nancy Pelosi beat her to it

[Dr. Ed 2]

Correia is a piece of work, and while he is entitled to an appeal, ummm.....

[Brett Bellmore]

Um, which of the above has to do with the author of the Monster Hunter novels?

[Dr. Ed 2]

This: "Since being elected mayor of Fall River, Mass. at the tender age of 23, the defendant in this First Circuit case has fallen far—but not so far as to be unworthy of a Judge Selya vocab quiz: chiaroscuro, tenebrous, tamisage, perscrutation, supererogatory, condonation, sockdolager."

[Brett Bellmore]

Ah, a different Correia.

[Dr. Ed 2]

Yes, and this one's chutzpah was jaw-dropping.

[Harvey Mosley]

+1 for the MHI reference. I love all of the ILOH's work.

[Brett Bellmore]

"No need to consider that. The agents had enough evidence to get a warrant prior to the hit-and-holds."

Yeah, so? The 4th amendment doesn't say that you need enough evidence to get a warrant. It says you need to GET a warrant.

[SMP0328]

The court invoked the inevitable-discovery exception to the exclusionary rule. In short, even if the police violated the Fourth Amendment, they would have found the evidence anyway via the later-obtained warrant.

[Brett Bellmore]

Just an excuse to let the police get away with violating the 4th amendment.

The exclusionary rule was created because the courts couldn't penalize cops who violated the 4th amendment, while the 4th amendment violations should be prosecuted as criminal acts, the prosecutors would refuse to. And the courts themselves couldn't prosecute. But they COULD refuse to let the fruit of the violation be used in court, giving the 4th amendment at least some effect.

And then they come up with a BS excuse to take that effect away.

It still remains that they violated the 4th amendment. And the judiciary decided to let them get away with it, to give the amendment no effect in this instance.

[elnurmamedrafiev]

Which is exactly why prosecutorial discretion should not exist. If a private party wants someone prosecuted, and the DA reasonably believes a conviction is probable, he should be required to prosecute.

However, jurors should also be told they have the right to nullify.

Put discretion in the hands of the grand juries and juries, where it belongs.

[DRM]

Nah, eliminating prosecutorial discretion directly is impractical to enforce. The prosecutor can simply declare he doesn't think the conviction is probable, deliberately tank the case, sign a super-lenient plea bargain, or the like. How do you stop him?

No, the answer is simple enough; allow private prosecution, as long established in the common law and is still the law of England. If a private party wants someone prosecuted, they can go to a grand jury and try to secure an indictment, and if they do, they can then pursue the case to trial.

[SomeGuy 2]

It says the conditions the warrants are to be issued under, the exclusionary rule is just something the judiciary made up. Hardly seems sporting to complain about judicial exceptions to a judicially created rule. If the judiciary making things up is legitimate then great-- both the rule and the exception are legitimate. If the judiciary making things up isn't legitimate, then the exclusionary rule isn't legitimate in the first place. Either way, defendant loses.

[Brett Bellmore]

The exception just seems inconsistent with the original rationale for the rule.

[SomeGuy 2]

It seems consistent to me. The point was to prevent the government from getting a prosecution win it otherwise would not have by excluding evidence it would not have otherwise had access to. Had the discovery been inevitable, then it would have found it anyway so no harm done. There’s a difference between “but for government misconduct” and “but for a paperwork screwup.” The former prevents a prosecution that otherwise would not have been possible, the latter is a mere gratuity to criminals.

[momo]

Can we just call the 1st jury as witness to the 2nd trial to tell us how their experiment went?

[David Nieporent]

Yeah, so? The 4th amendment doesn’t say that you need enough evidence to get a warrant. It says you need to GET a warrant.

I mean, actually, it doesn't.

[elnurmamedrafiev]

"Sixth Circuit (over a dissent): Jurors definitely can't experiment like that. New trial forthwith or let him go."

Yeah, better to require a $1,500/hour "expert" to testify as to whether it can be done, rather than just letting the jurors try it themselves.

[SRG]

As the actual decision makes clear there are plenty of reasons why that jury test was not legitimate. But that would have required you to read it.

[Ken Arromdee]

One of those reasons, though, was that the defendant didn't get a chance to examine or rebut the evidence. Which seems to me proves too much, if taken seriously (obviously the law doesn't take it seriously)--the defense didn't get to rebut any bad reasoning made by the jury either, so by that reasoning we shouldn't even have juries.

[Davy C]

Right, I don't think the defense has the right to rebut the jury.

If some juror would have said "Yeah, it's possible to unscrew a window with a knife; I do it every time I lock myself out of my house" that would not violate the defendant's rights despite the lack of cross-examination.

If the jury would have decided "Well, we have absolutely no experience as to whether it's possible to unscrew a window with a knife, but we'll believe the prosecution that it's possible; it seems quite doable" that would not violate the defendant's rights.

I seriously don't believe it violates the defendant's rights for the jury to try it out. No, the cabinet is not the same as the window. I think we have to trust the jury to understand that, just like we trust them to understand that Juror 1's window is not the same as the one in the case.

[SRG]

The jury is required to consider the evidence presented in court and the defendant has the right to rebut evidence.

In this case, the jury considered evidence not presented in court - its own "evidence" - and the defendant did not get a chance to exercise their right of rebuttal.

These are separate issues from the nature of the evidence the jury created - which was feeble, as anyone who tries to use a flat head screwdriver to unscrew a Phillips-head screw knows. Evidently two or three of you lack even the most basic technical knowledge or competence.

[elnurmamedrafiev]

The defendant could have put forth an expert to demonstrate why the jurors were mistaken in their test. Why didn't they?

[David Nieporent]

Because he didn't know about it until after the verdict?

[SRG]

Are you determined to be a fuckwit?

[DWB]

Always the most depressing post of the week -- the government seems to exist only to pick on people and push them around.

Every drug law could vanish next Monday and the government would spend the weekend before putting as many people in cages as it could.

[Michael D]

I enjoy Short Circuit and find it anything but depressing. And I completely agree with your assessment of drug laws. Prohibition is a failed policy.

[N/A]

Floribama? I thought they just called the whole handle Lower Alabama.

[Frank Drackman]

You are correct sir! ( HT E. McMahon) Floribama's a "lounge" on the West FL/Alabama line. "Florala"'s a town on the South AL/FL line.
Love telling people I went to Med School in "LA". Mobile's a strange cat, port city, so you'd see Sailors from Zanzibar, Stevedores from San Salvador, settled by the French, then the Spanish, short period of independence before falling under the boot of our current Yankee overlords (HT "Reverend" Klinger) Left with my Sheepskin and haven't been back, like Jimmy Buffett, Kenny Stabler (treated in the ER once) and the true Career HR record holder Hammerin' Hank Aaron

Frank

[GKHoffman]

Not to forget the great Leroy Robert "Satchel" Paige (originally Page).

[DWB]

It has been said of Florida that it is the only state where the farther north you go, the farther south you get.

[Dr. Ed 2]

You do know that Georgia was formed as a prison colony....

[DWB]

I did not!

I just recently learned that South Carolina was a colony of Barbados!

[Dr. Ed 2]

https://www.hhhistory.com/2018/05/colonial-georgia-prison-colony-or-place.html

The thing to remember is that often these were debtors in debtor's prisons -- but still prisoners.

[Frank Drackman]

which was why Slavery was originally outlawed in GA (who needed it) unlike those Race-ist Pilgrims in Massachusetts. OK, we made up for it later.

[Ken Arromdee]

For the National Register case, any restriction on what can be done with the property in the future inherently affects the property's value, regardless of whether the owner wants to do that thing at this exact moment. It seems unreasonable that the law shouldn't assume this is a given.

The ruling also raises the question of what happens if he contests the classification on the Register later when it makes a difference. Does he get to do it then or is it too late?

[bernard11]

any restriction on what can be done with the property in the future inherently affects the property’s value, regardless of whether the owner wants to do that thing at this exact moment.

This is true, of course, but I wonder if being listed might also increase the property value.

[Jerry B.]

The more I read about qualified immunity, absolute immunity, etc., the more I hear the Founders spinning in their graves (dug by slaves, no doubt).

[SRG]

It's basically the state protecting the state. There are millions of Americans who favour originalist constitutional interpretations who have tried to get QI removed...oh wait, they're in favour.

[gormadoc]

"favour"
Opinion discarded.

[SRG]

1. Ad hominem.
2. I continue to spell using the British spellings I grew up with.

[Michael D]

What is the originalist argument for QI?

[Michael D]

It needs to be eliminated. Qualified immunity enables public officials who violate federal law to sidestep their legal obligations to the victims of their misconduct. In so doing, the doctrine corrodes the public’s trust in those officials—law enforcement in particular— making on-the-ground policing more difficult and dangerous for all officers, including that vast majority who endeavor to uphold their constitutional obligations. And the doctrine’s primary justification, to prevent public officials from paying their own judgments, has proven empirically unfounded as the widespread availability of indemnification already provides that protection.

[John F. Carr]

I'm curious – did slaves dig graves of upper class white men, or did they get whites to do it so the deceased did not have to lie in unclean ground?

[Squirrelloid]

"but not so far as to be unworthy of a Judge Selya vocab quiz: chiaroscuro, tenebrous, tamisage, perscrutation, supererogatory, condonation, sockdolager."

Objection! Tamisage is a French word, and *not* an English word.

[SomeGuy 2]

"So either get Bernie Sanders' permission to use the slogan 'Bernie Sanders Betrayed the NJ Revolution" or think of something else.'"

"Sernie Banders Setrayed the NJ Revolution." Doesn't mention any real person by name, should be good to go.

[Frank Drackman]

I'm voting for "Buck Hoe Liden"

[Frank Drackman]

That shitbird murderer in KY should have been executed in 1993.

[Michael D]

Question RE: 2nd Circuit ventilator case (IANAL)

If the plaintiff was the estate of a decedent who lost their life due to lack of access to a ventilator caused by the state reallocation, does it having standing, etc?

[DaveM]

IMPROVE YOUR VOCABULARY WITH THIS ONE AMAZING TIP

Thanks for the write up on the case of the 23 year-old Mayor of a Massachusetts town who contested his conviction for extorting bribes from Marijuana vendors in exchange for licenses. Quite the “vocabulary lesson”, indeed! http://media.ca1.uscourts.gov/pdf.opinions/21-1823P-01A.pdf

Something tells me the opinion writer was having a lot of fun with this one, whipping out one obscure verbal gem after another:

Tenebrous, adjective. Dark and gloomy.

“The first investor signed the agreement, but the record is tenebrous as to whether the second actually signed.”

– – – –

Chiaroscuro, noun. The quality of being veiled or partly in shadow

“The district court sentenced the defendant to serve seventy-two months in prison. The defendant now appeals. After careful consideration of a chiaroscuro record, we affirm.”

– – – –

Tamisage, French, masculine noun. Sieving, sifting

“In conducting this tamisage, we must honor the jury’s evaluative choice among plausible, albeit competing, inferences.”

– – – –

Exigible, adj. That may be exacted; demandable; requirable

“No more was exigible to ground the jury’s finding that the defendant had made materially false representations in this respect.”

– – – –

Perscrutation, noun A thorough searching; a minute inquiry or scrutiny.

“Upon close perscrutation, we reject the claim that there was insufficient evidence for the jury to find that he conspired with the defendant to extort the victim.”

– – – –

Supererogatory, adjective Performed to an extent not enjoined, or not required, by duty or necessity.

“To say more on this point would be supererogatory.”

– – – –

Repristinate, transitive verb. To restore to an original state.

“We see no reason to repastinate soil that has already been well-plowed.”

– – – –

Sockdolager, noun. That which finishes or ends a matter; a settler; a conclusive answer, and the like.

“The sockdolager, of course, is the strength of the government’s evidence. In this case, all roads lead to Rome. We conclude that the defendant has not shown a likelihood that the alleged misconduct prejudiced the jury and, thus, influenced the outcome of the case. The defendant resists this conclusion. He marshals some case law in support of his resistance — but the defendant is comparing plums with pomegranates.”

– – – –

Condonation, noun. The act of condoning, or of pardoning a wrong act.

“We caution, then, that our opinion should not be read as a wholesale condonation of the tactic employed by the government in this case.”

[John F. Carr]

Judge Selya has a reputation for this. There are published articles about his vocabulary. I recognize half the words as making regular appearances in his opinions.