Short Circuit: A Roundup of Recent Federal Court Decisions

Butterfly knives, and prison atrocities, and a clueless detective.

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

Friends, the Short Circuit team has a new podcast, Unpublished Opinions, where we go beyond the federal courts of appeals to see what's on the legal minds of IJ attorneys. In this first episode, Patrick Jaicomo airs some grievances about how (actual) unpublished opinions are treated, and Anya Bidwell muses on SCOTUS oral arguments.

• As part of Special Counsel Jack Smith's investigation into the January 6, 2021 riot at the U.S. Capitol, the government sought a search warrant in January 2023 that directed Twitter to produce records related to the @realDonaldTrump Twitter account. Along with the warrant, the feds also issued a nondisclosure order prohibiting Twitter from disclosing the existence of the search warrant for 180 days. Twitter refused to comply with the search warrant until it had litigated its First Amendment challenge to the nondisclosure order. After Twitter lost that challenge and was three days late producing the requested documents, the district court fined the company $350k for contempt. D.C. Circuit: Affirmed in all respects.
• As the First Circuit details, and as the president and fellows of Harvard College have by now surely taken to heart, it is vitally important to promptly notify your insurance carrier of any potential claims.
• Connecticut, like most other states, had a religious exemption from its mandatory vaccination law. Facing declining vaccination rates, the legislature repealed the exemption. OK under the Free Exercise Clause? District court: Case dismissed. Second Circuit: It's within the religion clauses' "play in the joints." A statutory claim is undismissed, though. Dissent: Free exercise should go forward. There's some hazy underinclusiveness.
• Goodhart's Law states, "When a measure becomes a target, it ceases to be a good measure," a phenomenon partly explained by people cheating to hit their target. Witness, for example, the former Dean of the Fox School of Business at Temple University, who falsified data to boost the school's online MBA ranking to #1 in U.S. News and World Report. Third Circuit: And his conviction for wire fraud is affirmed.
• Under federal law, a "prevailing party" in a civil rights case can obtain attorneys' fees. The Supreme Court has said that to prevail, a plaintiff needs a "judicially sanctioned change" in the parties' legal relationship. But does that include preliminary injunctions? Almost every other circuit has said "yes," but the Fourth Circuit has said "no." Until now! Fourth Circuit (en banc): A PI can be enough if it materially alters things; otherwise, the gov't could game the system. Dissent: "Prevailing" means "prevailing." (IJ filed an amicus brief urging this result.)
• In a South Carolina prison unit for prisoners with serious mental illness, two convicted double-murderers with histories of severe prison violence are given special privileges and allowed to move freely about. They brutally murder four other prisoners, which is undetected for hours—despite a guard making five perfunctory rounds—until they report themselves. Fourth Circuit: Qualified immunity. "[A]trocities occur in prison without the prison bearing responsibility." Dissent: The majority opinion is "a blueprint for how prison officials can avoid liability."
• After prosecutors tell St. Tammany Parish, La. officers that it would be unconstitutional to arrest a former colleague who criticized a detective's handling of a murder case, they arrest him anyway. District court: Could be unconstitutional retaliation for his protected speech. IJ amicus brief: Everyone in America enjoys the right to call Detective Daniel Buckner "totally clueless." Fifth Circuit (unpublished): Denial of qualified immunity affirmed.
• Man is pulled over for driving without a license plate. Officers, one of whom is DEA, find guns and marihuana cigarette butts. He's sentenced to nearly four years in prison (and three years of supervised release) for being an "unlawful user" of a controlled substance while possessing a gun. Fifth Circuit: Conviction reversed. The gov't didn't show he was high at the time he was stopped. "[O]ur history and tradition may support some limits on an intoxicated person's right to carry a weapon, but it does not justify disarming a sober citizen based exclusively on his past drug usage."
• That loud noise you just heard was a sonic boom caused by this 2-1 ruling from the Fifth Circuit—holding that Mississippi's felon-disenfranchisement law violates the Eighth Amendment's prohibition on cruel and unusual punishment—shattering the sound barrier on its way to en banc rehearing.
• As telecom providers seek to expand 5G service, they need new infrastructure—something most municipalities allow via hefty fees. But some municipalities take a different tack. Pasadena, Tex. imposes aesthetic standards with minimum-spacing requirements between poles, which essentially make it impossible for the providers to actually build out the infrastructure. Fifth Circuit: The Federal Telecommunications Act preempts such chicanery. (And a pro tip: defendants should file an answer if they want to raise an affirmative defense.)
• Jackson, Miss. police want to talk to man who's near a crime scene, but he flees. An officer shoots him. (He lives.) Man: I was unarmed and running away! Officers: He turned around and pointed a gun at us! District court: Well, you shot him in the back and he doesn't have a gun in the surveillance video, so … no qualified immunity. Fifth Circuit (unpublished): Reversed. Plaintiff fails to point to a case that clearly establishes officers can't shoot people in these circumstances (or argue that it's so obvious every officer would know).
• You might need a cup of joe to stay awake through this ho-hum Sixth Circuit opinion applying settled circuit law to uphold an injunction against Starbucks, which must reinstate fired employees while the NLRB considers the union's allegations of unfair labor practices. But Judge Readler must have had a quadruple shot of espresso in his morning macchiato! His concurrence is a strong brew, blasting the circuit's long history of applying a "feeble test" that "stacks the deck in the Board's favor," rather than the traditional equitable test that applies to just about every other type of injunction.
• Within seconds of opening a couple's front door, Gurnee, Ill. police officer shoots, kills their dog. Officer: The dog was barking and growling. Couple: The dog was being friendly. Seventh Circuit: The officer's body cam shows an "inkblot of a blur" and lacks audio. This goes to a jury. Reversed.
• In a series of events that can only be termed "unfortunate," an Illinois inmate being processed for release to a halfway house is ordered to sign an "Electronic Detention Program Agreement" before trotting out the door. Man: But you've given me only the signature page of the agreement, and the top of the page says it "appl[ies] only to sex offender[s]," which I decidedly am not. What gives? Clinical services supervisor: Sign it! Man: But … why? Clinical services supervisor: Sign it! Man: No! Anyway, long story short, they issue him a disciplinary ticket and he's kept in custody for another year and a half. Seventh Circuit (over a dissent): The man's refusal to sign the agreement (which, it turns out, would have been binding on him whether he signed it or not) was protected speech, so his First Amendment retaliation claim against the supervisor can go to trial.
• Minnesota couple is prescribed hydroxychloroquine and ivermectin for COVID-19, but pharmacists at Walmart and Hy-Vee refuse to fill the prescriptions. Can the couple sue the pharmacies under the common law "right of self-determination"? Does it make a difference if they have "not defined the elements of a claim in tort that has not been recognized anywhere"? The Eighth Circuit has the answer.
• Tou Thao is one of four now-former Minneapolis police officers involved in killing George Floyd. Thao suggested that they bind Floyd's feet to his waist instead of kneeling on his neck, told EMS to arrive more quickly than another officer previously requested, and held back bystanders calling on officers to get off Floyd. He's convicted of failing to intervene in Chauvin's use of unreasonable force and of failing to give Floyd medical aid. Eighth Circuit: The evidence was "not overwhelming," but a reasonable jury could still find him guilty. Conviction affirmed.
• Former reality TV personality Josh Duggar used his work computer to download hundreds of child-pornography images. When federal agents arrived to execute a search warrant, they walked straight up to Duggar, who pulled out a cell phone and said he wanted to call his attorney. Instead, agents seized the phone as evidence. He then made a series of incriminating statements. Eighth Circuit: And it was totally fine to use those statements against him despite the fact that he wasn't Mirandized. Conviction affirmed.
• James Huntsman, son of Utah billionaire Jon Huntsman Sr., tithed more than $2.6 mil to the LDS Church between 2003 and 2015. When he learned in 2019 that the church had been using tithe funds for commercial projects instead of purely charitable purposes, he asked for the money back and was rebuffed. He sued, and the district court granted summary judgment to the church. Ninth Circuit: Reversed. These secular fraud claims don't implicate the ecclesiastical abstention doctrine, and there's enough here to go to trial.
• Plaintiffs owned butterfly knives before they moved to Hawai'i but have to give them up because the state makes their possession a misdemeanor. They'd like to own one of these knives—also known as "balisongs"—again and file a Second Amendment lawsuit. Ninth Circuit: At the Founding "arms" included "fascines, halberds, javelins, pikes, and swords" so the Second Amendment sure-as-Sherlock applies to butterfly knives. This law is unconstitutional.
• Allegation: Early in the COVID-19 pandemic, California officials moved inmates from a prison suffering a major outbreak to another prison with zero COVID, taking barely any precautions. The new prison suffered an outbreak, killing a guard and 25 prisoners. Ninth Circuit: No qualified immunity because that's clearly a state-created danger and thus a due process violation. Dissent: Everything about COVID then was novel and uncertain, so nothing was clearly established about the gov't's legal duties.
• Detainee at Polk County, Fla. jail sues officials for, among other things, scanning his legal mail into a computer system. Eleventh Circuit: The First Amendment requires opening legal mail in the detainee's presence and checking only for contraband. That doesn't include scanning it and saving it on a computer that jail officials can access. Case undismissed!
• Pop quiz, hotshot: If a district court adds extra words to your agreed injunction, do you (a) ask the district court to reconsider, (b) file an appeal, or (c) ignore the plain language of the injunction for a while, then start obeying the injunction as written, then try to go back to ignoring it again before finally (seventeen years after the injunction was entered) asking the district court to delete the extra phrase as a "clerical error"?  Those of you flirting with option (c) may wish to uncork a bottle of out-of-state wine and consider this Eleventh Circuit opinion as a cautionary tale.
• And in amicus brief news, IJ is urging the Second Circuit to hold that qualified immunity does not apply to claims brought under the Religious Freedom Restoration Act and thus does not shield these FBI agents—who put plaintiffs on the No Fly List in retaliation for their refusal to become informants—from suit.

Altimont Wilks has turned his life around since his release from prison, and he's now the proprietor of not one but two friendly neighborhood corner stores in Maryland, one in Frederick and one in Hagerstown. But! Relying on a strained, unreasoned, and downright capricious reading of USDA regulations, the feds have now barred Wilks from accepting SNAP benefits at his stores. So this month, he and IJ filed suit to force the USDA to stop badgering people who have paid their debt to society and are trying to earn an honest living. Click here to learn more.

Comments

[SMP0328]

Jackson, Miss. police want to talk to man who’s near a crime scene, but he flees. An officer shoots him. (He lives.) Man: I was unarmed and running away! Officers: He turned around and pointed a gun at us! District court: Well, you shot him in the back and he doesn’t have a gun in the surveillance video, so … no qualified immunity. Fifth Circuit (unpublished): Reversed. Plaintiff fails to point to a case that clearly establishes officers can’t shoot people in these circumstances (or argue that it’s so obvious every officer would know).

What about Tennessee v. Garner, 471 U.S. 1 (1985)?

[Rev. Arthur L. Kirkland]

Three Republicans -- appointed by Reagan, Bush the better, and Trump -- figure police should be able to shoot unarmed citizens in the back.

The Fifth Circuit is the dumbest circuit.

[ReaderY]

It appears that in the 5th Circuit, a plaintiff either has to provide a specific on-point case, or specifically plead that the behavior is obviously unconstitutional. The plaintiff never specifically said in his complaint that it is obvious that shooting an unarmed person in the back is unconstitutional. So he waived any right to argue it.

[Jerry B.]

“Plaintiffs owned butterfly knives before they moved to Hawai'i but have to give them up because the state makes their possession a misdemeanor. They'd like to own one of these knives—also known as "balisongs"—again and file a Second Amendment lawsuit. Ninth Circuit: At the Founding "arms" included "fascines, halberds, javelins, pikes, and swords" so the Second Amendment sure-as-Sherlock applies to butterfly knives. This law is unconstitutional.”

Who are you people, and what have you done with the Ninth Circuit?

[Bob from Ohio]

"what have you done with the Ninth Circuit?"

Freak panel.

En banc reversal incoming.

[The original jack burton]

When you see someone walking around with a missing finger joint up to the first knuckle, you can guess they've been fooling around with a real balisong trying to get it to work like they do in the movies. You forget to use a practice version and you just might pay the price for it.

[Currentsitguy]

Or they are Yakuza.

[Mr. Bumble]

Or they were a punch press operator.

[Jerry B.]

“Minnesota couple is prescribed hydroxychloroquine and ivermectin for COVID-19, but pharmacists at Walmart and Hy-Vee refuse to fill the prescriptions.”

Well, of course. They weren’t following the science.

[DaveM]

This is incredibly alarming — both of those drugs are FDA-approved, and have been on the market for a long time. Ivermectin in particular was being investigated in 2020 by the NIH specifically for use as an anti-viral to combat COVID. I cannot imagine it was right for these pharmacies to outright refuse to fill them. (See https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7539925/)

Granted, the legal theories brought by these plaintiffs seem unlikely to succeed, but the refusal of these pharmacies to fill an authorized request is still very worrying.

Hey Walmart: is this a corporate-approved policy? Do you authorize your pharmacists to refuse legitimate orders? Medical licensing bodies: is it your regular practice to grant licenses to pharmacists who pick and choose which orders to obey?

[Magister]

I cannot imagine that you read the linked opinion.

[BravoCharlieDelta]

Do you think any of the Conspirators will analyze this obviously illegal Special Counsel appointment on the Hunter Biden investigation?

[bacchys]

I'd expect Blackman to weigh in, without noting Durham was similarly appointed Special Counsel while a US Attorney.

Andrew McCarthy has already beclowned himself at National Review. With Durham, he said there was no point in being "fastidious" about the requirement to get someone outside DOJ. Now, with Trump-appointed Weiss, he's outraged!

[DaveM]

Not "obviously illegal", just obviously an attempt to cover up. This is not going to end well for them, however. Once the guilty start trying to hide, it just tells you where to start looking.

[ObviouslyNotSpam]

First they cried about the AG not appointing a special counsel, and when he finally appointed a special counsel, they cried that appointing a special counsel is evidence of a coverup...

https://twitter.com/daveweigel/status/1690068859691143168

[David Nieporent]

An attempt to cover up what? How can giving the guy prosecuting Hunter even more authority to do so be a "cover up"?

[SomeGuy 2]

In a South Carolina prison unit for prisoners with serious mental illness, two convicted double-murderers with histories of severe prison violence are given special privileges and allowed to move freely about. They brutally murder four other prisoners, which is undetected for hours—despite a guard making five perfunctory rounds—until they report themselves. Fourth Circuit: Qualified immunity. "[A]trocities occur in prison without the prison bearing responsibility." Dissent: The majority opinion is "a blueprint for how prison officials can avoid liability."

Personally, I would favor just keeping the criminally mentally ill in solitary confinement-- but "advocates" have been successfully limiting the use of solitary, so it's not really an option. Okay, this is the alternative, sometimes the evil lunatics will kill each other, human life is fragile and if you put people in close contact they have the option to murder.

The only thing that makes this somewhat close is that the murderers had minor privileges that made the killings easier-- the prison has to exercise some discretion here. But they're all evil lunatics, which is why they're in the ward in the first place, so it's not as if they can pick a boy scout. Which takes us back to permanent solitary or just accepting there's going to be some attrition as they kill each other off. The estates of the deceased can, of course, recover against the actual killers.

[FivebySixThree]

All violent felons should be in solitary confinement. When they are such a threat to society they cannot allowed to walk free among it they safety of other prisoners should be treated the same as the general public

[bevis the lumberjack]

The 8th clearly wins the Asshole Circuit of the Week. Three pretty bad decisions.

[David Nieporent]

They all seem pretty obviously correct.

[bevis the lumberjack]

1. I’m not sure that cop actually committed a crime. He verbally tried to stop it and intervened to get EMS there faster. I’m not sure what the guy is supposed to do to avoid being charged there. Shoot Chauvin?
2. Pharmacists shouldn’t be overriding orders from doctors except in exceptional circumstances. Nothing exceptional here.
3. Cops show up, guy tries to call his lawyer, cops confiscate his phone before he can. I guess you’re in the “no civil protections for child abusers, even if only accused” crowd. No Miranda for those assholes. Or I guess it’s possible you simply don’t like the Duggars. You’re entitled to an attorney and to understand your rights, at least until the government says you’re not.

[hoppy025]

None of those cops should have been convicted. The fact is, blacks are, as a group, a menace to society. Whites, and especially white police, should always get the benefit of the doubt when using force against black criminals. Full stop.

[Noscitur a sociis]

No Miranda for those assholes.

He was Mirandized. There’s even a picture of his signed waiver in the opinion.

[David Nieporent]

I’m not sure what the guy is supposed to do to avoid being charged there. Shoot Chauvin?

What's a cop supposed to do if he sees a murder being committed right next to him? Shooting the perp is certainly one choice. (Seems extreme here; he could've simply pushed the perp off the victim.) One thing he obviously should not do is protect the perp so that nobody else can intervene either.

2. Pharmacists shouldn’t be overriding orders from doctors except in exceptional circumstances. Nothing exceptional here.

These seem pretty exceptional. A quack out of state doctor was prescribing snake oil. But in any case, what does that have to do with the actual legal issue the court was addressing? They weren't suing for injunctive relief ordering the pharmacists to dispense the drug.

3. Cops show up, guy tries to call his lawyer, cops confiscate his phone before he can. I guess you’re in the “no civil protections for child abusers, even if only accused” crowd. No Miranda for those assholes. Or I guess it’s possible you simply don’t like the Duggars. You’re entitled to an attorney and to understand your rights, at least until the government says you’re not.

You're bloviating, and making up shit about me. The cops confiscated his phone because they had a search warrant entitling them to his phone (and evidence was indeed found on it, making it rather prudent that they didn't let him have access to it after they arrived!) That has nothing to do with his right to a lawyer. He could've called his lawyer from another phone before speaking to them. (He could've said nothing at all!) The only question the 8th circuit was addressing was whether it was a custodial interrogation.

[Magister]

So bevis joins DaveM in not reading the opinions.
1. The cop had an obligation to try to stop Chauvin; footnote 2 on page 5. That could perhaps be as little as telling him to stop or pulling on his arm. Maybe even continuing to suggest the alternative he initially did in the first minute but did not in the eight minutes after.
2. Exceptional circumstances like drugs not FDA-approved for COVID-19 treatment, and from an out-of-state doctor? Or the ordinary circumstance that Minnesota does not provide a right “to compel an unwilling healthcare provider to participate in a plan of care that is contrary to its judgment, policy, and/or public health agency guidance”?
3. As Noscitur a sociis already posted, the signed Miranda waiver is in the opinion. It is part of explaining that a reasonable person in the same position would not believe they were in custody.

It seems that Leave It To Bevis episodes are commonly founded on a comical misunderstanding.

(Delayed in replying so I expect someone will have already posted about this.)

(Edit: yes, I should have refreshed the comments in another window first.)

[Absaroka]

“Exceptional circumstances like drugs not FDA-approved for COVID-19 treatment”

Generally speaking, it’s OK for doctors to make off-label prescriptions: “From the FDA perspective, once the FDA approves a drug, healthcare providers generally may prescribe the drug for an unapproved use when they judge that it is medically appropriate for their patient.”.

I tend to favor a world where, as much as I value a pharmacist’s advice, the pharmacist defers to the doctor’s judgement about what drugs may be appropriate. The doctor will have usually examined the patient and be aware of all the patient’s health issues. The pharmacist, IMHE, only knows about other prescriptions I have gotten from him. It’s great if he notices that DrugA might negatively interact with DrugB and points out the potential conflict, but he just doesn’t know enough about my particular case that I want him to be second guessing the doctor.

There are quack physicians, of course, but when I have in my judgement found a competent one, I don’t then want to have the pharmacist being a hurdle.

(from the other side of the political aisle, remember pharmacists refusing to fill morning-after prescripts a few years ago? That’s what you get when you start letting pharmacists pick and choose which prescripts to fill)

[Magister]

It's the ordinary circumstance that was significant, though.

[Nelson]

"2. Pharmacists shouldn’t be overriding orders from doctors except in exceptional circumstances. Nothing exceptional here."

Except for anything involving reproductive health, right? "I don't like abortion" isn't and exceptional circumstance.

[mulched]

Here’s a case for an enterprising 1A public interest law firm (or law prof). Small town newspaper raided by local cops

https://kansasreflector.com/2023/08/11/police-stage-chilling-raid-on-marion-county-newspaper-seizing-computers-records-and-cellphones/

[Kazinski]

Got to give Twitter some props for not just rolling over for secret subpoenas of electronic communications.

[Jason Cavanaugh]

Do you know the difference between a subpoena and a search warrant?

Do they deserve props for contesting the order four days after the compliance deadline without having produced any of the information covered by the *ahem* search warrant? Is that the ‘rule of law’ that you people always like to brag about?

They did the wrong thing, and they were held in contempt for it appropriately. No, they don’t deserve “some props” for such behavior.

[bevis the lumberjack]

You can’t read to good, huh? They contested the order immediately, which may have contributed to the material being turned over a few days late.

It’s unclear who the hell the “you people” you think Kazinski is speaking on behalf of are. Looks like maybe you’re pissed that he’s in the “you people” who think we have rights and it pisses you off when people try to assert them in a way you don’t approve.

You, of course, have them but everyone else should get on their knees and lick the government’s boots.

[Sarcastr0]

The contested the nondisclosure part, not the turning over part. I hear that nondisclosure is pretty ordinary and generally upheld, but via a nonlegal blog so I can’t be sure.

https://jabberwocking.com/a-brief-timeline-of-the-twitter-contempt-fiasco/

[bevis the lumberjack]

Yeah I understood that about the non-disclosure part being the only thing they contested. Kim not sure what is usual and what isn’t, but I don’t blame Twitter for doing it. In their position I probably would have done the same thing.

Perhaps I’d have complied with the warrant while contesting the non-disclosure demand, I don’t know. I wouldn’t have been late so as to avoid penalties, but I’m guessing that was an internal screw up at Twitter and not an intentional act.

I just objected to Cavanaugh’s vitriol toward Twitter because Twitter did something in the neighborhood of reasonable.

[Jason Cavanaugh]

I really appreciate that you allow me to have fun like this.

Let's talk 'context clues' and remedial English, shall we?

The first clue to what I was specifically referring, is that I corrected Kaz on the use of the term 'subpoena,' when it was in fact a search warrant.

The second clue is that I said they contested the order after the compliance deadline. Which of the two have a compliance deadline? Answer: the search warrant.

The third clue is that I mentioned they did not produce any of the required evidence from the search warrant.

The extra bonus clue, which only a Clever Charlie would've noticed (and you are not one), is that I specifically referenced a fact from the opinion itself - that they waited until 4 days after the deadline to contest "it." When put in context from the other clues you obviously missed, and being a specific fact from the primary source document you evidently didn't bother to read, the remark is obviously referring again to the search warrant.

Now, I don't know him personally, but there is a slim, non-zero chance that I could get LeVar Burton to stop by and teach you a thing or two about reading and comprehension.

"You people" are the "Republicans" who bray about the 'rule of law' and then sit by and nod their heads in approval when people violate those same rules. Twitter did not in fact, do the right thing or even close to the "right thing" because they ignored a lawful search warrant and did not comply when required to do so.
It was not their prerogative to be late in handing over the material requested by the lawful search warrant, and that is not how a legal challenge is supposed to play out.

Confusingly, they were held in contempt and fined for their behavior. That seems unusual if they were in fact doing something reasonable.

You mentioned below that you would've complied with the warrant and contested the non-disclosure. Why is that, if what Twitter did is to be commended, or considered 'reasonable?'

Perhaps it's because even you can, once in a great while, recognize the right way to go about something, versus the wrong way.

Anything else you need cleared up today?

Take a look, it's in a book.

[ObviouslyNotSpam]

You appear to have missed the fact that none of this matters.

They are perfectly happy to burn it all down if they can't have their way. The "rule of law" is for losers, as Donald Trump, American Caesar, might say.

[bevis the lumberjack]

All these vague identifiers today. Who is “they” that want to burn it all down and what is it that they want to burn down?

Like Krychek above, I’m probably going to regret asking this, but…….

[Kazinski]

Search Warrant, subpoena isn't the issue. Yeah you are right, it was a search warrant, but that's not the issue Twitter was contesting, it was the 6 month gag order.

And they deserve props for contesting that.

If the feds showed up at my bunker, I mean house, with a search warrant could they put a gag order on me for 6 months that I couldn't disclose it? I don't think so, why should a third party be different?

And of course whenever the feds want to they tip off the news media and camera crews show up, when they want silence they impose a gag order.

[David Nieporent]

You can’t read to good, huh? They contested the order immediately, which may have contributed to the material being turned over a few days late.

They did not contest it immediately, and it did not contribute to the lateness.

[hoppy025]

"That loud noise you just heard was a sonic boom caused by this 2-1 ruling from the Fifth Circuit—holding that Mississippi's felon-disenfranchisement law violates the Eighth Amendment's prohibition on cruel and unusual punishment—shattering the sound barrier on its way to en banc rehearing."

The two judges in majority, two moonbats, one appointed by Karter and one by Klinton.

It's absurd given that the 14th Amendment expressly approves disenfranchise. All 8th Amendment jurisprudence, most of it from the drunken Anthony Kennedy, is a joke.

[A nerdy Fred]

"With great power comes great responsibility". Courts have held that prisons have "near plenary" power over prisoners. There should be a legal duty to go with their ethical duty to control people known to be violent and to monitor the facility.
Prison officials get to hide behind both qualified immunity and a doctrine in which they are allowed to be negligent without accountability unless they meet a standard of "deliberate indifference", which is a term of art that is harder to prove than it sounds like.
That said, understaffing likely contributed to this. If you read about a guard union complaining about not enough people, on that subject they deserve attention. Understaffing kills.

[BravoCharlieDelta]

I don't get the joke.

Do you think the appointment of USA Weiss was legal?

[Krychek_2]

I will probably regret having asked this, but why do you think it’s illegal?

[SRG]

Because if it's legal, BCD will be sad?

[Mr. Bumble]

Because the governing regulation says the special counsel shall be appointed from outside the department?

§ 600.3 Qualifications of the Special Counsel.

(a) An individual named as Special Counsel shall be a lawyer with a reputation for integrity and impartial decisionmaking, and with appropriate experience to ensure both that the investigation will be conducted ably, expeditiously and thoroughly, and that investigative and prosecutorial decisions will be supported by an informed understanding of the criminal law and Department of Justice policies. The Special Counsel shall be selected from outside the United States Government. Special Counsels shall agree that their responsibilities as Special Counsel shall take first precedence in their professional lives, and that it may be necessary to devote their full time to the investigation, depending on its complexity and the stage of the investigation.

https://www.law.cornell.edu/cfr/text/28/600.3

[BravoCharlieDelta]

Additionally to add to Mr. Bumble’s cite, the entire purpose of the Special Counsel is to avoid appearances of conflict of interest between the investigator the Department of Justice.
https://www.ecfr.gov/current/title-28/chapter-VI/part-600

§ 600.1 Grounds for appointing a Special Counsel.

The Attorney General, or in cases in which the Attorney General is recused, the Acting Attorney General, will appoint a Special Counsel when he or she determines that criminal investigation of a person or matter is warranted and—

(a) That investigation or prosecution of that person or matter by a United States Attorney’s Office or litigating Division of the Department of Justice would present a conflict of interest for the Department or other extraordinary circumstances; and

(b) That under the circumstances, it would be in the public interest to appoint an outside Special Counsel to assume responsibility for the matter.

How does appointing Weiss meet the criteria set in (a)?

Weiss is the definition of conflict of interest.

Personally, I believe the reason for the appointment is now every possible thing is shielded from outside investigators from Congress or other agencies. Hunter Biden has an impenetrable shield protecting him that can’t be pierced.

[BravoCharlieDelta]

I promise you even as obvious as this is, these people will find some way to rationalize and excuse it.

[BravoCharlieDelta]

The DOJ also filed to dismiss all charges against Hunter, ostensibly so they could refile them in a different venue.

[Purple Martin]

Bumble, the Attorney General may delegate his authority and appoint a special counsel under several different authorities. 28 CFR Part 600 (600.3) requiring the SC to be from outside the government, is the one Acting Attorney General Rod J. Rosenstein used to appoint Robert Mueller.

The Code of Federal Regulations framework consists of internal rules set up by the DoJ. The AG also has statutory authorization to delegate his authority. I believe the appointments of Patrick Fitzgerald, Jack Smith, Weiss, and Durham were under 28 USC 510 (United States Code, not CFR).

Clear?

[BravoCharlieDelta]

That’s a good point, and I’d like to make three observations:

1.) Durham definitely was working the DOJ and thus was not independent of the DOJ like the Special Counsel is supposed to be. Strike one against his appointment.

2.) However, Durham was not involved in any of the investigations prior like Weiss has been. So at least there’s that degree of separation. One check in his favor.

3.) Durham softballing and slowrolling and pretty much not doing jack fucking shit proves why someone who gets appointed as SC shouldn’t be anywhere near the corrupt, rotten to the core DOJ. Ten billion strikes against Durham for being a covering-up piece of human shit. Barr probably chose him for his earlier role in covering up CIA crimes and knew he'd be good at protecting the government.

[Purple Martin]

BCD, aside from the SC appointment being under U.S. Code and not the CFR you cite (making the cite irrelevant), why do you believe a federal prosecutor, upon not reaching a judge-approved plea agreement with a defendant, proceeding to take the case to trial...is a conflict of interest?

Indeed, unless the prosecutor decides to drop the charges, it's what normally happens. In this case, Weiss previously said he had not yet reached a point of needing SC authority and if he did, he'd been assured he would receive it.

And...that's what happened. Unable to charge anywhere but in his own district (Hunter had waived venue for the plea), he now needs SC authority to bring charges in the venue where the charged crime occurred (either DC or CA).

So he asked for it and, as he'd been assured, received it.

Clear?

[Mr. Bumble]

You and the Queen can suck an egg. My response was to Krychek 2 and SRG and was framed as something I was not sure about, therefore the cite.

Clear?

[BravoCharlieDelta]

Queen, I know you truly believe that the Russian Hoax was a bunch of thoughtful, non-partisan government agents just following the facts and with a teeny tiny mistake here and there and that's why Durham didn't find anything.

And that's okay. For people like you there really isn't any amount of facts or evidence or argument to persuade you otherwise. The Democrat people in Government are your God. The Federal Elites breath life into you and provide you safety and care for your family. You worship them.

That's okay.

[BravoCharlieDelta]

There was credible testimony against the integrity and intent of Weiss’s acts as a federal prosecutor in the Hunter Biden case that hasn’t been refuted.

Clear?

Are these two statements by you congruent in their degree of confidence?

> I believe the appointments of Patrick Fitzgerald, Jack Smith, Weiss, and Durham were under 28 USC 510 (United States Code, not CFR).

>BCD, aside from the SC appointment being under U.S. Code and not the CFR you cite (making the cite irrelevant),

One is a qualified statement of belief, the second is clear assertion of fact.

That’s weird. Clear?

[Mr. Bumble]

Hey, what about Robert Hur?

[Purple Martin]

You are correct. Why is that weird?

The first was a qualified statement of belief, as I wasn’t sure it was § 250; that was just the first that came to mind. Not stating as a certainty, things that are not certain, is generally a good principle. And it’s good that I do so because, on checking, it's section § 500, not § 250.

The second was deducible as a clear and accurate statement of fact. Since Weiss was not appointed from outside of government, CFR § 600 is not applicable, leaving only the AG’s U.S.C. authority.

Since Clear seems to bother you so, any other questions?

[Purple Martin]

As mentioned, several authorizations are available:

Appointment of Robert K. Hur as Special Counsel ORDER NO. 5588-2023. APPOINTMENT OF ROBERT K. HUR AS SPECIAL COUNSEL.

By virtue of the authority vested in the Attorney General, including 28 U.S.C. §§ 509, By virtue of the authority vested in the Attorney General, including 28 U.S.C. §§ 509, 510, 515, and 533, in order to discharge my responsibility to provide supervision and management of the Department of Justice, and to ensure a full and thorough investigation of certain matters…

[Purple Martin]

Yes, search on: ORDER NO. 5730-2023 APPOINTMENT OF DAVID C. WEISS AS SPECIAL COUNSEL

[Mr. Bumble]

Last item in the order you posted.
....(e)Sections 600.4 to 600.10 of Title 28 of the Code of Federal Regulations areapplicable to the Special Counsel.

Seems to contradict which authority rules.

[Purple Martin]

Neither rules. Hur’s appointment was by U.S.C., not CFR. If you read the appointment order, note it goes on to apply CFR 600.2 and 600.4 SC procedures to the scope of delegated authority.

It annoyed me yesterday that your and BCD’s hot take just parroted the talking point (illegal appointment! ) flying around all day in both far left and far right echo chambers (i.e. the Andrews McCarthy and Weissman both tweeted the same thing), without pausing to even consider that, perhaps, the AG knows more than you about how to appoint Special Counsels? (Weissman and McCarthy too, and they, being former Assistant U.S. Attorneys, should know better,)

[Mr. Bumble]

To PM;
Have you seen the order naming Weiss as Special Council?
I've searched for it but haven't gotten a hit.