The Volokh Conspiracy
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Short Circuit: A Roundup of Recent Federal Court Decisions
Flouncing, flaunting, flirting, flouting, foundering, and flounting.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
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- In 1972, Congress proposed the Equal Rights Amendment and sent it to the states with a seven-year deadline for ratification, later extended to 10 years. Only 35 of the required 38 states ratified the amendment before the deadline, and several passed votes purporting to withdraw their ratification. Fast forward to 2018, when Nevada, Illinois, and Virginia became the 36th, 37th, and 38th states to ratify the supposedly defunct amendment and then file a mandamus action seeking to compel the national Archivist to record the amendment as part of the Constitution. D.C. Circuit: Mandamus is only to be used when the right to relief is "clear and indisputable," which, it's fair to say, ain't the case here.
- Garner's Modern American Usage shows no mercy to federal judges who confuse "flaunt" with "flout." A mouth-breathing "Stage 3" error, says Garner! Which doubtless is why the First Circuit wasted no time issuing this sua sponte blockbuster errata clarifying that a district court's discovery orders were in fact "flaunted." Wait, no. "Flouted." "Flaunted"? "Flounted." Definitely flounted.
- Plaintiff: New York law forbids employers from taking adverse action against employees who procure abortions, but we are crisis pregnancy centers. Taking adverse action against abortion is kind of our whole thing. Second Circuit: And you may well have a First Amendment right to only employ people who agree with that. Case undismissed!
- What should you do when the police confiscate your handmade sign warning motorists of a nearby "traffic-enforcement operation"? Make another sign, of course! It'll absolutely get you arrested, but it'll also make you a starring character in an opinion like this one from the Second Circuit.
- Two dudes go walking down the sidewalk of a Richmond, Va. housing complex. Cops see them, recognize them, and accuse them of trespassing based partly upon a trespassing arrest from eight years ago. Cops ask the dudes to lift their shirts. One does, one kind of does. The kind-of one is also wearing skinny jeans, and there was a sketchy tip he sold drugs. Officers threaten him with trespassing charges and then detain and pat him down, finding a gun. Permissible Terry stop? District court: That's totally fine. Fourth Circuit (over a dissent): A sketchy tip, eight-year-old arrest, and skinny jeans? Grant the motion to suppress.
- Allegation: Inmate at Rush City, Minn. correctional facility is attacked with a shank when he declines to pay off his cellmate's drug debt. He (and his family) repeatedly ask for a transfer to another facility, but officials decline (in part because the assailant attests "the issue [is] dead.") The assailant attacks again the first chance he gets, causing serious injuries. Eighth Circuit: Prison sucks, man. What do you want us to do about it?
- Driver of utility-terrain vehicle declines to stop for Bureau of Land Management officer in Berdoo Canyon, Calif., passing within arm's reach of the officer. The officer fires his weapon, striking the passenger in the hand and grazing her head. Excessive force? District court: No qualified immunity. Ninth Circuit: Vacated with instructions to dismiss with prejudice. The Supreme Court has never said you can bring a Fourth Amendment claim against a BLM officer—a narcotics officer, sure, but they have a totally different mandate. [IJ filed an amicus brief urging a rather different course of action.]
- During the George Floyd protests in the summer of 2020, Seattle police withdrew from the Capitol Hill neighborhood and turned it over to the Capitol Hill Occupied Protest (CHOP). Notwithstanding the mayor's characterization of the events as a "summer of love," 19-year-old Horace Lorenzo Anderson, Jr. was shot, paramedics staged only a block and a half away couldn't get to him, and he died. His mother sued the city arguing that its actions violated her substantive due process right to the companionship of her adult son. Ninth Circuit: We're the only circuit that actually recognizes this right, and the city was deeply irresponsible, but the risks it created weren't particularized to your son, so case dismissed. Concurrence: Bah! We should go en banc to un-recognize this "right" to not have your adult kids killed by state-created dangers.
- Abortion demonstrators operating a "sidewalk ministry" sue the city of Norman, Okla. alleging that the city's disturbing-the-
piecepeace ordinance violates the First Amendment both facially and as applied. Sure, they lost at trial, but guess what happened when they appealed and (inexplicably for litigants represented by pro bono counsel) waived oral argument. Tenth Circuit: They lost again. - In 2014, New Mexico State Police agents carrying out an arrest warrant in their "battle dress uniforms" (dark clothes, tactical gear) confront woman who is not their suspect and who believes she is being carjacked. She drives away, and the agents shoot 15 times, hitting her once in the back. Excessive force? Tenth Circuit: (2019): You can't raise Fourth Amendment claims unless you were "seized." And because you got away, you weren't. SCOTUS (2021): Vacated. Shooting someone is a "seizure," even if they get away. District court (2021): But these agents get qualified immunity because that hadn't been clearly established. Tenth Circuit (2023): Ah, but they couldn't have known she'd escape when they shot her. Remanded to determine if the agents behaved reasonably. [IJ filed an amicus brief urging this course of action.]
- Man, a felon, suspects his wife has overdosed, calls 911, and ambulance takes her to the hospital where she dies. Kingman, Kans. police then prohibit him from entering his house for several hours while they search. Find meth and guns. He's prosecuted, but on appeal the evidence is suppressed because there wasn't probable cause. He then sues for Fourth Amendment violations and malicious prosecution. District court: You waited too long to sue, and you can't sue for malicious prosecution you weren't found not guilty. Man: But the clock should have stopped while I was being prosecuted! And the Supreme Court just said all I need is the prosecution to end without a conviction! Tenth Circuit: Sorry, you should have sued even while you were fighting a long-running criminal prosecution. And good point on the new SCOTUS case, but your pleading was bad.
- Finally, courtesy of the Tenth Circuit, an admin-law decision with some real fireworks in it.
- Allegations: Douglas County, Ga. pretrial detainee who has severe injuries from an earlier car accident, and who also suffers from heart and kidney issues and seizures, suffers further severe injuries when left unmonitored and deprived of his crutches in a holding cell and again when forced to crawl, shackled, in an out of a bus that could not accommodate his wheelchair. Eleventh Circuit (unpublished): Jail sucks, man. What do you want us to do about it? Dissent: Completely agree, but it does seem like the jailer should have guessed that the guy in the wheelchair had some mobility issues and that crawling while shackled might exacerbate them. So the whole bus thing should go to a jury.
- In the early months of the Covid pandemic, the Alabama State Board of Pharmacy dedicated itself to the important work of investigating and bringing an enforcement action against an Auburn, Ala. pharmacist for allegedly administering Covid tests improperly. Pharmacist sues: HHS issued a federal declaration upon the outbreak of the pandemic providing "liability immunity for activities related to medical countermeasures against COVID-19." District court: Younger abstention. Eleventh Circuit: Younger abstention! If the pharmacist wants a federal court to consider her federal-preemption theory, all she has to do is defend against the board's enforcement action at the administrative level, appeal through every level of the Alabama state-court system, and get the U.S. Supreme Court to grant cert.
- And in en banc news, the Fifth Circuit will not reconsider its denial of qualified immunity to an Arlington, Tex. officer who jumped into the backseat of a car (over the repeated objections of a fellow officer) and first choked and then shot and killed a motorist who had declined to exit the vehicle for several minutes. (The stop was precipitated by the motorist's 2-year-old tossing part of plastic candy cane out of the vehicle.)
- And in amicus brief news, IJ is asking the First Circuit to reverse a grant of qualified immunity to Gloucester, Mass. school officials who threatened to charge a parent with wiretapping—which requires a secret recording—after he openly recorded them in a public place and posted the recording to Facebook. The district court found there was no previous case on point. But, in fact, every official throughout the land has had more than adequate warning that threatening legal action under a facially inapplicable statute in retaliation for someone's protected speech does indeed violate the First Amendment.
- Friends, last week's edition contained a deeply painful error. The blame lies with your editor, whose fondness for the eponymous sarsaparilla of Sioux City, Iowa, which is not the same place as Sioux Falls, S.D., resulted in an unfortunate and surprising switcheroo. Still, we feels the proffreader's should have caught that one.
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“disturbing-the-piece”? Aren’t you rather flaunting your ignorance here? As for “flout”, you can work out your own gag. I’m tired.
OK, I got a good chuckle out of the last item.
Re Arlington cop: If even the Fifth Circuit won’t grant you QI, you must really suck.
Oohhhh, You’re such a better person than that Cop, and you know you’re the type if some Colored peoples start hanging out around your House, who do you call? not the ACLU, (you know you did, you know you did, you know you did……(HT P. McCartney/Wings)
Frank
It’s not an all-or-nothing proposition. One can think that the majority of cops are decent while deploring the lack of accountability for those who aren’t.
Yet this obvious truth always gets obscured by people like you who seem to think that because I might need a cop, that all cops are by definition good guys.
“One can think that the majority of cops are decent while deploring the lack of accountability for those who aren’t.”
Better to say that ‘most cops behave decently at least some of the time’. It’s statistically proven that actually-decent-person cops are a vanishingly small minority at best. If you have one bad cop acting badly alone, you can argue that he’s a lone rogue cop, but when the bad cop was accompanied by other cops, and they have also acted badly, we can look at the chances that a random selection of cops would give a group of all-bad cops. We regularly see groups of half a dozen or more cops involved in crimes, and obviously the chances of that happening even if only half the pool of cops is bad is vanishingly small. The only way to make it add up is if the actual rate is so close to 100% that we are talking about the possibility that there is one good cop in the pool being quite small.
What the Warren Court did — without realizing it — was change the standard of law enforcement from that of public decency to that of what the rules say.
In other words — in the minds of most officers — it went from what you wouldn’t want your mother to know you have done to what isn’t prohibited by the court — still a restriction on conduct, but a very different one.
And it doesn’t help that the standard shifted from “is he guilty” to “can a lawyer get him off” — this is the slippery slope that has led to most of our problems today because while officers once genuinely did not want to see an innocent man go to jail, now it’s just rules of the game…
No; cops were always thugs.
If you even have statistics, I doubt that’s what they prove. More likely the proof comes from some mixture of extrapolation and imagination.
Do not interfere with prostitutes?
Like running with Scissors, Dangerous!!!
Regarding the Seattle CHOP / CHAZ takeover and the kid murdered, has there been any discussion of how the city’s abandonment of city control violated the Article IV Section 4 requirement that Congress guarantee a republican form of government?
What are you, some kind of Insurrectionist??, Black Peoples will commit crimes and you’ll like it!!!
go to the Corner with Scott Adams/John Derbyshire
Frank “Woke!’ no really I wasn’t sleeping, I’m “Woke”
Re: edit – yeah I wonder about that weirdness too.
“The federal government has no say in this.”
This amendment was proposed by the federal government’s legislative branch.
Ya know, when I posted this, I understood the senate would send a proposed amendment out. Clearly that was not what I was talking about.
Apparently I was not clear enough.
Anyway, the states approve it, it is obvious to all, and weasels in the federal government have no say in that.
Weasels.
Double u
Ee
Ay
Ess
Ee
El
Ess
The problem with that case is that the Archivist does not insert an amendment into the Constitution. The ERA is/isn’t part of the Constitution regardless of what the Archivist does. A federal plaintiff should raise the ERA as a basis for a claim. That would have a much better chance of getting the issue before the Supreme Court.
“A federal plaintiff should raise the ERA as a basis for a claim.”
With much of the ERA being ratified by the Supreme Court, we’re down to topless-sunbathing laws, abortion and male-only draft registration as far as test cases.
And would the ERA even legalize abortion? What about sex-selective abortion?
I agree. A state passes it, then rescinds it before 38. It is not obvious it has passed. Ergo weasle want to go to court to get a federal judge to add an amendment to the constitution.
Weasels. My point is there is no authorization for federal officials from any branch to use weasel trickery to approve or deny.
It is open and obvious to all, by design, which is the only way The People can be confident.
Supreme Court: Can a law be in logical conflict with the Constitution? Of course. Therefore we must judge against the higher law.
“What about this amendment of confusion and trickery in process?”
Supreme Court: That is The People, and The Several States, in their role as sovereign, telling us, the federal government, our form and power. We have no say in that.
OMG if that Amendment Passes Women’s will have to serve in the Infantry!!!!!!!!!! good thing it failed (it did fail, didn’t it?)
So I was reading the Ho dissent in the Arlington case. And Ho references a prior dissent in a case called Edwards v. Oliver. The captioned seemed familiar. It was familiar because this was the case where the officer, Oliver, grabbed a rifle and shot at back passenger side of a car that was leaving a party killing Jordan Edwards who was 15 at the time.
Oliver was charged and convicted of murder and the conviction affirmed in all aspects by the Texas Courts.
Yet incredibly James Ho would have granted qualified immunity to Oliver in the civil case because he said no such clearly established right existed. But even more incredibly he spent a few paragraphs relitigating the reasonableness of the shooting! The best he could come up with is Oliver “probably” violated the Fourth Amendment.
A white cop from the Texas suburbs who killed a black kid managed to do a shoot so bad that he got convicted of murder by a Texas jury and affirmed in all respects by Texas courts at all levels. But the combined idiocy of qualified immunity doctrine and the brain worms (or in this case, heart/soul worms as well) of James Ho led him to believe that there was no genuine issue of material fact that Jordan’s clearly established rights were violated.
Sick demented stuff. From a sick demented dude.
Oh, there was a good one from that Ho on the 5th Circuit last month, where someone was locked up for 8 weeks after his scheduled release date.
https://law.justia.com/cases/federal/appellate-courts/ca5/21-30625/21-30625-2023-02-14.html
The right to timely release is clearly established. But Taylor failed to adequately brief—and has thus forfeited—any meritorious argument that Secretary LeBlanc’s behavior was objectively unreasonable in light of that right. Accordingly, we must reverse.
Next, can we expect that in a shooting case, because the plaintiff failed to adequately brief that Officer Friendly would have known that the gun would go off after he pulled the trigger, Ho et al would reverse?
Judge Ho, like the rest of the clingers, will subsist mainly on the magnanimity of better Americans as the culture war advances and America becomes less superstitious, less bigoted, and less hospitable to obsolete wingnuttery in general.
How magnanimous the culture war’s victors will be toward conservatives and Republicans down that predictable road may be influenced by how the clingers act now.
Still with the “Clingers”?? Jerry?, OK, guess if you fuck kids up the ass your entire life not like you’re going to change your vocabulary,
Still curious how you get so much time on AlGores Internets there at https://www.cor.pa.gov/Facilities/StatePrisons/Pages/Greene.aspx
do you do “Extra Duties” for the Cell Block Screw? the Warden??
Frank
Kirkland, not all of us support Ho’s stunts — nor is it definitely certain that your side is going to win the culture wars. It actually seems that the tide is shifting toward our side.
So YOU need to be worried….
Your “side” loses all culture wars in the long run – no divine right of kings, no executions for blasphemy or heresy, no slavery, no laws against miscegenation, no lynching, all of which were part of Western and in some cases specifically American culture.
The valuable contribution your side can make to the development of (Western) culture is to provide an effective critique of the alternatives advanced by different groups of progressives so that you end up losing to the right groups not the wrong ones.
Oh that one was bad on a lot of levels. There’s no such thing as forfeiture based on “inadequate briefing.” You don’t even need to turn in a brief as an appellee! But if you did forfeiture would be for not saying an argument. Acknowledging it was there but is wasn’t good enough for Jim Ho is ridiculous. (Still can’t believe Graves joined that in full)
I’ve worked in state trial court. If we had used “you didn’t do a good job on briefing so you forfeit all your arguments ” there would have been a lot of meritorious arguments and claims being rejected on all sides of litigation.
“Sick demented stuff. From a sick demented dude.”
Based on a sick and demented doctrine.
What’s the “right” way to enforce a bad doctrine? Except trying to ignore it or distinguish it away until it’s eroded.
But intermediate appellate courts aren’t supposed to do that, it would be wrong!
The funny thing is: the Fifth Circuit has no problem eroding other aspects of law by attrition and hoping SCOTUS goes along. But they really really go to bat for QI. And Ho is one of the worst offenders in his claim that QI should protect cops who use violence but not other types of violations (ie ones he thinks hurt conservatives). It’s blatant policy making. But the policy choices he’s all but admitting he’s making are a reflection of his warped values: cops get to do whatever violent stuff they want to you as long as you’re not someone I think has value in life.
He’ll give long rambling blogposts called concurrences where he blathers on about stuff he cares about. (See the recent screed on why DV TPOs suck), but he couldn’t even manage to pretend to care about the 15 year old kid who was murdered. Probably because he thinks it’s a good things he’s dead and the murderer was right to commit murder. And people think this guy is a serious jurist.
“Probably because he thinks it’s a good things he’s dead and the murderer was right to commit murder.”
Goodness, you seem to know a lot about this judge’s though processes.
I don’t see a link to the case, so I don’t know the circumstances, except that qualified immunity doesn’t apply to criminal prosecutions, so the perp can claim QI from prison for civil purposes.
I hope that was his thought process(es?)
Most peoples the Cops kill deserve to be killed for one thing or another, if Lee Harvey O, James Earl Ray, Sirhan Sirhan Sirhan had gotten a 357 caliber lobotomy for their previous crimes, we’d have had a second term of JFK, probably 1 or 2 of RFK, and maybe even MLK jr would have done something more notable than getting assassinated.
And on the rare occasion Cops murder an innocent bystander (Ashli Babbitt anyone? anyone? Buehler? Buehler??) most of the fucktards here think it’s just great,
Frank
I don’t believe that JFK would have been re-elected in 1964 — and he didn’t believe it either. Remember that was why he was *in* Dallas that day, what would become the “Reagan Democrats” were upset with him — and the John Birch Society was openly accusing him of treason for being soft on Communism.
(The opening line of the luncheon speech never given was “Mr. President, I see that you have survived Dallas.”)
In addition to that, the drug-fueled Camelot was spiraling out of control, it wasn’t just Marilyn Monroe and the other bedmates but that was a big portion of it. He had two or three serious messes that he was going to have to deal with when he came back from Dallas, including a high level aide who was stealing that he was going to have to fire — and all of this would have been messy.
Furthermore, there is considerable evidence that he wouldn’t have lived until 1969, not just the Atkins(?) disease but there were other things as well — and while it’s an open question if he was addicted to the drugs he was taking on a daily basis or if they were necessary for him to be able to function — but either way, that could not have gone on indefinitely.
Being murdered made him famous, but if you look at what HE thought about his re-election chances were against Goldwater, it is a very different story. And he hadn’t won in 1960, either, but that’s another story….
Remember too that Johnson was a very different candidate, *and* was carrying the banner of a martyred President.
Addison’s disease — see: https://www.washingtonpost.com/archive/lifestyle/wellness/1992/10/06/jfks-addisons-disease/aceb473c-a5dc-4199-9453-d3fcd3b18312/
The other thing is Lincoln likely would have lived today.
I mean, he’d be 214 years old, so probably not.
What’s the “right” way to enforce a bad doctrine? Except trying to ignore it or distinguish it away until it’s eroded.
Trying not to expand it would be a good start.
Tell me you know nothing about Bryan Garner without saying you know nothing about Bryan Garner.
I read part of his book.
Anyone who understands (let alone promotes) standard English is a cosmopolitan, fancy-pants elitist by the standards of the Volokh Conspiracy’s target (disaffected, populist, antisocial, downscale, half-educated) audience.
Even a guy who was former Justice Scalia’s pal.
Part of being on the Ass-Burger’s “Spectrum” is we don’t recognize Sarcasm,
So thanks Jerry, who gives a Fuck if you spell “Fuck” with a big “F” or a small “F”?? it’s pretty obviously the same word,
My Pet Peeve’s are “Basically”, “Paradigm”, and “Nom’e Sane?”
“Nom’e Sane?” see how annoying that is? Oh yeah, and “Back in the Day” what day? On my 10th Birthday Richard Milhouse was POTUS and there was still a moon landing to go, on Senescent J’s 10th Birthday, the outcome of the Korea conflict was still in doubt (Did we win??)
and lastly “At the end of the day” when does the day end? Sundown? Midnight? end of the work day? The time zone you’re in, or the one you get paid in?
Frank “On to Cincinnati”
If we wait long enough, will every fan of the Volokh Conspiracy acknowledge being on the spectrum?
At some point it might become a mitigating factor.
Regarding the waiver of oral argument in the 10th Circuit abortion-demonstrators case, I see that the plaintiffs’ counsel listed are based in Orlando and Oklahoma City. Perhaps this was a resources problem — wouldn’t be cheap to go to Denver for argument.
“proffreader’s”
You don’t mean “proofreaders” do you? And if I remember my English grammar correctly, the apostrophe makes it (a) singular and (b) possessive, neither of which appears to be the intent — but I’m just an Education major….
Hint: you know that red line that appears sometimes — it doesn’t mean that the word is spelled wrong, only that the computer thinks it is…
He’s doing quite well for a horse.
So, “…we feels the proffreader’s…” isn’t obvious enough, especially in the context of apologizing for a mistake of fact, not of grammar?
I wish he wouldn’t always be confirming the Ed major stereotypes, as Mrs. Purple has the Same Ed.D I assume Dr. Ed is bragging about, while definitely not following the stereotype.
Eighth and Eleventh “Prison/jail sucks, man. What do you want to do about it?”
I dunno. You could try to insure that the people responsible for oversight people in custody understand that those prisoners are to be treated with at least a minimal level of decency. Humanely. We treat incarcerated human beings worse than we’re allowed to treat dogs. And everyone just shrugs.
I don’t understand why ADA didn’t apply to the disabled prisoner.
I doubt that the plaintiff pharmacists are protected by federal law. The court wrote:
None of these charges necessarily conflicts with the federal proclamation that COVID tests are good for you.
Respectfully, I have heard of cases where what otherwise would have been slam-dunk medical malpractice was not actionable because of the COVID exception, including things like you mention.
Short circuit roundup almost always leaves me wondering why judges don’t get murdered more often. I suppose it’s because the people being screwed over by the judges are almost always more reasonable than the judges, and stifle the impulse.
Good on Garner for his language policing! If we’re going to let the lawyers have a whole array of words and meanings no one else uses, they can bloody well get them right and use them properly! Let the courts impose the rule of lenity on any law or order that gets them wrong.