Short Circuit: A Roundup of Recent Federal Court Decisions

Sikh Marines, MAGA hats, and racist memes.

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

If officers point a surveillance camera at a home for eight months without a warrant, is that an unconstitutional search? Earlier this year, the First Circuit ruled that not only is it not unconstitutional, but also that it's not even a search. Phooey! In an amicus brief, IJ is urging the Supreme Court to take up the case and adopt a more common sense approach to its Fourth Amendment jurisprudence: looking for evidence is a search.

• Marine Corps refuses to allow Sikh recruits to maintain their religiously required hair and dress during basic training, even though every other service branch fully accommodates Sikh servicemembers—and even the Marines will after basic training. A RFRA violation? Colonel Jeppe (paraphrasing): Deep down in places you don't talk about at parties, you want me [violating religious liberty during basic training]—you need me [violating religious liberty during basic training]. D.C. Circuit: "[I]t is difficult to imagine [the Sikh plaintiffs] losing"; give them a preliminary injunction.
• Second Circuit: It's possible that $17 mil was an unconstitutionally excessive fine in this case involving banking fraud in the cannabis industry, but the district court likely overcorrected by dropping it to $100k. Such reductions should cure the excessiveness, but no more.
• North Carolina inmate with vision impairment complains that his cell is not ADA compliant, prompting prison nurse to threaten him with involuntary sedation if he won't shut his trap. His trap remains un-shut and Nurse Ratched makes good her threats. He files a grievance, but it is dismissed as untimely, so he goes to federal court. Fourth Circuit: And there's a decent argument the prison's administrative process was so byzantine that the inmate had no remedies to exhaust. The trial court can clear that up on remand.
• Allegation: From a distance of 10 feet, man records TSA agents patting down his husband (who had infant formula that couldn't be opened for testing) at Richmond, Va. airport. When ordered to stop recording and delete the footage, he complies, and the family is allowed on its way. A First Amendment violation? Feds: Think of the terrorists. Fourth Circuit: Think of the split-second decisions TSA agents will be afraid to make if they don't have total immunity for violating the Constitution. Reversed and dismissed.
• North Carolina farmworker labor union relies on two types of agreements when negotiating with farm owners: settlement agreements, which resolve disputes under the condition that the owner affiliate with a union, and dues-checkoff agreements, which require the owner to withhold union dues from member paychecks and transfer the money directly to the union. That is, until North Carolina bans the use of such agreements in 2017. Fourth Circuit: Though the ban may have a greater impact on Latinos and non-citizens, there's no evidence of discriminatory intent, and it is constitutional.
• Friendly advice from the Seventh Circuit: If you have medical issues that a police officer might mistake for inebriation, it may be a good idea to wear a medical bracelet while driving.
• After East Chicago, Ind. firefighters' union lobbies against the mayor, the city imposes a work schedule that is unlike any other in the country and that wreaks havoc on firefighters' sleep and personal lives. District court: Which was plainly retaliation, as an official admitted on surreptitiously recorded tape. Plus, there's no evidence of any benefits to the city's finances from the change. Seventh Circuit: Preliminary injunction affirmed. Easterbrook, J., concurring: Political payback is part of democracy, and judges don't have any business weighing costs and benefits of democratically enacted policies—even petty and mean-spirited ones. Alas, the city didn't make that argument.
• "Knowingly" is a word that can attach to a plenitude of phrases. But does it attach to "who has not attained the age of 18 years" in a federal statute that makes certain statutory . . . acts criminal? The majority and dissent of this Eighth Circuit panel have a lot of statutory points to say about it.
• On their own time and away from school, Albany, Calif. students post racist memes about other students to a private group chat. Posts are then shared beyond the private group, leading to substantial disruption at school. Can the school expel the students? Ninth Circuit: Last year's "angry cheerleader" case means that off-campus online speech is usually protected, but this stuff was "reasonably foreseeable" to get out and disrupt school life. Concurrence: I'm into banning some forms of "hate speech."
• Allegation: Vancouver, Wash. middle school teacher wears a MAGA hat to teachers-only cultural sensitivity and racial bias training. One teacher cries. Another feels threatened. The professor leading the training feels traumatized. The principal cusses out the offending teacher and tells him not to wear the hat again, which makes him feel harassed, intimidated, and bullied. Ninth Circuit: We feel like if the principal was going to have a Bernie Sanders sticker on her car, she shouldn't be silencing other political speech. Grant of qualified immunity reversed.
• San Bernardino, Calif. officers purportedly conducting inventory search of car they are having towed don't actually inventory the many pieces of property they find—just the one illegal thing. Ninth Circuit: Minor noncompliance with dept. policy. No need to suppress the evidence: Forrest, J., dissenting: A Fourth Amendment violation.
• Joseph "Tiger King" Maldonado-Passage was sentenced to 22 years in prison for hiring two hitmen to take out his foe, an animal-rights activist. (Neither was successful; one went to the beach instead, and one was an undercover FBI agent.) (Tiger King: Murder, Mayhem and Madness is on Netflix, if you wish to revisit or learn about the sordid story for the first time.) Tenth Circuit (2021): Convictions stand but resentence the man. District court: Okay, 21 years. Tenth Circuit (2022): Which is fine.
• Nevada Supreme Court: Qualified immunity, a federal doctrine, does not shield state and local officials from state constitutional claims. Nor is there any need for the state legislature to give people a permission slip to seek damages for violations of the search-and-seizure provisions of the Nevada Constitution: "We simply recognize the long-standing legal principle that a right does not, as a practical matter, exist without a remedy for its enforcement." (IJ argued this case as friend of the court. We also produced a stirring podcast on the topic of state remedies as a friend of the people.)
• Ohio Supreme Court: When the gov't wants to seize private land for public use via eminent domain, it can only take as much as it needs and it must show its needs with actual evidence. (IJ urged this course of action as amicus.)

Friends, until this week, Wisconsin was one of the very few states that banned the sale of most homemade, shelf-stable foods—like chocolates, candies, dried goods, and roasted coffee beans. The ban was very pleasing to the commercial bakeries that lobbied for it, but a poor deal for everyone else. So poor that the ban flunked the state's rational basis test, a court ruled this week, noting that "every single [state] employee who testified in this case stated that [the ban] is unjustifiable as a matter of food safety." [Bold in the original.] Click here to learn more.

Comments

[John F. Carr]

The First Circuit split on whether camera surveillance was not a search, or might be a search but was not so obviously a search that our men in blue should have their evidence suppressed.

[Eeyore 2]

Another state court case that may be of interest:

Today, the Oregon Supreme Court decided Watkins v. Ackley, holding that under the state post-conviction act, the unanimous verdict rule from Ramos v. Louisiana applies retroactively to cases on collateral review. This is the only jurisdiction that had nonunanimous verdicts that has done so (Louisiana and Puerto Rico declined to do so).

[LawTalkingGuy]

Well that opinion from the Nevada Supreme Court is awesome. Great and concise breakdown of constitutional tort analysis and why recognizing a damages remedy is an appropriate judicial function. Also a nice contrast to the Fourth Circuit TSA case which shows why the Supreme Court’s precedent on Bivens and implied rights makes no sense and makes many rights meaningless.

The federal fear of crafting a judicial damages remedy doesn’t come from a sincere place of judicial humility or legislative deference. Creating damages remedies for wrongs is what common law courts do and have always done. They only result in judgments, which may or may not be collectible. Using coercive equitable and declaratory remedies to stop legislation and policies or to favor some rights over other rights is both new and much more intrusive. But the federal courts love to do that.

Damages remedies for constitutional violations would be way more humble and in line with judicial competence than what we have now.

[Michael P]

The summary about "statutory ... acts" is perverse. The acts are not what is statutory -- defining them as rape is what is (traditionally called) statutory. "Rape by virtue of minors being incompetent to consent to intimate relations" somehow just doesn't roll off the tongue.

That is, the summary could have been corrected by saying "makes certain acts ... statutory crimes". Yes, this is a pedantic gripe.

[Bob from Ohio]

"more common sense approach"

You mean "senseless approach". I took a video of my cat yesterday, I didn't frisk her. 1st circuit was exactly right.

[LawTalkingGuy]

“I took a video of my cat yesterday, I didn’t frisk her.”

If you’re going to try being funny, you need to try and tie it to the relevant issue. This makes no sense as a joke based on what those two cases were about.

[Michael P]

Were you recording her for months trying to find evidence of a crime? Also, in case you've forgotten, animals have no constitutional rights.

[Krychek_2]

On the Fourth Circuit TSA case, it strikes me that even granting that sometimes split second decisions have to be made, this case is not such a case. Rather than give blanket immunity because of the rare case that really did require a split second decision, I would require the government to show case by case why on the facts of that case it can’t give the plaintiff a remedy.

[Eggprd]

I cannot think of anything in a TSA check that is "split second". Holding a cell phone while silently standing 10 feet away is not intrusive for the agent or the traveler. Millions of people see such searches every day, there is no secret to protect. If the court removed the phrase, "split second decision" the rest of the reasoning seems to be much less persuasive.

[Noscitur a sociis]

In an amicus brief, IJ is urging the Supreme Court to take up the case and adopt a more common sense approach to its Fourth Amendment jurisprudence: looking for evidence is a search.

Well, at least that makes whether or not to donate an easy decision.

[Dr. Ed 2]

"He has a complicated medical history, including
traumatic brain injury, seizures, anxiety, depression, and
attention-deficit/hyperactivity disorder. [emphasis added]

In most states, a history of seizures automatically disqualifies you from even HAVING a driver's license -- the real question I have is why he HAD one.....

[John F. Carr]

Until you have a seizure while driving the DMV is not likely to learn about it.

In Massachusetts you lose your license for at least six months after an unexplained loss of consciousness reported to the RMV unless the RMV, after weighing the medical evidence and your political influence, decides on a longer or shorter period.

[Dr. Ed 2]

Hmmmm…..https://www.mass.gov/how-to/report-a-medically-impaired-driver

BUT: "Friendly advice from the Seventh Circuit: If you have medical issues that a police officer might mistake for inebriation, it may be a good idea to wear a medical bracelet while driving."

?!?

[Dr. Ed 2]

I looked it up -- only California, Delaware, Nevada, New Jersey, Oregon, & Pennsylvania mandate MDs report medically-unfit drivers, although apparently Illinois ONLY accepts reports from police officers.

I think the larger question is what was this man doing filling prescriptions? You make a mistake doing that and it can be a lot more lethal than merely pegging a pole....

Medical malpractice kills a lot more people than OUI -- and unfit practitioners are a real problem.

[David Nieporent]

In most states, a history of seizures automatically disqualifies you from even HAVING a driver’s license — the real question I have is why he HAD one…..

Really? There are 50 states. So you're claiming that in at least 26 of them, this is the law? Can you share the results of your 50-state survey with us?

Alternatively, you could admit that once again, Dr. Ed simply makes things up.

(I have not done such a 50-state survey. But the Epilepsy Foundation has, and of course shows that Dr. Ed doesn't know what he's talking about. Here, for instance, is Massachusetts:

https://www.epilepsy.com/lifestyle/driving-and-transportation/laws/massachusetts

When the Registry receives information that a licensee/applicant has experienced a seizure which will or may impact safe operation of a vehicle, the licensee/applicant will be deemed ineligible for a license. The individual shall voluntarily surrender or Registry shall revoke license, until they have been seizure free for six months and submits a detailed physician's report and recommendation that they are able to drive safely. 540 MASS. CODE REGS. 24.06 (2020). A licensee or applicant may be exempt from the 6 month period upon a physician’s certification that their medical condition and medications will not interfere with the safe operation of a motor vehicle, citing specific reasons for such determination. 540 MASS. CODE REGS. 24.06(2) (2020). Alternatively, the Registrar may require a longer episode-free period. 540 MASS. CODE REGS. 24.06(2) (2020). The individual may be required to submit additional medical evidence, including further medical evaluations, of their ability to drive safely. 540 MASS. CODE REGS. 24.06(3) (2020).

In other words — as is common sense — seizures do affect one's license, but there is no categorical rule that a "history of seizures" "disqualify" — "automatically" or otherwise — someone from having a license.

[Dr. Ed 2]

" If an officer has no reason to think that a person
needs medical help, then failing to summon or provide
medical assistance is not objectively unreasonable."

He (a) hit a pole and (b) had no memory of what happened.

That screams concussion -- even if drunk.

[David Nieporent]

I have to say that as critical as I generally am of cops, the Seventh Circuit got the seizure case right. Of course (based on the described facts) the cop had probable cause to arrest the guy.

[F.D. Wolf]

“Knowingly” is a word that can attach to a plenitude of phrases. But does it attach to “who has not attained the age of 18 years” in a federal statute that makes certain statutory . . . acts criminal? The majority and dissent of this Eighth Circuit panel have a lot of statutory points to say about it.

For centuries, at common law, statutory rape has been a “strict liability” crime, and the defendant’s honest, reasonable mistake as to the victim’s age offered no defense, and any number of federal and state court decisions have affirmed this view over decades. The dissent in this case, by applying a rule of statutory construction annunciated by the Supreme Court in 2009 to a statute enacted in 1990, would have upended that ancient view.

In brief, the question was whether the word "knowingly" in the phrase "knowingly transports a minor" applied only to "transports" or to "minor" as well. The majority, affirming the ancient rule, held that the government need not prove the defendant knew the victim was a minor, in unanimous agreement with the nine other circuits that had addressed the issue.

[David Nieporent]

Why should the centuries of analysis of the common law necessarily be thought to apply to analysis of a (as you point out, recent) statute? (Worth noting that many states do not follow the common law approach of making it a strict liability offense.)

[F.D. Wolf]

The common law is essentially judge-made "law" in the absence of a statute, and, of course, can be modified by statute. So, if a court is going to overturn a centuries-old common-law rule, it should be absolutely certain that had been the legislature's intent, and applying a Court-made rule of statutory construction to a statute enacted 19 years before the rule, which obviously could not have been known at the time to the drafters of the statute, falls well short of such certainty.

Of course, as you note, state legislatures are free to alter the rule, and some have, and Congress is free to do so as well if it so chooses.

[tkamenick]

As a very broad answer, because when legislatures write laws, they frequently use the language the courts use to describe legal concepts, and they want them to mean the same thing - unless they expressly say they are doing something else.

[John F. Carr]

Statutory rape used to apply to prepubescent girls. The age limit was younger and girls hit puberty later. It has little in common with modern law that can put you in jail for bedding a high school senior who had you convinced she was a college freshman.

I would have ruled that "knowingly" means with knowledge of the elements of the predicate crime, the same standard that would be used to convict of attempt, but not knowledge that the intended act was criminal. Like the law against gun possession by a felon. Knowledge of felon status is an element of the crime. Or for domestic assault, knowledge that the possessor has been convicted of misdemeanor assault and of the relationship status of the victim. (In the First Circuit, at least, pleading domestic assault down to simple assault does not save you from the consequences.)

[F.D. Wolf]

The first court in any jurisdiction to allow reasonable mistake of fact as to age as a defense was a California appellate court, affirmed by the California Supreme Court in People v. Hernandez, 393 P.2d 673 (Cal. 1964), overruling its decision in People v. Ratz, 46 P. 915 (1896). At the time Ratz was decided, the age of consent had been 14; at the time Hernandez was decided, the age of consent was 18, and the girl involved had been three months shy of her 18th birthday.

[ReaderY]

Regarding the 8th circuit transportation of a minor case holding that the defendent doesn’t have to know the minor is underage, it also appears the person transported consented, and consent was irrelevant. Under the current state of the law, the same principles could he applied to a transportation for purposes of abortion statute.

[tkamenick]

"Ohio Supreme Court: When the gov't wants to seize private land for public use via eminent domain, it can only take as much as it needs and it must show its needs with actual evidence."

Good. Now apply that to abridging every single constitutional right.

[SomeGuy 2]

"San Bernardino, Calif. officers purportedly conducting inventory search of car they are having towed don't actually inventory the many pieces of property they find—just the one illegal thing. Ninth Circuit: Minor noncompliance with dept. policy. No need to suppress the evidence:"

Sometimes the caption is the best part of the case:

"JONATHAN EDWARD CHARLES ANDERSON, AKA Johnathan Anderson, AKA Johnathan Edward Anderson, AKA Jonathan Charles Anderson, AKA Jonathan Edward Anderson, AKA Jonathan Edward Cha Anderson, AKA Jonathon Edward Anderson, AKA X Rage"

How does someone end up with seven aliases, one of them being "X Rage?" And more then a mere nickname, apparently this is a widespread enough moniker it merits inclusion in the case caption. Defendant likely has a colorful backstory the opinion only scratches the surface on.