The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Volatile behavior, boorish flirtation, insufficient collegiality.
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: No judicial immunity for personally locking up some kids and no community caretaking exception for a cop on the beat.
- House of Representatives (Jan. 2021): Due to the COVID-19 pandemic all members gotta wear masks. If you don't it's $500. Three members: That violates these five constitutional provisions. D.C. Circuit: Ah, but since the House was acting in its legislative capacity those don't matter because of the One Clause to Rule Them All, the Speech or Debate Clause. Legislative immunity and case dismissed.
- In 2021, the feds and the state of Florida allowed the Seminole Tribe to offer online sports betting—indeed, the tribe obtained the exclusive right to offer online sports betting, even by people not physically on tribal land, while sports betting remained illegal in the rest of the state. Brick-and-mortar casinos objected, arguing that this impermissibly allowed gaming outside of Indian lands. D.C. Circuit: Some of this might violate state law, but we're not touching that. The feds' involvement in the agreement satisfies the APA.
- NC State University professor rankles his colleagues by, among other things, criticizing a proposal to add a question about diversity to student course evaluations and writing a blog post declaring that the "[Association for the Study of Higher Education] Has Become a Woke Joke." His department responds by removing him from his program area and basically making it impossible for him to advise graduate students. He sues for First Amendment retaliation. Fourth Circuit: Sounds like he should have been more collegial. Dissent: "My friends in the majority . . . have developed a new 'bad man' theory of the law: identify the bad man; he loses."
- How do you spell a challenge to a Navy COVID-19 vaccine mandate that, pursuant to orders from Congress, has been rescinded and where the Navy has, in addition, removed all prior adverse actions associated with denials of religious exemptions? Fifth Circuit: M-O-O-T. Concurrence: But I would also spell M-U-N-S-I-N-G-W-E-A-R. Dissent: Perhaps it's true of Caesar's wife, but the Navy is not above suspicion.
- Allegation: After Montgomery County, Ky. officials are ordered to obtain exculpatory evidence from a witness and turn it over to the defense, a prosecutor instead tells the witness to destroy the evidence. (She does.) Sixth Circuit: That is "seemingly unbecoming" but nevertheless within the prosecutor's traditional role as an advocate. Absolute immunity. Concurrence: No, no, prosecutors don't have discretion to disregard a court order. We should have granted qualified immunity.
- Seventeen-year-old student is required to participate in police ride-along for a class, and the Hammond, Ind. officer she shadows spends the day groping her, making lewd remarks, and even taking her to a remote location where he offers her to another officer for sex. Officer: This mere "boorish flirtation" was just "making for an exciting ride along." District court: Qualified immunity. Seventh Circuit: Reversed. "Sexual assault is an intentional act that never serves a legitimate governmental purpose."
- Oregon law makes it a crime to surreptitiously record conversations with another person without their knowledge . . . unless you're a cop performing official duties, in which case, record away! Project Veritas—which has something of a history of secretly recording conversations—challenges the recording ban as a violation of the First Amendment. Ninth Circuit: And they're right. The ban is unconstitutional. Dissent: We should just sever the exceptions for law enforcement and then the ban is fine.
- It is obviously unreasonable for an off-duty, out-of-uniform police officer to lose his temper on the road, follow another motorist home, box him in his driveway, scream profanities, and point a gun at him when the other motorist is nonthreatening. So says the Tenth Circuit, reversing a grant of qualified immunity to a (now-former) Chaves County, N.M. sheriff's deputy. Claims against the county, which hired him in spite of his history of volatile behavior, are on the table, too. (This is an IJ case.)
- If you want to proceed anonymously in a lawsuit, it's best not to have a history of trying to drum up publicity for other lawsuits you've been involved in. So holds the Tenth Circuit in a decision denying leave to proceed as a Jane Doe, but allowing for some information to be filed under seal.
- As settlers began occupying Wyandotte land in the 18th century, its people agreed to a series of treaties that removed them to present-day Kansas and then to Oklahoma. The feds later dubbed the treaties unconscionable, awarding the Tribe about $3 mil in damages with $100k earmarked to purchase lands for the feds to put into trust. The Tribe first invested the funds, later commingling them with other funds, and eventually bought a 10-acre lot in a Wichita, Kan. suburb it sought for trust status. The feds took the land into trust in 2020 and ruled the Tribe could operate gaming there. State: The murky accounting means that the funds used to buy the land weren't the earmarked funds, so no trust should follow and no gaming should happen. Tenth Circuit: The feds properly relied on expert accounting material in granting trust status and correctly concluded that the Tribe could conduct gaming on the parcel. Partial dissent: The feds needed to do more when deciding to allow gaming.
- And in en banc news, the Ninth Circuit (over several dissentals) will not reconsider its decision that the Cruel and Unusual Punishment Clause prevents Grants Pass, Ore. officials from ticketing homeless people for, among other things, sleeping in public parks or in their cars. (IJ joined with some friends in an amicus brief to argue the Excessive Fines Clause prevents such ticketing.)
- And in state court news, after two arguments and three briefings in which IJ (as amicus) made the case that it violates due process for state trial courts to depend on fees generated from convictions to keep their lights on, the Michigan Supreme Court decided not to decide—dismissing the case as improvidently granted. Phooey! But we wouldn't be surprised to hear these arguments again soon.
Friends, a very solid civil forfeiture reform bill is working its way through Congress at the moment, recently passing out of the House Judiciary Committee by a unanimous vote. Click here to read The Washington Post Editorial Board's endorsement of the legislation. Or click here for a breakdown of some of the bill's key provisions.
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“Sexual assault is an intentional act that never serves a legitimate governmental purpose.”
Are we talking about the sense of sexual assault used by lawyers or the sense used by human beings?
Back in the 1990s the Supreme Judicial Court of Massachusetts decided a case about a forcible search of a woman’s vagina. The warrant to search down there probably shouldn’t have issued, but we don’t want to hold anybody responsible, so qualified immunity.
Is the District Court really claiming that the prohibition on a state actor offering a minor girl to another officer for sex is not “clearly established?”
That makes about as much sense as some other qualified immunity decisions.
Minor might be more severe of a punishment, but a woman of any age would be wrong, sans a prostitute, which would be illegal anyway.
Is it clearly established as a *constitutional* violation where redress can be sought in federal court, as opposed to a state-law one?
After Montgomery County, Ky. officials are ordered to obtain exculpatory evidence from a witness and turn it over to the defense, a prosecutor instead tells the witness to destroy the evidence. (She does.) Sixth Circuit: That is “seemingly unbecoming” but nevertheless within the prosecutor’s traditional role as an advocate.
Does the 6th know how to spell O-B-S-T-R-U-C-T-I-O-N.
I have no doubt that the prosecutor behaved in a way consistent with tradition…
Yeah, that shouldn’t have been a question of immunity to civil suit. It should have been a dismissal of the original criminal case and at least one new criminal case for perversion of justice and violation of civil rights, with a side order of contempt of court.
This decision is an abomination. It notes that the 3d Circuit disagrees, so there is a Circuit split on the matter. SCOTUS should take it up, but likely won’t.
Its in favor of just another thumb-on-the-scale government prosecutor.
Im not surprised at all given how much horrific actions government actors keep getting away with.
Biden’s government is really out of control. The buck stops with that disgusting pedophile.
Which disgusting pedophile? Hunter or Joe?
In the Navy case, the appeal is moot but the District Court still has jurisdiction to look for a reason to please Judge Ho.
I have never read an opinion by a judge as petulant as that one by Ho. Apparently he thinks he can overrule the Supreme Court.
“Seminole Bingo” is one of my favorite Warren Zevon songs.
Choctaw Bingo:
https://youtu.be/4KB4dVMQfRE
https://www.cnn.com/2023/07/07/politics/dc-bar-rudy-giuliani/index.html
The left isn’t even attempting fair play anymore.
IANAL so help me out here. How is it unfair to disbar him for filing a suit he knew to be fraudulent?
Because they’re begging the question. A lot of people did, and still do, think that the suits had merit.
Do they have any admissible evidence?
Not much, because the left destroyed all possible evidence that there could be. In any normal situation, the rules of spoliation would have applied.
There was no spoliation. More than 80 judges, many of them Republicans, found no merit at all in the allegations of fraud. Ditto multiple Republican election officials and attorneys general.
That’s not really true. They found no evidence, because all of the possible evidence was destroyed. You can’t cover up the windows to a ballot counting building, shuffle thousands of ballots in in a truck in the middle of the night, kick out all observers, and then claim “WELP, there’s no evidence of fraud!”
The judges found against the claims not because there was no merit, but because there was no remedy they could order other than forcing those states to redo the entire election.
One, and perhaps two judges, bit, and said show me the money. Remember, lawyers, you’re under oath, and lying under oath is bad, mmmmmkay?
So, election fraud. What happened?
“Uhhhh…not much.”
fin
Claims of fraud are perennial, and both parties do it.
I relate a story where my wife was a “poll observer” sent out during Obama 1 by the Democrats. They gave her a phone, and said if she saw any intimidation, don’t engage, but call one of their roving lawyers to deal with it. She saw nothing.
Then at 8 pm, the polls closed, the Democrat won obviously, so they declared the election fair and ok. But it was really preperatory work to beat the loud drums of fraud just in case.
All sides do it all the time. Trump just got way out of hand.
I’m not understanding. She was a poll observer, was told, “Hey call us right away if you see intimidation.”, and since she saw nothing, she made no calls. That is NOT Dems doing prep work for alleging fraud in the case of a loss. Here is what *that* would look like: “Mrs Krayt, we want you to call us throughout the night, alleging Republican intimidation. That way, we have set up a claim if we lose the election. Don’t forget to do this at least several times.”
Sounds like the Dems bent over backwards to avoid doing anything unethical, and your wife acted with honor and integrity, in not inventing bogus claims. In other words; the system worked as it should, and worked perfectly in your wife’s case.
Can you explain how the fact pattern that you describe shows that the Dems were laying the groundwork for a possible subsequent claim? I’m just not seeing it here.
If it wasn’t an election that favored Democraps, it would have gotten an adverse inference declaration.
Liar. The windows were covered but Republicans were in the room, as the official election procedures call for. They do not call for people to be outside the room peering in; those people were just randos who weren’t part of the process and had no role in election counting or verification. There were no trucks in the middle of the night, no “all observers kicked out.” None of this happened.
I can’t tell if you’re stupid/gullible or just a deliberate liar. But given that you’re a Nazi troll… no, actually, that doesn’t help narrow it down.
And, no, the judges rejected the claims of fraud on the merits, finding that there was no reliable evidence of any fraud. Procedural complaints such as “You shouldn’t have used drop boxes” or the like were indeed rejected on the grounds that the only possible remedy — throwing out the election results — was unwarranted.
Again, there will never be reliable evidence of fraud if you and your jogger friends are allowed to destroy all of the evidence.
No evidence of any sort was destroyed.
80 cases went to trial?
In most cases, someone who does this would not be disbarred, but at worst disciplined. You can argue that (a) the fraud here was much more widespread than the typical case and (b) it involved a much more important issue, a national election, than the typical case. But it still smells politically motivated.
Exactly.
Let’s not omit the fact that Giuliani has refused to show any remorse for his behavior, has not acknowledged that what he did was wrong, and doesn’t believe that he should be subject to any discipline at all.
If we take your claim of standard punishment at face value, then it would seem appropriate that his attitude and defiance should amplify the punishment.
Why should he have to show remorse? He hasn’t been convicted of a crime, nor have they proved he knew he was peddling anything false.
It’s a requirement for a struggle session.
You are ignorant of the facts.
https://s3.documentcloud.org/documents/23868906/2023-07-07-issuance-letter-and-hearing-committee-report-giuliani.pdf
As for the stupidity of arguing that he doesn’t need to show remorse since he hasn’t been convicted of a crime…if your parents taught you that the only time you apologize is when you’ve committed a crime, then your entire family failed you.
Basically, the committee is persecuting him.
By the way, what happened to Kevin Clinesmith?
Slap on the wrist, a wink, a nod and a attaboy?
…if your parents taught you that the only time you apologize is when you’ve committed a crime, then your entire family failed you. . . .”
Jason,
No, it’s even worse than that. If your parents taught you that you only apologize when you’ve been *convicted” of a crime…
It’s “parent” not “parentS”, don’t be such a bigoted parentist.
compare:
https://justthenews.com/government/courts-law/dc-bar-restores-status-convicted-ex-fbi-lawyer-who-deceived-fisa-court-during
The criminal case was eventually dropped, so there could be no remedy on that front. He was suing civilly for being arrested on falsified evidence. That’s where the immunity comes in.
As I said above, this is an abomination. If true, the prosecutor needs to spend some jail time. But it won’t happen.
I appreciate your response.
As is by now well established, IANAL. In the US, is it possible for a defence lawyer to call one of the prosecuting attorneys to the stand to ask them questions like, “have you handed over all exculpatory evidence to the defence”, “have you offered a deal to any witnesses in return for their testimony?”, etc. so that later, if it turns out that they tried crap like this but skated on absolute immunity in a civil suit, they could be done for perjury – or alternatively would have to disclose, etc. for fear of a subsequent perjury charge?
And in en banc news, the Ninth Circuit (over several dissentals) will not reconsider its decision that the Cruel and Unusual Punishment Clause prevents Grants Pass, Ore. officials from ticketing homeless people for, among other things, sleeping in public parks or in their cars. (IJ joined with some friends in an amicus brief to argue the Excessive Fines Clause prevents such ticketing.)
Recognizing Martin, the ban was only on using other materials (blankets, bedding, etc.). The real world implications are troubling, and under Martin/Johnson, it’s now likely impossible for a city to prevail. If there’s 9,999 shelter beds, but 10,000 homeless, then there’s not enough for everybody– so the ban can’t be enforced. Obviously if a city starts building out free beds, it will attract grifters faster than it can possibly construct them.
But that’s still not good enough. The homeless can reject a shelter bed if there’s a religious component to the shelter– apparently the First Amendment is offended if your free bed requires you to see a cross. If you jettison the religious component, then that’s still not good enough. Any such place is going to have to have rules, such as “Don’t burn the place down.” Per Johnson, a claim that somebody is too mentally ill to follow the rules makes the bed unavailable. Needless to say, it’s going to be impossible to prove somebody ISN’T mentally ill and is just saying that so they can sleep outdoors.
So I think what cities have to do here is play hardball and just stop being so nice. Per the ruling, the waiver only applies to the involuntarily homeless– so arrest everybody who does it and dismiss the charges if they’re homeless. Obviously, the cops on the scene have no way of knowing if they’re homeless, they could just be camping. And just because somebody was homeless yesterday, doesn’t mean they’re homeless today, so if you see them again arrest them again. Incident to the arrest, do a warrant check and inventory their belongings, it may be possible to arrest them for something else (drugs, stolen property, etc.). Nothing in the decision prevents waking somebody who is sleeping in the park, or turning on floodlights at night, or having directional speakers play “Baby Shark” after hours. The park also seems like a lovely place to test tear gas grenades, the city can hardly be held responsible for the squatters who aren’t supposed to be there.
If none of that works, then we can escalate, but I suspect all but the most determined “campers” will find somewhere else to be. Cities don’t have much other choice, because as of now every piece of public property in the Ninth Circuit is a homeless shelter.
“every piece of public property in the Ninth Circuit is a homeless shelter”
The rich ex-Big Law lawyers on the court don’t care. They drive from their suburban home to guarded underground parking. No homeless at their golf or tennis club.
Try sleeping on the courthouse steps though.
Some intrepid soul should just unlock the building the Ninth Circuit actually sits in and let people camp there. Share the pain and all that.
>Nothing in the decision prevents waking somebody who is sleeping in the park, or turning on floodlights at night, or having directional speakers play “Baby Shark” after hours. The park also seems like a lovely place to test tear gas grenades, the city can hardly be held responsible for the squatters who aren’t supposed to be there.
That’s like saying that if homeless are camped in the middle of the street, you can drive down the street normally, and any homeless you run over aren’t supposed to be there so it’s not your fault they get run over.
Of course if you try this you’ll go to jail for murder. The excuse “they aren’t supposed to be there, so we are permitted to act like they aren’t there” is not legally valid. If you’re not permitted to keep the homeless out of parks unless they have shelter, you’re certainly not permitted to play loud music to discourage them from being in parks–the courts will just say that you’re playing the music to keep them out, and you’re not permitted to keep them out. It doesn’t matter that you *say* “Honest, it’s just coincidence, I’m not playing the music for the purpose of driving them out”–courts will deduce your motivations even if you don’t say them explicitly.
Testing tear gas grenades will put you in jail for assaulting the homeless who aren’t supposed to be where you’re testing the tear gas grenades.
If you think you’ve found a clever loophole in the law, you probably haven’t, since the people who make the law are as smart as you. https://xkcd.com/1494/
The opinions only prevent the imposition of civil or criminal penalties. Music isn’t a criminal or civil penalty, neither is light. And, again, the laws explicitly still apply to NON-homeless, which means the police can round them up and lock them up for the night– if it turns out they’re homeless, then that’s a defense, but hey cops aren’t psychic.
If somebody is indeed sleeping on the street and I run them over, then that’s not murder; I had no way to know they were there. Likewise, if lights are on a timer and it happens to be inconvenient to homeless people, the city isn’t liable; they had no way to know the homeless would be there. Same if there’s a lobbed tear gas grenade; it was dark, we had no idea anybody was there, and the officer will say so in court.
It’s possible the Ninth Circuit would expand their opinions to prevent all this too, but hey, make them do it. What’s more, as it works its way through the court system, at least the cities will have bought some peace as this gets litigated.
“…or having directional speakers play “Baby Shark” after hours.”
Are you trying to start a riot? That’s a warcrime!
So, at best, the people get some say in what part of the commons is surrendered to the parasites. The actual surrender is non-negotiable, the people are forced to either sacrifice to build the parasites shelter or sacrifice the commons for the parasites to infest.
But even that overlooks that the parasites are mobile and the Ninth Circuit jurisprudence makes it a purely local inquiry– it doesn’t matter if City A has 10,000 beds, the parasites can simply relocate to City B and start over. Any city that even attempted to have “enough” would be overwhelmed with parasites, as Los Angeles and San Francisco already are. The only winning move is to arrest them for something else or to drive them out of the Ninth Circuit where these rules don’t apply, then they can be arrested there.
Wait, are you the asshole commenter from a few months ago who thought prisons were too comfy?
Not an asshole. Just a guy who observes that we’re far too soft on criminals and parasites, and we’re predictably accumulating more of both. The liberal vision of America is for the people to be sucked dry by parasites and hunted by predators, and that these results are silently forced by the Constitution. I object; the government is by, for, and of the people, not predators and parasites.
“writing a blog post declaring that the “[Association for the Study of Higher Education] Has Become a Woke Joke.”
I don’t understand why he couldn’t sue the ASHE for defamation and interference with contract or whatever. It was their President at their conference who lambasted him, with the students at his university being present and then responding to what ASHE said about him. How is that *not* libel?
Youv’e read enough of EVs posts to know that defamation doesn’t occur when the facts are true OR the statements are opinions. What was the FACT that was false that gives rise to defamation.
As for tortious interference, criticism, even if unfair, doesn’t give rise to this tort. They would have to have to have “improperly” used threats or influence to get the University to breach the contrat (and just to head this off I personally hate the improper standard as no one actually knows what it entails). That also means the court would have to find there is a breach of contract. I don’t what his contract stated, because it isn’t relevant to this court case it wasn’t mentioned, to even know if that happened. Either way though there isn’t enough to establish this tort either
I completely disagree with the 4th Cir on his section 1983 claim though. He pretty clearly at least pleaded a plausible claim of retaliation. They basically turned “collegiality” into a permissable heckler’s veto.
At first blush political question seems like it would have been a more fitting basis for dismissing the House of Reps case in the DC Circuit, but it wasn’t even mentioned AFAICT.
IJ is too modest. From their link, here are the major points in the civil-forfeiture-reform Fifth Amendment Integrity Restoration (FAIR) Act
Works for me.
I wrote to my Congressman about eliminating equitable sharing back in 2000 and got a personalized response instead of a form letter. It was too politically difficult to pass back then. The Civil Asset Forfeiture Reform Act was the best he could do.
DoJ could have gone in on civil rights grounds, you moron.
Biden’s the President. The buck stops with him, you imbecile.
Sure he does. He could have the FBI or DOJ investigators swoop in, the way he does every time a white says something mean to a black.