Short Circuit: A Roundup of Recent Federal Court Decisions

Deposition misconduct, grumpy interrogatories, and protesting the Lawyers' Mall.

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

Hey, look at that! SCOTUSblog's "Petition of the Week" is none other than IJ's cert petition in Gonzalez v. Trevino, a retaliatory arrest case that—so far—illustrates just how easy it is for officials to escape liability for throwing someone in jail for criticizing them. Many thanks to our amici who filed seven briefs in support of truth and justice.

• In 2021, the Federal Election Commission dismissed a complaint that alleged Donald Trump had impermissibly solicited "soft money" contributions to a super PAC. After the complainant sued to challenge the dismissal, two of the commissioners issued a statement that they declined to pursue the case in an exercise of prosecutorial discretion. District court: Well, that's that. The complainant loses. D.C. Circuit: Wrong! The commissioners had to issue the statement before the lawsuit. The case is remanded to the FEC so they can issue a second statement invoking prosecutorial discretion. Then the complainant loses.
• Man who taught at D.C. charter school pleads guilty to sexually abusing a student from 2004 to 2009. The victim then sues the school, among others, but the one-year statute of limitations has long since run. In 2019, however, a new law revives time-barred claims. District court: But there's no reviving claims that have already been adjudicated and dismissed. D.C. Circuit: But here they were dismissed without prejudice. Reversed and remanded. [Bonus vocab quiz from Judge Friendly: tergiversation.]
• Pro golfer walking in a midtown Manhattan crosswalk trips in a pothole next to a gas cap, permanently injuring himself and compromising his golf career. He and his wife sue the utility company and settle for $2.5 mil. A month later, they sue New York City. District court: Nope, you can't say the gas cap caused the fall in one suit and then turn around and sue over the pothole. Second Circuit (unpublished): Vacated! Their case against the utility was settled, which means no assuming the two claims are inconsistent (in the absence of a judicial endorsement of the first suit's claims).
• Police officer asks gun-rights protestors picketing outside the Maryland State House in Annapolis to move a few feet back onto a grassy square called the "Lawyers' Mall" to clear the sidewalk and roadway. They refuse, are arrested, and then sue for violation of their First and Fourth Amendment rights. While one can perhaps understand not wanting to be in a place associated with lawyers, the Fourth Circuit says the officer's request was quite reasonable—certainly enough for qualified immunity. Also, the court is rather perturbed by the recent trend of rabblerousers from across the political spectrum disrupting legislative proceedings.
• "We have always protected the Americans; we may, therefore, subject them to government." Or so claimed Dr. Johnson on the eve of the American Revolution. Later those Americans wrote a Constitution which used—among others—four words to define Congress's powers over the militia: organizing, arming, disciplining, and governing. If you're a Dr. Johnson connoisseur, you'll love the Fifth Circuit's attempt to subject those words to analysis, liberally drawing from his Dictionary of the English Language. It concludes the President likely has no power to punish Texas national guardsmen for not taking the COVID-19 vaccine because they were never federalized during the relevant period.
• Detainee at Lamb County, Tex. jail alleges he was not given water for three days and had to drink out of the toilet. Fifth Circuit (unpublished): Undismissed!
• DEA officer runs a team that turns out to be really good at disrupting the drug supply chain in New Orleans but not so good at turning in all the cash and property they seize from suspects, which they start pocketing for themselves. After stealing tens of thousands of dollars, forcing an informant to buy him a new truck, and suborning perjury, the officer is arrested, convicted, and sentenced to 160 months in prison. Fifth Circuit: And we affirm every aspect of that.
• Family members of individuals killed by guns that had been listed on the online firearms marketplace armslist.com sue, alleging that the website was negligently designed to encourage and assist firearms buyers and sellers in circumventing federal and state law. Are the negligence claims barred by Section 230 of the Communications Decency Act? Seventh Circuit: No need to answer that question, because plaintiffs haven't adequately pleaded a claim for negligence.
• Police in Arkansas stop car, find $34,918, hand it over to the feds. Feds sue to forfeit it. Car's driver appears and explains that the money was for a trip to Las Vegas. Gov't: In that case, please answer these "special interrogatories" about your bank records, driver's license, and other things. Man: Grumble grumble ::offers a mélange of objections and inadequate answers::. District court: The sanction for failing to comply with Rule G(6) (dealing with special interrogatories) is that your claim to the money is stricken. Eighth Circuit: Well, the guy certainly seems to have thought he complied with Rule G(6) since he answered some of the questions and objected to others. And the district court never actually ordered him to respond to the ones he didn't answer. So his claim to the money can proceed—for now.
• Eighth Circuit: Since we decided a few days ago that permanently denying non-violent felons from owning firearms doesn't violate the Second Amendment we're going to say the same for this defendant. Dissent: I disagree but "[m]ore to come."
• Idaho guy sells cocaine from his house to confidential informant. Subsequent search turns up more cocaine and a dozen rifles. Is his enhanced sentence for possessing guns while selling drugs a Second Amendment violation? Ninth Circuit: Using the Bruen standard we ask if there a historical analogue to this law. And we find there is because selling drugs while possessing a gun is a lot like burglary or robbery.
• In Bostock v. Clayton County (2020), the Supreme Court held that Title VII's prohibition on sex-based discrimination in employment includes perceived sexual-orientation discrimination. Does the same hold true for Title IX's prohibition on sex-based discrimination in education? Ninth Circuit: Sure does. So a lawsuit against the University of Arizona, brought by a former student athlete who alleges he was subjected to frequent "sexual and homophobic bullying" by his teammates, is undismissed.
• Medical-debt collectors sue to challenge Nevada law that requires them to provide written notification to debtors 60 days before taking any action to collect a medical debt. "Who could possibly know what it means to take an 'action to collect a medical debt'?" they cry. "The law is unconstitutionally vague!" Ninth Circuit: Seems pretty straightforward to us. Dissent: It seems straightforwardly preempted by the Fair Credit Reporting Act and the Fair Debt Collection Practices Act to me.
• "The CFPB's problematic conduct began during discovery," recounts the Eleventh Circuit, in this barn-burner of an opinion affirming dismissal of an agency enforcement action as a sanction for bonkers—truly bonkers—discovery misconduct, including objecting to obviously unobjectionable questions at deposition and having an agency witness read for an hour from a "memory aid" in response to a single deposition question.

Friends, if you get pulled over and you seem suspicious, the police may search your car. So what do police say makes a person suspicious? Quite a bit: It's suspicious if you act too nervous. 612 F.3d 341. Or too calm. 551 F.2d 991. It's suspicious if you make too much eye contact. 622 F.2d 1218. Or too little. 799 F.2d 704. It's suspicious if you travel with luggage. 625 F.2d 9. Or without. 555 F.2d 594. It's suspicious if you walk with too much purpose. 912 F.2d 1014. Or too little. 908 F.2d 497. It's suspicious if you take a one-way trip. 878 F.2d 469. Or a round-trip. 555 F.2d 594. It's suspicious if you travel with others. 799 F.2d 704. Or if you travel alone. 890 F.2d 1413. Which is all deeply silly and un-American, and at IJ we're doing something about it (other than tweeting viral tweets). Click here to learn more.

Comments

[John F. Carr]

Thank you for compiling the list of suspicious acts at the end.

[BillyG]

If the statute of limitations runs out. Then later is extended. Doesn’t that violate ex-post facto when applied to instances that had previously run out?

[LawTalkingGuy]

Ex post facto clause doesn’t apply to civil claims

[SMP0328]

The lawsuit against the school is a civil action. The Ex Post Facto Clause applies only to criminal laws.

[hoppy025]

Which is still ridiculous, and should violate general principles of due process. Legislatures shouldn't be able to create a new claim for civil damages that didn't previously exist.

For example, if a state passes a law allowing a victim of the Rev. Kirkland to sue him for infecting him with HIV, that shouldn't cover the instances of abuse that the Rev. committed prior to the law.

[The Margrave of Azilia]

"Police in Arkansas stop car, find $34,918, hand it over to the feds."

Stand and deliver!

[MollyGodiva]

There is something really odd going on in https://www.ca5.uscourts.gov/opinions/unpub/22/22-10124.0.pdf

That case says
"We have held, based on the Supreme Court’s decision in Bounds v.Smith, 430 U.S. 817 (1977), that “a prisoner who knowingly and voluntarily waives appointed representation by counsel in a criminal proceeding is not entitled to access to a law library."

However Bounds v.Smith says no such thing. Bounds v.Smith says that a prisoner does have a right to a law library if they are represented by counsel. It was circuit courts that somehow turned that on it's head an ruled that Bounds v. Smith also implies that a prisoner not represented by counsel does not have a right to a law library. But the quote is from a circuit court case, not SCOTUS.

[mse326]

1. I agree it is ridiculous interpretation BUT
2. The passage you quoted does say it is a circuit court opinion they are relying on: "We have held...". They are simply referencing the SCOTUS decision they were interpreting when making that prior ruling.

[MonitorsMost]

WTF Fourth Circuit? What do you think the “lawful” part of a “reasonable and lawful” order means? The police officers had to have a legal basis for ordering the protesters off of the sidewalk. Under that same section, that order is only lawful if the people are willfully and without lawful purpose obstructing or hindering the free passage of another in a public conveyance. Protesting is a lawful purpose. Just because it was a reasonable request by the officers does not make it a lawful request.

[bevis the lumberjack]

How are you on protesters blocking roads? If one is allowed, the other should be. If one isn’t then neither is the other.

Making them move to a certain place is bullshit. Clearing a public thoroughfare should be done. Personally, I think the cops should be more assertive clearing out road blockers.

[ducksalad]

Wait. You’re claiming it’s fine to “hinder the free passage of another” if you are protesting?

Officer: “You’re double parked and blocking the street. Move your car.”
Me: “Later. I’m eating lunch.”
Officer: “Not gonna work.”
Me: “Hmm...oh yeah, I’m also protesting.”
Officer: “Bingo! Have a good day.”

[bevis the lumberjack]

No, I’m saying exactly the opposite.

[Davedave]

It's obviously not a lawful purpose to do something completely unnecessary that in no way changes the impact of the protest, like refusing to step back 5 feet and leave space for pedestrians to walk freely.

It may be there was more to it than that, but as described the protestors were acting unreasonably by refusing to make such a slight concession.

[Gandydancer]

^^^^ Whoosh.

Also, daveliardave gratuitously changes 15' to 5'. This isn't significant to the case, but points to the fact that lying is a fundamental part of his style.

[Drewski]

That is not a accurate statement of the law. Nor is it the law anywhere, nor has it ever been. The Fourth's decision comports to real-life law.

[Toranth]

Ninth Circuit: Using the Bruen standard we ask if there a historical analogue to this law. And we find there is because selling drugs while possessing a gun is a lot like burglary or robbery.

And this is an excellent example of why Bruen was problematic: any court make up anything they want. Owning a gun is just like holding one and using in to threaten someone! Drug smuggling is completely different from smuggling drugs! Drug use is a unprecedented societal concern, unlike previous drug and alcohol concerns!
Why? Because we say so, that's why.

[Sarcastr0]

Also a problem with originalism!

[Toranth]

No, originalism (and not the strawman you have in your head), is pretty consistent. Thankfully, we have lots of writings about what people meant when the Constitution was written.

As opposed to the "living Constitution" folks, who freely admit that they want to change the law without actually bothering, you know, changing the law.

[ReaderY]

I think that if you can imprison a person, if you can subject them to forced labor, you can prohibit them from owning guns. The idea that the right to own a gun is somehow a more basic right than freedom from slavery and involuntary servitude seems to turn any conventional concept of ordered liberty on its head. It represents a special solicitude for guns analogous to Gorsuch’s special solicitude for Indians, more advocacy and special interest lobbying than judicial interpretation.

And people can be enslaved for “crime.” Not just certain kinds of felonies. “Crime.”

[ReaderY]

That said, it seems pretty obvious to me that selling drugs out of your own home is in no way analogous to burglary or robbery. It’s a non-violent crime. I think the state has the power to prohibit people convicted of it from owning guns, but not for the reasons the 9th Circuit stated.

[ReaderY]

In the Armslist case, believe the summary is incorrect. The 7th Circuit held that the legilature had extinguished the common-law tort of negligence by statute as applied to gun sales. It didn’t hold that the plaintiffs had failed to make out a negligence claim. It held that Wisconsin on longer recognized a negligence claim to make out. The only relevant claim would be under the statute.

[ReaderY]

What’s remarkable about the Hester case was the judge’s finding that, by giving inadequate answers and or objecting to some of the questions the United States posed in an interrogatory, Hester failed to show he had standing to claim ownership of, and thereby contest seizure of, the cash found im a backpack in his car.

Of course he has standing. The mere fact that the cash was found in a backpack in his car is sufficient connection to the cash to give him standing, even if he hadn’t made an affidavit or supported it by bank statements showing he had recently withdrawn the money.

Moreover, it seems questionable whether some of his “inadequate” answers really were inadequate. Or if some of the questions he objected were really relevant. For example, he answered a question about all states, privinces, or countries he ever had a drivers license issued in with “Virginia.” Perhaps he never had one in any other state.