Short Circuit: A Roundup of Recent Federal Court Decisions

Loss and woe.

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

The U.S. Supreme Court has said that (most of the time) you need Congress's permission to sue federal officers when they violate your federal constitutional rights. But some state courts have rejected that reasoning when it comes to suing state officers for state constitutional violations. Which is right? In Arc Digital, IJ's Anthony Sanders argues it's the latter. He explains "law" doesn't just come from legislatures. Sometimes "the people" make it via a constitution and sometimes courts do. But the belief in "parliamentary supremacy" makes us think courts can't do what they've done for centuries: provide remedies for wrongs.

• A coalition of 46 states, D.C., and Guam sue Facebook for violating federal antitrust law by, among other things, purchasing Instagram and WhatsApp. But those happened years ago. Might these claims be barred by the equitable doctrine of laches? States: Nope, because we're sovereigns, laches doesn't apply. D.C. Circuit: You can be a "sovereign" to whom laches doesn't apply, or you can be a "person" entitled to file antitrust lawsuits, but you can't be both.
• You might think a law that bans therapeutic speech, but not other speech, would be a restriction based on the content of the regulated speech, but this Second Circuit opinion makes clear that those words don't mean the things you think they mean. (This is an IJ case.)
• If you're a criminal defense lawyer and your drug-smuggling client "sent around $90,000 to an attorney in Jamaica, who then wired it to a realtor in New York City, who then sent it to a Ugandan diplomat . . . , who wired the money" to you to send to the mother of his child, you just might be conspiring to launder money. So found a Baltimore jury. Fourth Circuit: This episode of "Better Call Saul" ends with affirming the conviction. Dissent: There was a serious question about whether the conspiracy continued into the statute-of-limitations period, and the jury should have been instructed on that issue.
• Dallas-based UPS worker sues the company for (among other things) invasion of privacy. Allegation: My supervisor denied me a bathroom break until I was forced to defecate on myself at my workstation. UPS: Aha! But since you were (allegedly) forced to sh*t yourself in public, technically it wasn't an invasion of privacy. Lawyered! Fifth Circuit: What on earth is wrong with you? The invasion-of-privacy claim can proceed (though an intentional-infliction-of-emotional-distress claim is a no-go).
• Some might find interesting the substance of this Fifth Circuit NLRB case (whether it's within the NLRB leadership's prosecutorial discretion to withdraw a complaint). Your editor is more inclined toward the sparring between the majority and dissent over the party presentation principle. Is this a case where the bench litigates the case for counsel, or ought judges address legal questions even when presented less than perfectly?
• Nearly 33 months after oral argument, the Fifth Circuit has issued an unpublished, per curiam opinion dismissing a class action challenging Customs and Border Protection's illegal practice of seizing cash at airports and then returning it only if its owners waive their right to sue. We could explain everything wrong with it but, since it's an IJ case and some of those things are basic factual errors, we've got a petition for rehearing to write.
• If you affix a "bump stock" to a semiautomatic rifle, do you now have a "machinegun"? Sixth Circuit (en banc) (2021): We are evenly split and cannot decide. Sixth Circuit (three-judge panel, 2023): Um, since our full court can't decide this, and a bunch of other judges are all over the place, and the same question is before us yet again, let's just go with the rule of lenity. Concurrence: Lenity, schmenity, until Congress says so it's not a "machinegun."
• If the county takes your home to pay property taxes and then transfers it to its "land bank"—enabling the county to pocket any extra cash after the taxes are paid off—does the statute of limitations on suing to get that cash back begin to run when the county seizes or when it transfers? District court: Seizes. Sixth Circuit: Transfers. (Note, this is a different "equity theft" case from the one SCOTUS heard this week and in which IJ filed this amicus brief on behalf of one of our clients.)
• Seventh Circuit (2021, en banc): Indiana's sex-offender registration law does not violate the right to travel. Neither does it violate the Ex Post Facto Clause. And, for good measure, it does not trigger heightened scrutiny under the Equal Protection Clause. District court (on remand): I get it, guys. That must mean that the law fails under rational-basis review. Seventh Circuit (this week): It does not.
• District court: It is clearly established that police officers need a good reason to point a gun at someone. But this Springdale, Ark. officer allegedly pointed a taser at a woman without a good reason. Qualified immunity! Institute for Justice: But wait! It is also clearly established that officers can't threateningly wield a flashlight without a good reason. Eighth Circuit: Ah, but the officer had a good reason to point the taser. Dissent: No, he didn't, and anyway that's for a jury to decide.
• During an August 2020 riot in Minneapolis, man (per the feds) adds accelerant to a fire that causes $1 mil damage to Target's headquarters, takes requests from friends for items to pilfer, and, among other misdeeds, brags about it on social media. Eighth Circuit: No need to disturb his conviction or eight-year sentence.
• Long Beach, Calif. animal control officer approaches woman running on the beach with her unleashed dog—a violation of city ordinance. Later, the woman calls animal control to file a complaint about one of the officers, whom she says was aggressive. The officer she speaks with threatens to sue her. Ninth Circuit (unpublished): The First Amendment prohibits gov't officials from threatening citizens on the gov't's behalf. Dissent: The officer also has a First Amendment right to sue and threaten to sue.
• Epic Games, makers of the immensely popular Fortnite cross-platform video game, sues Apple, alleging that various App Store policies violate federal antitrust law and California unfair competition law. Apple mostly wins, but Epic prevails on state unfair competition, but then Apple wins some attorneys' fees … look, it's a really long opinion and we already had to read that Facebook antitrust decision, so you can read the Ninth Circuit's opinion (and partial dissent) yourself.
• In 2013, man is walking to bus stop and accepts a ride from an acquaintance who'd serendipitously driven by. Yikes! Shortly thereafter, Denver police give chase to the vehicle, which had been involved in an incident earlier that day. The acquaintance and his two brothers shoot at the police, hitting one officer in the shoulder. They crash. (One brother escapes on foot; another is shot dead; the third is taken into custody.) The man crawls out of the vehicle and is lying on the ground with his hands raised when the officer who'd been wounded arrives and (without communicating with another officer who was already there or giving any orders) shoots at the man 12 times. A round shatters his spine. Denver to public: Good shoot! Comported with dept. policy. Denver in litigation: In fact, it was "patently obvious criminal conduct," and the city can't be held liable for failing to train officers not to do obviously inappropriate things like shooting out of anger. Tenth Circuit: The jury verdict stands. The city is on the hook for $2.4 mil and the officer is on the hook for $131k.
• Cybersecurity company: Microsoft lied when it said it had a product a lot like ours and made $43 billion! Eleventh Circuit: Hmm, looks like you got the patent for your product the day before you filed this lawsuit. Well, anyway, how much did you actually end up with in sales? Company: Nothing. But we would have made, like, a lot if it weren't for Microsoft's lies. Eleventh Circuit: Ok, what evidence do you have? Maybe a lost profits expert or a survey or something? Company: We don't need any. Eleventh Circuit: Wrong.
• District court: Whoa, this new set of Florida voting rules is off the chain! I'm enjoining a bunch of them and putting the state under VRA preclearance review for a whole decade. Eleventh Circuit (over a dissent): Nope, although few parts of the law have First Amendment problems.
• The Alabama Constitution of 1901 was enacted with the specific purpose of establishing white supremacy. To accomplish this goal, the 1901 constitution, among other things, contained a provision disenfranchising anyone convicted of a crime of moral turpitude. After the Supreme Court held that provision unconstitutional in 1985, the state enacted a new constitutional amendment that disenfranchised only those who committed felonies involving moral turpitude. So we're good now? Eleventh Circuit: Yeah, this is fine. Dissent: Let's count the ways in which it is not fine.
• And in state court news, the Massachusetts Supreme Judicial Court has elected to use its "extraordinary superintendence powers" and hold that about 27,000 defendants who pleaded guilty to DUI from 2011 to 2019 are entitled to a conclusive presumption of "egregious government misconduct" and to the suppression of the breathalyzer results if they seek to withdraw their plea—thanks to an investigation that uncovered "a history of intentional withholding of exculpatory evidence" and "blatant disregard of court orders" at a Massachusetts State Police crime lab unit. But defendants still have to show that they wouldn't have pleaded guilty if they had known about the misconduct. And if they're tried again, their sentence will be capped at the original sentence, unless (as happened with the defendant in this case) that original sentence was illegally low.
• And in amicus brief news, IJ is urging the Georgia Supreme Court to hold fast to certain state law protections against the abuse of civil forfeiture; namely, that officials must actually give property owners notice of why the gov't is taking their stuff, and that forfeiture cases are to be dismissed and property returned if a hearing is not held within a 60-day deadline. Either or both of which mean the Decatur County Sheriff's Office's forfeiture complaint against the owners of a scrap-metal business should've been tossed, and the owners should get back the bank accounts, vehicles, business properties, and a former residence that were seized from them.
• And in cert denial news, the Supreme Court has declined to reconsider the doctrine of absolute prosecutorial immunity in a case involving prosecutors who, kid you not, violated the Thirteenth Amendment's ban on indentured servitude. The petition gave the Court the opportunity to jettison the ahistorical, atextual doctrine entirely—or curtail it so that prosecutors who act outside the bounds of their statutory or constitutional authority lose their immunity (a longtime and salutary exception to immunity that has fallen into disuse).

In 2017, Kimberly Dunckel and her husband bought a severely dilapidated property in a rural, residential neighborhood in Winston-Salem, N.C. after officials said their plan to open an animal sanctuary for unwanted and injured animals would be no problem. But the city reneged! Earlier this year, and though the sanctuary and its 70 animals have been good neighbors, officials demanded that the Dunckels comply with an array of confusing and arbitrary zoning rules, including a ban on events (like their regular education classes for small groups of schoolchildren), that threaten the sanctuary's viability. So this week, Kimberly and IJ filed a lawsuit under North Carolina's Constitution, which protects the right to make peaceful and productive use of one's property and the right to pursue a chosen occupation. Click here to learn more.

Comments

[John F. Carr]

The complaint alleges that when Josh shit himself the manager shouted it to the world. That makes a difference in my mind, less in the mind of the court which considers it only an aggravating factor.

The private/public distinction echoes the legal dispute over "upskirt" photos. The Supreme Judicial Court of Massachusetts ruled, correctly, that the state law about secret naughty pictures did not apply in public places. The legislature amended the law to apply to upskirt type shots of private parts in public places.

[Dr. Ed 2]

What surprised me was no mention of ADA. If you have a medical condition (i.e. taking antibiotics) which requires more frequent trips to the restroom, that becomes a reasonable accommodation which UPS denied, with resulting injury (wearing feces-contaminated pants has potential medical consequences).

The other thing that surprised me was no suit against the Teamsters. He (presumably) was paying dues to them, and hence they had a fiduciary duty to represent him and apparently didn't.

[John F. Carr]

A short term medical condition is not necessarily a disability.

[Dr. Ed 2]

Ummm, do you have a citation on that?
I've heard the exact opposite in ADA trainings.

[Ken Arromdee]

Actually, the decision here quotes an upskirt photo case from Texas which comes to the opposite conclusion:

"A, a young woman, attends a ‘Fun House,’ a public place of
amusement where various tricks are played upon visitors.
While she is there a concealed jet of compressed air blows her
skirts over her head, and reveals her underwear. B takes a
photograph of her in that position. B has invaded A’s privacy.

Restatement (Second) of Torts § 652B cmt. c, illust. 7 (1977). The Texas Supreme Court in Valenzuela adopted the Restatement without evident narrowing of this provision. 853 S.W.2d at 513. The analogy to Amin’s situation is straightforward: like A, Amin was in a public place, and like B, Castro violated his privacy by taking what should have been a private matter and exposing it to public scrutiny."

[Krayt]

This is why we can't have nice things.

[John F. Carr]

The defendant in the Minneapolis case argued that it was unfair to show a video of him burning a building when he was on trial for arson. It might make him look like an arsonist when he was merely a rioter. The camera in the Target building (arson charge) didn't get a good look at his face. Could have been anybody who set the fire. It was only coincidence that he emerged from the Target building after the fire started and went to a bar where the camera got a good look at his face as he set a fire (riot charge rather than arson, presumably because there wasn't enough interstate commerce in the bar).

[David Nieporent]

During an August 2020 riot in Minneapolis, man (per the feds) adds accelerant to a fire that causes $1 mil damage to Target's headquarters, takes requests from friends for items to pilfer, and, among other misdeeds, brags about it on social media. Eighth Circuit: No need to disturb his conviction or eight-year sentence.

That's unpossible; I've been told by the MAGA crowd here that nobody was prosecuted for these riots.

[Dr. Ed 2]

Eight years for ALL OF THAT.
Eight years for putting feet on Nancy Pelosi’s desk.

Equity????

[David Nieporent]

Nobody got eight years for putting feet on Nancy Pelosi's desk. Why do you feel the need to lie?

[Krayt]

If they broke it into line items, it would probably look something like this:

7 years 11 months 30 days -- invading the capital and driving out politicians.
1 day -- putting your feet up on Nancy's desk

[John F. Carr]

The desk guy hasn't been sentenced yet. His biggest sin was having a stun gun. Possession of a stun gun may put his guideline sentence in arson territory.

https://www.courtlistener.com/docket/58945815/united-states-v-barnett/?page=2

[Artifex]

That’s unpossible; I’ve been told by the MAGA crowd here that nobody was prosecuted for these riots.

Nah, not so much. You have been told that the perpetrators of these riots were under prosecuted, and the poor fools who offended progressive sensibilities were over prosecuted, but don’t let that get in the way of a great strawman.

Actually I must admit you have shown yourself more clever or at least more brazen than the typical klansman. I can imagine your exact argument being deployed in the old Jim Crow South.

“I hear from those civil rights activists that there is no racial equality in the South. Well we have this one mixed race drinking fountain over here. Problem solved !”

[Purple Martin]

This a year old. I'm not motivated enough to update for the higher end numbers today, but generally, DoJ were busy little beavers prosecuting crimes committed during the period of protests.

Earlier this month, woman from my hometown. Since you're a fan of the NY Post, search on:

Washington State woman sentenced to prison for setting 5 Seattle police vehicles on fire during 2020 protest
By David Aaro, Fox News, March 4, 2022 2:37am

A Washington State woman was sentenced to five years in prison Tuesday for setting nearly a half dozen police vehicles on fire during protests in downtown Seattle in 2020.

Margaret Aislinn Channon, 26, from Tacoma, was captured on video using fire and aerosol cans to light five Seattle Police Department vehicles on fire during a May 30 protest – following the death of George Floyd, according to a news release from the Department of Justice.

U.S. District Judge John C. Coughenour said her actions did “tremendous damage to Black Lives Matter in Seattle.”

How did you miss that? It was in all the papers. Oh, that's only one you say? OK, try this, from six months ago:

Records rebut claims of unequal treatment of Jan. 6 rioters
By MICHAEL KUNZELMAN, JACQUES BILLEAUD and ALANNA DURKIN RICHER, The Associated Press, Aug. 30, 2021 at 3:04 am

An Associated Press review of documents in more than 300 federal cases stemming from the protests sparked by George Floyd’s death last year shows that dozens of people charged have been convicted of serious crimes and sent to prison.

The AP found that more than 120 defendants across the United States have pleaded guilty or were convicted at trial of federal crimes including rioting, arson and conspiracy. More than 70 defendants sentenced so far have gotten an average of about 27 months behind bars. At least 10 received prison terms of five years or more.

If you'd like, btw, look up the average sentences of Jan 6 defendants either pleading guilt or found guilty by a judge or jury (yes, a few requested bench trials but probably shouldn't have).

[Artifex]

Mostly I was just poking fun at David's dishonest strawman. That being said, your sources seem pretty silly.

Your point is what ? Some women gets sent to prison for arson on multiple police cars so this is the equivalent to putting on Buffalo horns and sitting at Nancy's desk ?

Actually it's quite illuminating to read your sources. Nowhere do they actually even articulate arguments that rebut the claim of unequal treatment. The argument seems to be that since 120 defendants across the US and pled guilty or were convicted, it's equivalent. They just assert it. That is some serious Sarcastro level derp. False equivalence between some very violent crimes and looting, contrasted with trespassing.

This suggests a serious project. I can't imagine the main stream press taking it up. My suspicion is that they wouldn't like the results so it won't get done. Let's compare and contrast. How many cases of arson occurred on Jan 6th vs the BLM riots ? How many cases of looting ? How many murders ? How many cases of assault and violence can we actually count on recorded media ? Now throw in trespassing. Anytime an individual can be shown trespassing in past video we tally it. Now, take a look at charges and convictions in both BLM riots and January 6th riots. Normalize this number by the actual number of violations we can actually determine and we have some basis for objective measure. Then split this out by major crimes such are arson, murder, assault and robbery and minor crimes such as trespassing and jaywalking. Let's see what the numbers say.

This might be a little biased since the leftists and Antifa types actively attack journalists and the right wing crowd does not, so you will have more honest footage of the right wing crowds. My guess is that you will find significantly more incidents of left wing malfeasance and a much lower rate of both charge and conviction. Of course we don't know for sure until we do the exercise.

Care to risk some actual money on what we will find ?

[LawTalkingGuy]

It’s telling how prosecutorial immunity under Imbler is intimately intertwined with the judicial process. Because the prosecutors are dear friends participating in the magnificent and sacred judicial process they get some immunity too.

[Ed Grinberg]

During an August 2020 riot in Minneapolis, man (per the feds) adds accelerant to a fire that causes $1 mil damage to Target's headquarters, takes requests from friends for items to pilfer, and, among other misdeeds, brags about it on social media.

"Mostly peaceful [but fiery!] protests."

[Krayt]

Long Beach, Calif. animal control officer approaches woman running on the beach with her unleashed dog—a violation of city ordinance. Later, the woman calls animal control to file a complaint about one of the officers, whom she says was aggressive. The officer she speaks with threatens to sue her. Ninth Circuit (unpublished): The First Amendment prohibits gov't officials from threatening citizens on the gov't's behalf. Dissent: The officer also has a First Amendment right to sue and threaten to sue.

Dog catcher as (possibly elected) government official: theory vs. practice