Short Circuit: A Roundup of Recent Federal Court Decisions

Zoom jurors, community caretaking, and criticizing a colleague.

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

• In this week's Profile in Judicial Understatement, we bring you Judge Jennifer Walker Elrod of the Fifth Circuit, who concludes that it may indeed have been unlawful sexual discrimination to deny this Louisiana construction worker opportunities for advancement because, in the words of her general foreman, she has "t*** and an a**." Summary judgment reversed.
• Students at Knoxville, Tenn. public high school (located in a former train station) are permitted to eat and chew gum in some classes, which is excruciating for a student who suffers from misophonia. Disability discrimination? Sixth Circuit: Case undismissed.
• The Supreme Court's ruling in City of Austin v. Reagan National Advertising may be incoherent and ends-driven (our words), but it is the law and easily disposes of this First Amendment challenge to a Madison, Wisc. sign ordinance (the Seventh Circuit's words).
• Arkansas parolee absconds; law enforcement get a tip he's staying at a friend's place and dealing drugs. They arrest him leaving her place and then search it without a warrant. Yikes! Plenty of contraband. Eighth Circuit: It's an issue of first impression, but we hold that officers must have probable cause—rather than reasonable suspicion, a less-demanding standard—to believe a parolee is living at a residence to conduct a warrantless search. And an uncorroborated tip and being in the vicinity of a residence don't cut it. Suppress the evidence.
• University of Iowa law prof criticizes University of Iowa doctor for his expert testimony regarding a meat processor's employee bathroom-break policies via complaints to the doctor's boss, local newspaper articles, and elsewhere. Doctor: First Amendment violation. Amicus: A professor criticizing another professor is normal and should be encouraged. Eighth Circuit: The law prof's speech might have been seen as authoritative given his employer, but that isn't enough to transform his speech into state action, so no constitutional violation here.
• We apologize that this entry does not contain a detailed breakdown of this fascinating Eighth Circuit ruling about the right to cross examine witnesses about their habitual drug use if the witnesses have made clear they will invoke their Fifth Amendment right against self-incrimination (on which the judges disagree), but we can't stop thinking about the unanimous holding that firing a gun at someone you have carjacked and then driven to a second location to beat the crap out of and possibly kill does not count as discharging a firearm "during and in relation to" the carjacking.
• A man in Washington state has the cash on him confiscated when he's taken to jail. Upon release, the jail gives him his money back in the form of a pre-paid debit card with rapidly accruing fees. The man brings a class action saying the fees are illegal. The card-issuer: But using the card meant agreeing to our terms of service, which contained an arbitration clause. Courts can't resolve the claims. Ninth Circuit: But we can resolve whether spending your own money means you agreed to those terms in the first place. No arbitration.
• If you want to learn a bit about how cities use zoning to force the disadvantaged out of town (in this case folks living in "sober living homes") then you'll learn much from this opinion where the Ninth Circuit allowed a disability lawsuit challenging a city licensing ordinance to go to trial.
• Los Angeles police officer says that he fatally shot naked, mentally ill man in gym's shower because, among other things, the man was repeatedly punching the officer's partner in the head as she lay in a fetal position. District court: In post-incident photos, she is "unscathed." Ninth Circuit (over a dissent): Discovery may shed more light on what actually happened, but in the meantime it is clearly established that officers must give warning—if practicable—before using deadly force. Denial of qualified immunity affirmed.
• District court: In addition to the First Amendment problems, it would be an unconstitutional excessive fine to allow the feds to seize a RICO-convicted motorcycle gang's trademarks (though vests, patches, armor, and weapons bearing those marks are fair game). Feds: Okay, what if we extinguish the gang's rights to the marks but don't transfer them to the gov't? District court: Still no. Ninth Circuit (with pictures): Affirmed, but without reaching the constitutional issues; this isn't permitted under RICO.
• Fullerton, Calif. police suspect nonagenarian is the victim of elder abuse, but his wife declines to let them into the home to conduct a welfare check without a warrant. They break down the door and arrest her roughly, breaking her elbow even though she was unthreatening. District court: The alleged abuse was financial, not physical, and it's inexplicable that the officers didn't call other officers who were investigating those allegations. Ninth Circuit (unpublished): Denial of qualified immunity on the unlawful entry claim is reversed. The unreasonable seizure and excessive force claims survive, however.
• If you don't want jurors in your criminal trial to participate by Zoom, don't consent to their doing so. Per the Ninth Circuit, remote participation may conceivably cause problems, but they are not "structural" problems and are thus waivable.
• Utah girls and their families sought separate girls high school football teams; local districts denied the request, pointing the girls toward co-ed football teams instead. Tenth Circuit (unpublished): The districts haven't excluded the girls—who can play alongside boys on the same team—so there's no sex discrimination rising to an equal-protection violation. But the district court needs to take another look at the Title IX claims.
• Want to read 150 pages—and six different opinions—about public school transgender bathroom law? Well, the Eleventh Circuit (en banc) says this is your lucky day.
• Insurance company: Your yacht insurance requires you to employ a full-time captain to care for your yacht, and you didn't. Policy void! Yachtsman: But what does it even mean to be a "full-time" captain? One who works forty hours a week on my boat? One who stops by my boat occasionally but has a full-time job as a captain somewhere else? What if he just wears a hat all the time? Eleventh Circuit: Nice try, Socrates, but you didn't hire a captain at all (though, serendipitously enough, we reverse on other grounds).
• And in en banc news, the Ninth Circuit will not reconsider its decision to grant conditional habeas relief to a man who, at the age of 16, brutally murdered a friend's mother and later entered a plea agreement calling for life imprisonment without the possibility of parole. Six judges dissent from denial, arguing that habeas violates the AEDPA because Supreme Court precedent clearly bars only mandatory life imprisonment without the possibility of parole for juvenile offenders, and does not extend to pleas in which the defendant agrees to that sentence.

The Institute for Justice is looking for passionate and entrepreneurial attorneys with 0-3 years of experience to join our headquarters office in Arlington, VA as Litigation Fellows in September 2024. The two-year fellowship is IJ's preferred path to permanent employment for recent graduates or post-clerkship candidates with less than two years of experience. Outside the courtroom, fellows have the opportunity to do media writing and appearances, public speaking, grassroots activism and direct advocacy to policymakers and legislators. Interviews and offers will be on a rolling basis. For more information, visit www.ij.org/careers.

Comments

[F.D. Wolf]

In addition to the First Amendment problems, it would be an unconstitutional excessive fine to allow the feds to seize a RICO-convicted motorcycle gang’s trademarks (though vests, patches, armor, and weapons bearing those marks are fair game). Feds: Okay, what if we extinguish the gang’s rights to the marks but don’t transfer them to the gov’t? District court: Still no. Ninth Circuit (with pictures): Affirmed, but without reaching the constitutional issues; this isn’t permitted under RICO.

I would strongly advise against using the colors or marks of an outlaw motorcycle gang without their permission, because they will take up the issue with you, but not in court.

[mydisplayname]

In the age of dysphorias, it is unsurprising that one who suffers from misophonia — and has been accommodated by being allowed to wear noise-cancelling headphones, being provided additional time to complete assignments, being allowed breaks of lengths of her own determination at the times of her choosing, et c. — feels perfectly justified in denying her fellow classmates the “privilege” of eating outside of a duly-designated eating area.

Dr. Meau Quack and his colleagues can deem something a tragic, life-affecting, non-disprovable dysphoria and BAM! the world must change: the possibilities are limited only by the creativity and guile of an empowered class.

The Sixth Circuit’s finding is correct, as is the more recent finding by the Southern District of West Virginia: both are wins for reality.

[defaultdotxbe]

I sympathize with someone suffering from misophonia, but if any aspect of secondary education’s role is to prepare students for real life, shielding students from the sound of someone eating is doing them a disservice.

[FivebySixThree]

One has to assume that her parents actions will lead her to use the ADA to enforce her needs upon any employer she that hires her. That sad truth is that her “disability” and yeah I am using quotes around it is to damn flavor of month modifiable to always insure she is affected by the actions of another.

At some point mental disabilities such as this one have to be acknowledge as something that cannot be fully accommodated and the disabled person has to make adjustments as well; which apparently they have refused to do and simply double down on their demands because kids being kids see the ridiculous and call it out

[Nige]

Why? You think someone with that condition can ‘get used’ to it? They’re teaching her to protect herself without being ashamed of it. It’s odd how often this sort of thing is characterised as ‘shielding’ rather than empowering.

[tkamenick]

No, they’re teaching her to use people with guns to force other people to make the world easier for her. And yes, desensitization is possible, as is taking YOUR OWN steps to make things better.

[Nige]

What’s wrong with that? Nobody else is going to do it for her, why shouldn’t she? Are we supposed to submit meekly to society and instantly conform to all its aspects no matter how much they cause you to personally suffer? Standing up for yourself isn’t a good value?

I thought we liked guns?

[MatthewSlyfield]

“I thought we liked guns?”

We like privately owned guns. Government owned guns are a separate matter entirely.

[Gandydancer]

Getting the school to inflict your preferences on all the other students who merely want to go about their lives in perfectly ordinary and unobjectionable fashion is not even remotely “standing up for yourself”. It’s being a noxious pest.

[jimc5499]

I have a severe allergy to certain foods. When I found out that I had the allergies it was made clear to me that it was my responsibility to watch what I eat. These days one kid has an allergy they ban that substance from the school entirely. They try to make it everybody else’s job to look out for that student. I belong to a few Social Clubs and we have potluck meals for certain events. The people there know that I have allergies and warn me about certain dishes. I consider that a courtesy from them that I am grateful for, not an obligation.

[Gandydancer]

Are you sure you understood what the ruling was?

Sixth Circuit: “We REVERSE THE DISMISSAL of the complaint, deny the request that we issue a preliminary injunction on appeal, and remand for proceedings consistent with this opinion.”

In other words Jane Does gets to continue her suit to compel other students not to eat or chew gum in her vicinity.

[Bob from Ohio]

Re: Gumgate case

“his attention has caused some cruel students to target Doe by making
noises that trigger her condition”

Imagine my shocked face here.

[Commenter_XY]

I know; teenagers are gonna just be teenagers. Surprised this came from TN though.

[Gandydancer]

She deserves it.

[Frank Drackman]

So you go to jail with cash and leave with a Debit Card, now that’s something I could join an “Insurrection” for.
So now when “Joliet Jake” gets released from Prison it’d be, “One Timex Digital Watch, Busted. So here’s a prepaid gift card to buy a replacement, Sorry!!!”

Frank “Umm, I’ll buy my own Condom’s thank you”

[defaultdotxbe]

Does the debit card have to be limited to the cash they had on them, or can they donate all their property to the nearest thrift store and load the debit card with the estimated value?

“One bespoke Armani suit, one Rolex watch, one diamond pinky ring. Here’s a debit card loaded with the $14.95 that Goodwill sold it all for”

[SomeGuy 2]

I’d have the state just eat the fees, but a card is definitely the way to go. Otherwise you end up in an endless chain of monitoring the jail employees to verify they’re handing out the right amount of cash and prisoners claiming (possibly truthfully) they were short-changed. Nice thing about the card is there’s a record, you can demonstrate that the former inmate actually received what they were owed. If they want the cash they can go straight to an ATM.

I’d say to just cut them a check, but realistically speaking a lot of these people don’t have bank accounts and may not have ID, cashing a check would be a non-trivial challenge for them.

[Rossami]

Not to disagree about the possibility of moral hazard but how is that different from all the other personal property seized when they are processed in? It’s not, by the way, like money goes bad. Put it in a sealed envelope with the guy’s wedding ring, credit cards, etc. and just give them the still-sealed envelope back when their sentence is done.

[Krayt]

Did anyone check for kickbacks, direct to the state, or indirect to somehoosbuddy?

[Armchair Lawyer]

Given the fairly small amounts of cash involved, I tend to agree with you. Having a debit card issued for the amount of $14.62, but then being told there will be a $2.95 fee for using it at an ATM machine and a $2.50 weekly “maintenance” fee on the card seems…abusive.

[FivebySixThree]

Seems? it is abusive. Its similar to the issue with phone services for prisons that courts have had to crack down on.

Government officials seem to have not reach the limit by which the allow the system to prey upon the weakest as long as it enriches government coffers.

[Gandydancer]

If you think a sealed envelope will prevent theft you are the guy in the game who doesn’t know who the mark is.

[Krayt]

Six judges dissent from denial, arguing that habeas violates the AEDPA because Supreme Court precedent clearly bars only mandatory life imprisonment without the possibility of parole for juvenile offenders, and does not extend to pleas in which the defendant agrees to that sentence.

Captain Kirk, to a robot: Now remember, someone can be sentenced to life if they agree to a plea because government is threatening to sentence them to less than life and they are scared of less than life.

Robot: Life sentence is worse than less than life sentence, which is worse than life sentence, which is worse than less than life sentenc…fotzzz!

[F.D. Wolf]

In Roper v. Simmons (2005), the Supreme Court held that it was unconstitutional to put an offender to death for a crime committed before he was 18. In Miller v. Alabama (2012), it held that a juvenile offender could not be given a MANDATORY life sentence without the possibility of parole (LWOP). In Montgomery v. Louisiana (2016), the Court held that Miller had announced a substantive, constitutional rule, and was therefore retroactive. In Jones v. Mississippi (2021), however, the Court clarified that it was permissible to give a juvenile offender LWOP so long as the sentence was not legally MANDATORY, and the sentencer had discretion to consider the defendant’s youth as a mitigating factor and to impose a lesser sentence.

The particularly horrific murder in this case occurred in 1998, well before any of those decisions. At the time there were three possible sentences for the crime: death, LWOP, or life with the possibility of parole after 25 years. Crespin entered a plea agreement for LWOP. The sentencing judge, however, was not bound by that agreement (as judges typically are not) and could have given the lesser sentence. The judge, however, stated that, considering all the aggravating and mitigating factors, such as the defendant’s youth, he felt LWOP was the appropriate sentence. So, the judge had discretion, which is all the Supreme Court requires.

I don’t think this case is a particularly close call, and that the Ninth Circuit is clearly wrong (yet again). But even if it were a close call, it would certainly fall well short of the “clearly established law” required for habeas relief under the AEDPA. If I were a betting man, I would feel quite comfortable predicting the Supreme Court, particularly this Supreme Court, will reverse the Ninth Circuit should this case be appealed, and the Court decides to hear it.

[Gandydancer]

From the opinion: “Because the Supreme Court had not yet held that the death penalty could not be imposed on defendants younger than eighteen when the crime occurred, Crespin faced a possible capital sentence if convicted. To avoid that possibility, he entered into a plea agreement under which he agreed to a sentence of life without the possibility of parole.”

Now SCOTUS now says he shouldn’t have faced that threat, but I’m not losing any sleep over that.

[F.D. Wolf]

I understand the reasoning. (Obviously, there’s no incentive for a defendant to enter a plea agreement for the maximum sentence.) But still, in my opinion, the Ninth Circuit has extrapolated wildly beyond what the Supreme Court actually said, and habeas relief under the AEDPA requires a violation that “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States”. It is not for a circuit court, in an AEPDPA case, to guess what the Supreme Court MIGHT have said given different facts.

I don’t believe the Ninth Circuit’s reasoning is exactly off-the-wall, but I do not think the Supreme Court would agree with it.

[Armchair Lawyer]

I’m a bit confounded by the Arkansas case…

Is there probably cause (or even reasonable suspicion) that the individual in question is residing at the location that’s being searched? The totality of the circumstances would lead me to say yes.

1. His mother says he isn’t residing at his listed location.
2. A confidential informant said he was living at the second location.
3. The cops then picked him up leaving the second location.

If it was just the CI’s word alone, or just the fact he was picked up outside the house….that may not be enough. But everything together like that?

[Brett Bellmore]

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Probable cause, great, but they seem to be skipping over the part where the probable cause is necessary to get the Warrant, not an excuse to go ahead without one.

[MatthewSlyfield]

^This.

Okay, maybe some warrantless searches are reasonable, but the standard for when a warrantless search is reasonable has to be something more than the standard for granting a warrant.

[Voize]

Did you read the opinion?

Paroled prisoners are entitled to a reduced expectation of privacy during the term of their parole, generally this includes being subject to warrantless searches. In Arkansas it is a condition of parole that the parolee consent to warrantless searches, as this parolee did. In other states (CA) they are subject to suspicionless searches, a condition that SCOTUS found constitutional in Samson v California (2006).

That’s why the question here isn’t whether they can search his house without a warrant, but how sure do they have to be that it is the right house?

[MatthewSlyfield]

“but how sure do they have to be that it is the right house?”

It shouldn’t be enough for a warrantless search of a house that a parolee is living there. It should have to be the parolee’s house (as in the parolee is the legal owner or leaser), and they ought to have documentary evidence of that before they can do a warrantless search on the house.

Just because the parolee has reduced 4A rights doesn’t mean the owner of a home where the parolee is staying has reduced 4A rights.

[Voize]

If you share a house with someone you accept that they may grant access to that house to third parties, possibly access that you would not have granted. That is the background of the question here, whether the house is the parolee’s “place of residence”, because one of the attributes of a resident-residence relationship is that the resident can let others in. The parolee did this when he agreed to the conditions of parole, so the remaining question is whether the place that was searched was one whose door he had the power to open.

[Armchair Lawyer]

“It shouldn’t be enough for a warrantless search of a house that a parolee is living there. It should have to be the parolee’s house (as in the parolee is the legal owner or leaser),”

That’s not the standard, and frankly doesn’t make any sense.

For example, initially the parolee listed his mother’s house as his place of residence. He’s not the Leaser or legal owner there. As according to your standard, the waiver would be meaningless.

[Brett Bellmore]

Yeah, and I’m not in the tiniest bit troubled by waivers of constitutional rights being limited.

[Brett Bellmore]

Even if they knew he was in it, he’s not some kind of mobile 4th amendment free zone.

[Armchair Lawyer]

A search waiver was already in place for the suspect.

“I agree to allow any Arkansas Community Correction officer, or any certified law enforcement officer, to conduct a warrantless search of my person, place of residence, or motor vehicle at any time, day or night, whenever requested by the Arkansas Community Correction officer, or certified law enforcement officer”

The question is not whether the police could search his place of residence without a warrant or not. He’d already consented to that as a condition of his parole.

The question is, was it reasonable to assume the location searched was his place of residence? Given the facts listed above (His mother said he wasn’t living at his place of residence, the CI said he was living in different location, and he was caught leaving different location).

[Brett Bellmore]

Yeah, for the suspect, not somebody else’s house.

That’s what I mean by him not being a mobile 4th amendment free zone: Maybe he’s not wronged by this search, but unless he’s the owner/renter of the place searched, that’s irrelevant, because the 4th amendment right for a place belongs to the owner or their designee, not any random person who happens to be present there.

Does this inconvenience the police? Sure, like I give a damn. The 4th amendment is supposed to inconvenience police! If you’ve hunting for work arounds, you’re not taking it seriously.

What’s the downside here? They have to get a warrant? Oh, my heart bleeds for them!

[Gandydancer]

“Did you read the opinion?”

Obviously not. But the important point is that these IJ people dishonestly don’t mention in their summary that the parolee had agreed as a condition of his parole to allow a warrantless search of his residence. Don’t think you’re getting the truth on these podcasts. You’re getting fact-concealing and -twisting advocacy.

[David Nieporent]

All these fascists routinely whine about IJ not providing a full case brief in a one or two sentence summary, which is designed only to let people know whether they might be interested in the case. And most of the time — as in this case — what these fascists complain about being omitted isn’t even relevant. Whether he agreed to a warrantless search of his residence has nothing to do with the issue, which was what was his residence? (Or, more specifically, what was the standard of evidence for determining what his residence was.)

[Armchair Lawyer]

He’d already consented to a search of his living premises as a condition of his parole.

[jimc5499]

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

Unless the Government has determined that there is a benefit to Society from the search. At least that’s the justification for DUI.

[John F. Carr]

One way to dispose of this case is to say

(1) the defendant can not challenge the search because he agreed to it, because he is a guest rather than a resident, or both; but
(2) the homeowner’s constitutional rights were violated and the police are advised to pay compensation lest they be liable for attorney’s fees in a civil rights action

Not sure if that’s my favorite disposition, compared to tossing all the cops in a dungeon, but it’s a way out.

[Voize]

The leading authority on the homeowner’s situation would be Illinois v. Rodriguez. If during the search the police found evidence implicating Frase, it would be admissible against her as long as the police reasonably believed that Thabit had the authority to consent, even if that belief turned out to be incorrect (e.g. because he only visited the house and didn’t reside there).

[tkamenick]

Man this week has some doozies.

Gumgate – as has been noted, the line between “This annoys me” and “This annoys me and I have convinced some people it’s a “disability” and not just a personality trait” is too grey for the law to be involved. But furthermore, there SHOULD be a difference between “I can force my employer and its employees / my school and its employees to change their behavior” and “I can force my classmates, who aren’t bound by any of these laws, and who are minors to change their behavior to accommodate me.”

City of Austin is incoherent. It’s basically “Oh geez, maybe we went too far but we don’t want to say so” Effectively everybody who looked at municipal sign ordinances after Reed said these things have to be redone from scratch because they all are content based.

State jail debit cards – yes, abusive. But really the card-issuer shouldn’t be in the case. The government is the one at fault here for forcing this as the only option.

No, Title IX does not require high school to make ENTIRE FOOTBALLS TEAMS for 2 girls to play on, who would have nobody to play against. Good grief.

9th Circuit making up AEDPA law. Quelle surprise.

[Voize]

I have spent time sharing an office with a chronic throat clearer, never imagining I was the one entitled to an accommodation.

[Gandydancer]

Where’s the link to the podcast?

These people are anyway scum. I listened to a couple of other podcasts on their site, and one case they concentrated on (in #232, iirc) was a case where a born-Mexican was awarded $35k and $240k in lawyer’s fees (ka-ching!) because the PD held their client while trying to get ICE to show up and take her into custody. I noticed that their discussion never got around to saying whether or not her presence was legal.

So I followed the link. Not only no license, but an expired visa, probably acquired by fraud, I’d bet. Not worth mentioning as part of the sob story, evidently. But the PD had, according to the court, no compelling interest in catching criminals.

[David Nieporent]

Gandydancer doesn’t think people trying to overthrow the government are scum — but not sufficiently demonizing someone whose rights were violated? Oh, yeah, that’s complete scumminess.