Short Circuit: A Roundup of Recent Federal Court Decisions

Bogus arrests, bogus charges, and bogus seizures.

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

New on the Short Circuit podcast: bags of dope, unlawful assembly, and an invitation to assemble in centennial celebration of one of the most sweeping defenses of individual liberty in history, Meyer v. Nebraska.

• In response to a public records request, ICE turns over 21 spreadsheets to the ACLU. But wait! The records are pretty useless because they lack any personal identifiers. ICE: Those are exempt. We can't go around sharing people's records! ACLU: But you can substitute anonymized identifiers so we know which records belong to the same person without identifying the person. District court: No, that's creating a new record, which FOIA does not require. Second Circuit: Reversed.
• Gang member is convicted of witness retaliation and sentenced to three years in prison after attacking a former member of his gang on the street in the Bronx. Second Circuit: New trial. The defense was not allowed to sufficiently screen for anti-gang bias among the jurors. "[D]istrict judges are afforded broad discretion in conducting voir dire. That discretion, however, is not boundless."
• This Second Circuit case is about whether various New York state actors are entitled to Eleventh Amendment immunity in a suit about an easement, brought by the Seneca Nation. Interesting stuff. Equally interesting: It's also a case study in the Second Circuit's practice (unique among the federal courts of appeals?) of letting each judge hew to his or her own idiosyncratic document-formatting preferences. Compare Majority Opinion (embracing wide-margins and single-spaced text), with Dissenting Opinion (favoring ~one-inch margins and double-spaced text).
• Board of Immigration Appeals: Sure, a gang harassed you, threatened you, and repeatedly beat you, and then, when you skipped town, took their revenge by beating up your father and raping your sister. But it only counts as "past persecution" if you had to get a medical doctor involved. Third Circuit: Guys. Guys. No.
• It's March 2020. Officials in North Carolina's Outer Banks ban (with four days' notice) non-resident property owners from entering the county, ultimately for 45 days. An unconstitutional uncompensated regulatory taking of this Richmond, Va. couple's beach house? Fourth Circuit: Why no privileges and immunities claim? And no.
• What's the difference between an "interpretive rule" and a "legislative rule" under the Administrative Procedure Act? The Fifth Circuit explains while invalidating an FAA rule that, being "legislative," was void because it failed to go through proper notice and comment procedures.
• It's March 2020. Over the weekend, lawyer mom is told by her law firm that they're going to give this "work from home" thing a try on Wednesday, March 18. But just one day. As the rest of the world is grinding to a halt, her son's daycare shuts down. She asks if she can WFH Monday and Tuesday as well. Law firm denies the request, so she uses PTO. Then does WFH on Wednesday. Goes just fine. Says she'll be back in on Thursday. But son has COVID-like symptoms that aren't getting better, so Thursday morning asks HR if she can WFH on Thursday and Friday. HR says fine. Turns out not-so-fine, though, as later that day the lead partner overrides HR's decision and fires her. FMLA violation? Sixth Circuit: She's certainly stated a claim.
• Allegation: Livingston County, Mich. probation officer is critical of county prosecutors' discriminatory practices, and they retaliate by ginning up bogus perjury charges and getting her suspended from her job. She sues for violations of her First and Fourth Amendment rights, among others. The prosecutors open up the pack of gov't immunity cards and play . . . ALL of them: prosecutorial, sovereign, qualified, and state-law. Sixth Circuit (unpublished, over a dissent): Immunities (mostly) denied, case can proceed.
• Milwaukee man is convicted of shooting three men at a 2009 party, killing one. After his conviction, a new eyewitness emerges who says the prosecution's lead witness was actually the shooter. Habeas? Seventh Circuit: Failure to satisfy state procedural rules precludes relief, and there is insufficient evidence of actual innocence to get around that barrier. Dissent: A state judge found the new witness credible, and the state's evidence was pretty shaky, so there's enough evidence of actual innocence that we should consider the constitutional claims.
• Between 1993 and 2017, Chicago classified aviation security officers at O'Hare Airport as law-enforcement personnel, which came with perks like getting to arrest people and being allowed to carry concealed firearms after retirement. In 2017, the city changes its mind about the classification. A violation of the Fourteenth Amendment's Due Process Clause? Seventh Circuit: Decidedly not.
• Jane Doe plaintiff goes to the St. Louis VA Medical Center to receive battlefield acupuncture (BFA) therapy—a form of therapy that involves placing needles or tacks into five spaces in a patient's ear—to treat her hip pain. The nurse practitioner performing this hocus pocus also sexually assaults Doe. She sues under the Federal Tort Claims Act. Eighth Circuit: Sexual assault wasn't part of his job duties, so there's no FTCA claim.
• Paraplegic serial ADA litigant sues California "Lobster Shop" because its parking lot is inaccessible to his modified van. This is the latest in his nearly 2,000 ADA lawsuits. Ninth Circuit: Nothing wrong with being a serial litigant under the ADA. Dissent: But the district court concluded after a bench trial that the plaintiff had no real intention of ever returning to the shop—a claim he makes in every case. That wasn't plainly erroneous, so he lacks standing.
• Another week, another case of a prisoner who died because of incompetent medical care, this time out of Oklahoma. Tenth Circuit: But at least some of her estate's claims may go forward.
• Seventeen-and-a-half-year-old girl, a member of the Choctaw nation, orchestrates the murder of her abusive and neglectful parents by two underage friends. The gov't charges her with two counts of first-degree murder, crimes for which the mandated punishments—death or life without parole—are unconstitutional as applied to minors. She challenges the transfer of her case from juvenile court. Tenth Circuit: Her constitutional claim is unripe—she may be acquitted. Though the facts are tragic, the district court properly weighed the transfer factors. Dissent: No, it didn't.
• In which the Tenth Circuit illustrates the difference between things states may not legally do (which includes interfering with the interstate transportation of hemp) and things states may do without fear of being sued (which, apparently, includes seizing all your hemp plants at the airport).
• The Eleventh Circuit is the latest to rule on the tax offset provision in the American Rescue Plan Act, splitting with the Sixth (somewhat) and Eighth on standing, and concluding Congress's "offset provision" forbidding states from lowering taxes after taking COVID-19 stimulus goodies was unconstitutional.
• Sitting en banc, the Eleventh Circuit finds that the Constitution provides no remedy if officials jail you on a decades-old warrant from another state for a person with the same name—a name that is shared by thousands of people—and fail to check for the very obvious differences (height, weight, tattoos, birthdate, Social Security number, fingerprints) between you and your wanted homonym. Also, if officials threaten you when you try to tell the judge about the mix-up, that's fine too.
• And in en banc news, the Ninth Circuit will not reconsider its opinion that talk therapy is a form of medical conduct that, for First Amendment purposes, is indistinguishable from brain surgery. Five judges disagree, and Senior Judge O'Scannlain's statement respecting denial of rehearing en banc makes arguments that sound an awful lot like those in IJ's amicus brief in support of rehearing.
• And in amicus brief news, IJ is asking the Fifth Circuit to affirm the denial of qualified immunity to St. Tammany Parish, La. officers who took their time, got legal advice, calmly deliberated, and then arrested a former officer for criticizing them after being told by the district attorney such an arrest would be unconstitutional.

Friends, is it rational to require end-of-life doulas, who help the terminally ill and their families host home funerals, to build a funeral home that will just sit empty? California regulators say yes, but this week a federal district court ruled no: There is no health, safety, or consumer protection justification for such a requirement. And moreover, barring the doulas from providing end-of-life planning advice and from truthfully advertising their services violates the First Amendment. Hurrah for good sense, judicial engagement, and rational basis with bite! Click here to learn more.

Comments

[Bob from Ohio]

"St. Louis VA Medical Center to receive battlefield acupuncture (BFA) therapy—a form of therapy that involves placing needles or tacks into five spaces in a patient's ear—to treat her hip pain. "

Were they out of leeches?

Maybe that Rand study discussed Thursday missed this.

[John F. Carr]

As FDA-regulated medical devices leeches are more expensive and require more paperwork than pointy things you can buy in hardware stores.

https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfPCD/classification.cfm?ID=NRN

[John F. Carr]

You can also buy FDA-approved maggots. https://www.accessdata.fda.gov/scripts/cdrh/cfdocs/cfPCD/classification.cfm?ID=NQK

[Dr. Ed 2]

Maggots do a less traumatic job removing dead flesh from burns than other methods.

[Brett Bellmore]

Yeah, they sound nasty, but in practice they're really good at just removing the dead tissue, and leaving the live tissue alone.

[Alpheus W Drinkwater]

As regards the Outer Banks beach house case, Ross and the 4th circuit both ask why no privileges and immunities claim. But there was a separate suit brought in the federal district court by six other non-resident property owners which was a privileges and immunities claim, among other things. Dare County settled with those plaintiffs, paying $16,000 in legal fees. The plaintiffs got nothing except a written promise from Dare County that for all future pandemic emergencies, non-resident property owners would not be excluded from entering the County. So the question of possible 14A violations was never reached.

[F.D. Wolf]

Board of Immigration Appeals: Sure, a gang harassed you, threatened you, and repeatedly beat you, and then, when you skipped town, took their revenge by beating up your father and raping your sister. But it only counts as "past persecution" if you had to get a medical doctor involved.

Guatemala has a population of about 17 million people and an area of about 42,000 square miles, about the area of Tennessee. But it's just not big enough to possibly escape the omnipresent gang. So, does he walk across the border and ask for asylum in El Salvador, Honduras, Belize, or Mexico? Of course not. No one ever seeks asylum in Mexico. Why would anyone seek asylum in a country that speaks his language and has a culture more similar to his own? Not to mention being closer. No, he makes the 2300-mile trek to the U.S. And is returned to Guatemala, He makes the trek a second time. And is sent back to Guatemala.

Third time's the charm though. He can stay. Heck, for what he paid the smugglers (i.e., another gang) to get him here three times. he probably could have paid off the gang to leave him alone.

[SomeGuy 2]

Plus the only evidence he even had an issue with a gang is a) he says so and b) his father backs up his story. The government can never really disprove these cases because what are they supposed to do, subpoena every gang member in Guatemala and ask if they attacked this guy?

Unless someone is a complete doofus, if they show up at the border with a sob story and can keep it straight, they’re in. Federal Reporter is littered with cases like this.

[David Nieporent]

They can be cross-examined just like any other litigant. Keeping an invented story straight is not was easy as all that, when you are asked for details.

[SomeGuy 2]

In theory, sure.

In practice, it's the hardest form of cross. There's no other witnesses and he claims he didn't report the attacks to the police because according to him it would be futile. So there's almost no documents to check him against either. One of the few times there's a document, it's a police report relating to an alleged attack on his sister and that report is inconsistent with his testimony. So the court explains it away, maybe the police report is wrong! The government needs a Perry Mason style cross where the witness breaks down on the stand and admits he's lying, otherwise the applicant's testimony is the only evidence and of course they win. What's more, the applicants' counsel can and do read the precedents, the applicants are well-coached on what they need to establish to win.

It's possible for the government to win, but they're playing an incredibly difficult game, because it's not that hard for the applicant to remember to say "I was attacked by a gang, but I didn't report it to the police because it's futile." Throw in a few details, practice once a day until the hearing, and of course this is going to sound credible. This jurisprudence is just roundabout open borders.

[Davedave]

Jesus, listen to you. Traitorous piece of unAmerican shite. And that's barely beginning to touch on the depths of your hatred for the USA and everything it stands for. Liberty and equality, due process and justice? Nah, fascism and racist hatred are all you understand.

To think your grandparents fought a war against everything you believe in. Utterly shameful.

[Alpheus W Drinkwater]

And if those considerations are allowed to the signatories of the 1951 Refugee Convention (or the 1967 Protocol), then that's a good argument.

[SomeGuy 2]

At minimum, it goes to credibility. He doesn't realistically speaking need to travel so far to escape a local gang, so the lower courts should have found he was most likely lying and sent him packing.

[SomeGuy 2]

I was rereading the opinion to respond to another comment and I missed this gem on the first go-around:

“Furthermore, neither the IJ nor the BIA bothered to inquire what, if any, professional medical care was available. Instead, the BIA assumed that, after being stabbed with a broken bottle, Saban-Cach “did not need sutures or surgeries or any further medical treatment.”42 Yet nothing on this record establishes that “sutures or surgeries” were available to him. The record does not establish that Saban-Cach would have been able to see a medical professional of any kind. Rather, the evidence in the record only indicates one option for professional medical treatment—a hospital that was far away.And it seems unlikely that Saban-Cach could have called an Uber (or similar ride-sharing service) to take him there.”

Ah yes, it makes perfect sense that the applicant didn’t go to the hospital after his alleged attack. It’s so far away and they don’t have Uber!!! Very curious that the guy who can’t figure out how to get to the hospital somehow manages to infiltrate the United States of America three times. That hospital must be very far away, and the USA border very close. Odd case.

[LawTalkingGuy]

Seventh has the nicest formatting and typography. First (not mentioned today) has the worst. Eighth is second worst. Third is second best.

[rloquitur]

The wrong David Sosa case is an example of just plain overthinking with a dollop of ipse dixit. The bottom line, it seems to me, is that a warrant authorizes the detainment of the specified individual, not any individual with the same name. Thus, even taking David Sosa into custody feels like a Fourth Amendment problem, given the physical characteristics mismatch and the obvious fact that David Sosa is a common name. I don't see the basis for the assumption that the warrant authorized Sosa's detention.

The judges in the majority seem to want to make a point about inventing rights. But this case is a poor vehicle for doing that--as the cops' conduct is pretty bad.

[The Margrave of Azilia]

“New trial. The defense was not allowed to sufficiently screen for anti-gang bias among the jurors.”

I hope the decision was better than this summary indicates.

[Davy C]

I have an objection to many of the questions attorneys will ask. I'm sorry, but the court shouldn't allow a question like "Would you give the testimony of a police officer more weight" like was asked when I was questioned. Answering the question either way is not grounds to dismiss. And frankly it's an invasion of privacy to force people to answer random questions under oath. You may want to know how much education the person has or how many children they have (as the defense in this case apparently did), but such things are almost always irrelevant, and their only use is so one side or the other can use a peremptory challenge based on stereotypes.

Now, in this case, the proposed questions about gangs were at least relevant, and the state of the law is such that the judge should have allowed them to at least some degree.

Given those choices, there was no way for the district court’s generic questions and vague warnings to actually root out, or otherwise guard against, the specific bias against gang members potentially at play in this case.

Except the questions given *did*, in fact, root out one juror. It's kind of stupid to say that there's no way something could happen when it happened in this very case.

[David Nieporent]

Answering the question either way is not grounds to dismiss.

Well, actually, it is.

[Brett Bellmore]

Sure, it was relevant. Like, you know, in a mob trial asking if you were hostile to mobsters.

[Dilan Esper]

Right. Indeed, it's pretty obvious that jurors can have experiences that would make it difficult for them to fairly judge a particular defendant's conduct. Let's say a juror had a sister who was shot in a drive-by shooting by gang members, or a cousin who was caught up in a street gang and ended up going to prison. Just because "gang members are bad" doesn't mean that those two jurors could fairly judge a case against a gang member-- they might very well be unable to be impartial.

Obviously, the point of voir dire is to ensure a juror can be fair, not to kick off anyone who might have had some experience that could theoretically create bias. But the questions should be asked and the judgments then made based on the answers.

[Brett Bellmore]

It would take more than a generalized dislike of gangs, though, just as it would require more than a generalized dislike of mobsters. It's basically understood that these gangs are criminal enterprises, like the mob, and it is to be expected that people will dislike them.

[Dilan Esper]

Correct. But it's important to ask the questions.

[KenveeB]

"I’m sorry, but the court shouldn’t allow a question like “Would you give the testimony of a police officer more weight” like was asked when I was questioned. Answering the question either way is not grounds to dismiss. "

Yes, actually, giving one type of witness more weight before you've heard any of their testimony IS grounds for dismissing a prospective juror.

[John F. Carr]

The summary says the FAA rule was "void", but the Appeals Court declared it was "set aside". Whatever that means.

[BillyG]

Plain language vs. legal terminology. Lets use laws as an example. Courts issue injunctions against enforcement of laws. This is typically reported as a court "overturning" a law. The law is still on the books. The state is prohibited against enforcing it.

[Rev. Arthur L. Kirkland]

Here is a great, fresh federal court decision:

Julian Khater, the disgusting insurrectionist and backwater Pennsylvania smoothie server who sprayed officers with bear spray in service of right-wing bigotry, ignorance, and backwardness, was sentenced to nearly seven years in federal prison today by a lenient federal judge.

Let's hope that's long enough to make the rest of his life consist mostly of regret and shambles.

[Davedave]

I'm disappointed to find out that 'Pennsylvania smoothie' isn't something on urbandictionary.

[Kleppe]

This topic is on federal appellate decisions. Wait a few more months for the case you mentioned to be featured.

[Old Smokin' Egg]

Is it hurtfully calling attention to his disability to say that a paraplegic "lacks standing"?

[David Nieporent]

He'll be here all week, folks. Enjoy the veal, and remember to tip your waiter.

[santamonica811]

Okay, that was funny.

[kotodama]

The Tenth Circuit hemp case says: "The next day, Serna sued ..."

So, was this a test case about the statutory provision then?

[XEleison]

I wondered the same thing. It seems like this was a prepared case.

[tkamenick]

"sufficiently screen for anti-gang bias"

Isn't every sane person anti-gang? I'm pretty sure I don't want gang agnostics on any jury.

[Davy C]

I would agree with you, although it can rise to unacceptable levels. For example, if a juror is going to convict the person no matter what because as a gang member they're obviously guilty of *something*, that would be unacceptable bias and the juror should be dismissed for cause. If the juror is inclined to give a gang member's testimony less weight, on the other hand, I'd allow that. (Which in this case could work both ways since the victim and the defendant were both gang members.)

[Ed Grinberg]

Any day now, judges will have to excuse any potential juror "biased" against criminals. We're living in strange times...

[Davedave]

Your head is a strange place.

[Brett Bellmore]

In this case, the strange place is the year 2023.

[Hugh]

Meyer v Nebraska along with Pierce v Society of Sisters are two decisions involving the 14th amendment and substantive due process that would also be on Clarence Thomas' chopping block, although he either hasn't bothered to think through the implications of his argument, or is too intellectually dishonest to include them on his list of shame. Pierce is the 1924 decision that found a substantive due process right for a parent to send children to a private school, striking down a KKK-inspired Oregon law aimed at Roman Catholic schools.

[MatthewSlyfield]

To be fair, if you actually read what he has said on the matter, in many if not most cases, he would reconstitute the same or a similar result under the Privileges and Immunities clause of 14A rather than the nebulous doctrine of "substantive due process".