Short Circuit: A Roundup of Recent Federal Court Decisions

Chalk, meme stocks, and a dog in peril.

New on the Short Circuit podcast: Searching for iCloud data, guns, and El Dorado.

• Allegation: In summer 2020, thousands of protesters gather in D.C., leading to much sidewalk-chalking of the phrase "Black Lives Matter"—a violation of D.C.'s defacement ordinance. No chalking-related arrests ensue. Around the same time, however, police arrest pro-life protesters for chalking "Black Pre-Born Lives Matter." Selective enforcement in violation of the First Amendment and the equal-protection component of the Fifth Amendment? (Shout out to you, Bolling v. Sharpe!) District court: No dice. D.C. Circuit: Agreed that there are no dice to be had on the equal-protection claim, since there are no allegations that D.C. officials had a discriminatory motive. But the plaintiffs have plausibly alleged dice under the First Amendment, which prohibits viewpoint discrimination whatever the gov't's motives might be.
• Naturalized American citizen from Morocco pleads guilty in 2006 to conspiring in 2001 to transfer money to mujahideen in Afghanistan and Chechnya. Uh oh! He also lied about that on his paperwork when he became a citizen in 2002. After serving 10+ years in prison, he's released and the feds begin the denaturalization process. He argues his lawyer never warned him that he could lose his citizenship by pleading guilty. Second Circuit (over a dissent): Nor was he required to.
• When environmental groups challenged the authorization of the Mountain Valley Pipeline—a 300+ mile underground pipeline to transport natural gas from West Virginia to Virginia—Congress responded by ratifying the agency decisions authorizing the pipeline, stripping the Fourth Circuit of jurisdiction to hear any challenges to it, and vesting exclusive jurisdiction in the D.C. Circuit. A valid exercise of the legislative power? Fourth Circuit (with concurrences): Yes, albeit a troubling one.
• Montgomery County, Md. school officials adopt Guidelines for Gender Identity for 2020–21 that permit schools to develop gender support plans for students, which allow implementation of these plans without the knowledge or consent of the students' parents and even authorize the schools to withhold information about the plans from parents. Concerned parents sue. Fourth Circuit (over a dissent): But their kids don't have gender support plans, so the parents have suffered no injury. Case dismissed.
• It's too late to challenge the FDA's 2000 approval of the abortion-causing drug mifepristone, says the Fifth Circuit, but agency decisions in 2016 and 2021 to loosen some restrictions on its availability might have violated the Administrative Procedure Act. (Though, per SCOTUS, nothing changes for now.)
• Attorneys: Consider not taking your work phone with you on international trips, lest you end up like this Texas immigration attorney whose phone was seized on his return home from Costa Rica. When he refused to unlock his phone, the feds took it and extracted all the data (including lots of privileged material) before returning his phone five months later. Fifth Circuit: All of which is totally fine! Even if the reason for searching him (a supposed connection to an int'l arms dealer) "appears dubious in hindsight," DHS was entitled to do it.
• Friends, it's best to avoid "rude comments and gestures" if you find yourself in San Benito, Tex. When a long-feuding neighbor called police on a homeowner for such contumely, an officer arrived and argued with the homeowner through a chain-link fence. When homeowner turned to go into his house, officer forced his way through fence, pushed homeowner to the ground, and arrested him. Fifth Circuit: Get off his lawn (at least until you get a warrant). Homeowner's false arrest claim should go to a jury. (But an excessive force claim and claims against the city were properly dismissed.)
• Police seize over $30k from Ohio couple they suspect of drug trafficking. Then they wait … and wait … and wait … for over 19 months before initiating a forfeiture proceeding (which they eventually abandoned), even as the couple repeatedly asked for the money and went so far as to file a lawsuit to get it back. Does that delay violate due process? Sixth Circuit (unpublished): Sure seems like it, and no prosecutorial or qualified immunity for the responsible officers.
• Kentucky high school student attends a political demonstration near the Lincoln Memorial. This leads to an interaction between the red-hatted teenager and a Native American man that goes viral. The media coverage is predominantly unkind toward the teenager, who alleges that media orgs defamed him by repeating the man's statements that the teen blocked him from leaving. Sixth Circuit: The man's statements were opinion, not fact, so they're protected by the First Amendment and not defamatory. Dissent: The reporting vilified the teen as a racist while the videos depict something entirely different. A jury should determine whether the media orgs exercised reasonable care in reporting an objectively verifiable factual statement.
• In response to a COVID-19 spike in November 2020, Kentucky barred in-person learning for all private and public elementary and secondary schools. A group of churches, religious schools, pastors, and parents sues the governor, alleging that the ban violated their First Amendment rights. Sixth Circuit: Qualified immunity all around. The ban applies equally to all schools, religious and otherwise, and was issued amid a vibrant debate on a constitutional issue. Concurrence: 2020 was a wild time; it's difficult to say that the governor acted in a "plainly incompetent" manner.
• Cook County, Ill. officials sue banks under the Fair Housing Act. Allegation: The banks made credit too readily available to some (minority) borrowers, leading to the borrowers' defaulting, leading to foreclosures on their homes, leading (and this is where the County's beef comes in) to vacant properties, lost tax revenue, and transfer fees. Seventh Circuit: That causal chain is way too attenuated for you, County, to be the one to bring the Fair Housing Act claim.
• Paris, Wisc. bans sex offenders from living within 6,500 feet (1.2 miles) of each other or of protected locations where children congregate. Together, these restrictions make all the more affordable, multifamily housing unavailable, thereby forcing one sex offender to leave town. He sues, saying the rule is an unconstitutional ex post facto punishment. Seventh Circuit: The proximity restriction on protected locations is fine, but the ban on sex offenders living within a mile of each other may well be a bridge too far.
• Over the course of several months, a Nebraska college student repeatedly sexually assaults a campus security officer (who is also a student) and taunts her. The school initiates Title IX proceedings and imposes a series of sanctions, including a no-contact order, weekly counseling sessions, and an order to read a book. The security officer, believing the student should be removed from campus, sues the college for violating Title IX. A jury finds for the security officer, but the Eighth Circuit reverses, deeming the school's behavior reasonable. Dissent: There's enough evidence for a jury to find for the security officer.
• Kansas City, Mo. officer summoned to the scene of a domestic dispute shoots dog who ran out the front door barking. Turns out there was no dispute at the home. Owners: The dog was 14 and had turned around to go back in the house when it was killed. Officer: It had turned toward my fellow officer. Eighth Circuit: Split-second decision. Qualified immunity.
• Allegation: Developmentally delayed California man confesses to a murder—sarcastically, after a 15-hour interrogation. The first DA on the case thinks he's innocent. The case is reassigned, and the second DA thinks he's innocent too. Then someone else confesses. Even so, the DA's office refuses to disclose the new confession (and again reassigns the case). The office finally drops the prosecution after the man spends nearly four years in pretrial detention. Ninth Circuit: The failure to disclose the other confession isn't a Brady violation (because it didn't affect the outcome of a judicial proceeding). But the wrongly detained man should get to try a different due process claim.
• Of the 21 states that have passed restrictions on transgender women competing in women's sports, only Idaho requires invasive physical exams (in the event that any individual disputes an athlete's sex). Ninth Circuit: Which most likely violates the Equal Protection Clause. Preliminary injunction affirmed.
• Remember back in 2021 when everyone on Reddit was buying "meme stocks" like GameStop and AMC, and the online broker Robinhood restricted trading? People who claim they missed out on buying more of the touted stocks sued. But, per the Eleventh Circuit, Robinhood's contract with traders gave it the right to do exactly what it did.

After DEA agents took $8.5k cash from him at Atlanta's airport, Brian Moore, Jr. spent over a year fighting the forfeiture and his attorneys incurred over $15k in legal fees. And he prevailed after the gov't threw in the towel, asking for the case to be dismissed with prejudice in an order returning the cash. But the district court declined to award the attorney's fees mandated by the Civil Asset Forfeiture Reform Act to substantially prevailing claimants like Brian. Now represented by IJ, he is appealing to the Eleventh Circuit. Click here to learn more.

Comments

[Jerry B.]

"But their kids don't have gender support plans, so the parents have suffered no injury."

Are you sure? Is the County required to reveal this to the court?

[Kleppe]

That was my thought as well. How could they know?

[Kazinski]

From the decision:
The parents have not alleged that their children have gender support plans, are transgender or are even struggling with issues of gender identity. As a result, they have not alleged facts that the Montgomery County public schools have any information about their children that is currently being withheld or that there is a substantial risk information will be withheld in the future. Thus, under the Constitution, they have not alleged the type of injury required to show standing

I think the court is probably right that this should, at this stage, be handled at the ballot box.

[Currentsitguy]

Perhaps. My concern is that the school hides the very fact that would give a parent the standing they need.

[Ben of Houston]

I have to agree. The very concept of standing is being perverted here to give a scenario where effectively no one can have standing.

[Ben_]

So a kid can tell the school she’s trans, and then that kid’s parents can resume the lawsuit.

[Nige]

This smacks of 'Look how I, a cis male, can just saunter into a female bathroom and attack its occupants whenever I want, thus proving trans people are dangerous!'

[Jerry B.]

"Allegation: The banks made credit too readily available to some (minority) borrowers, leading to the borrowers' defaulting, leading to foreclosures on their homes, leading (and this is where the County's beef comes in) to vacant properties, lost tax revenue..."

And next week, Cook County sues banks because they discriminated against minority buyers with poor credit histories by not making credit readily available.

[SomeGuy 2]

Per the opinion, the banks often lost out too, in that they didn't even recover the principal. So they went into high risk loans because if they don't it's a lawsuit, then they lost money and it's a lawsuit anyway. Residential mortgage lenders may want to find out if they can plausibly just not do business in Cook County without it being a lawsuit, this isn't worth the headache.

[BillyG]

And next week,...

Next week? That's what happened in the 90s. It's what caused the 2008 mortgage crisis.

[CindyF]

Rinse and repeat. Repeatedly.

[Jerry B.]

"Dissent: The reporting vilified the teen as a racist while the videos depict something entirely different. A jury should determine whether the media orgs exercised reasonable care in reporting an objectively verifiable factual statement."

MAGA Judge. Obviously.

[LawTalkingGuy]

“A dispute regarding a student's sex shall be resolved by the school or institution by requesting that the student provide a health examination and consent form or other statement signed by the student's personal health care provider that shall verify the student's biological sex. The health care provider may verify the student's biological sex as part of a routine sports physical examination relying only on one (1) or more of the following: the student's reproductive anatomy, genetic makeup, or normal endogenously produced testosterone levels.” Idaho Code § 33-6203

“Any one of the three exclusive procedures requires far more than a "routine sports physical" exam or simply asking whether a patient is female or not. As Lindsay's medical expert Dr. Sara Swobada described, analyzing a student's "genetic makeup" would require referral to a "pediatric endocrinologist" who would conduct a "chromosomal microarray" that would reveal a "range of genetic conditions" beyond sex chromosomes. Hormone testing would also require a "pediatric endocrinologist," and is not a "routine part of any medical evaluation." Of course, the expense and burden of these tests would be borne only by female students and their families.

Requiring a student to find a medical practitioner to examine their reproductive anatomy, which is what a typical gynecological exam entails, is unconscionably invasive, with the potential to traumatize young girls and women. As Dr. Swobada opined, examining a female patient's "reproductive anatomy" would necessitate inspecting a student athlete's genitalia and conducting a pelvic examination or transvaginal ultrasound to determine whether that student has ovaries. She further explained that pelvic examinations for young patients are generally not required for minors, including adolescents, and are only conducted when medically necessary "with sedation and appropriate comfort measures to limit psychological trauma." Yet the Act's sex verification process subjects girls as young as elementary schoolers to unnecessary gynecological examinations merely because an individual "disputes" their sex.”
Hecox v. Little, Nos. 20-35813, 20-35815, 2023 U.S. App. LEXIS 21541 (9th Cir. Aug. 17, 2023).

TL;DR: “Hey Idaho, this is some freak shit.”

[Longtobefree]

If only someone would invent a DNA test - - - - - - - - - - -

[LawTalkingGuy]

That’s what the chromosomal array is.

[Michael P]

That's the "genetic makeup" option mentioned in the statute. It's a lot more involved than a visual check for fruit-and-two-veg (the first option) but more available than an endocrinology assay (the third option).

LTG: "Hey VC, I have no idea what any of this medicine shit is."

[LawTalkingGuy]

I just quoted from the court opinion. Which quoted the statute and then quoted from the medical expert testimony. The doctors said if they want a confirmed biological sex determination they need a chromosomal array. You can probably do Y-STR testing on a sample, but you would still need samples.

[Michael P]

Like I said.

Y-STR is a dumb test to use to figure out whether someone has a Y chromosome or not. A cheek swab and optical microscope can answer that question, as opposed to needing a blood draw and chemical lab test to detect hormone levels.

[LawTalkingGuy]

Forensic labs do Y-str on many types of DNA samples to confirm or exclude a male profile.

[Michael P]

Are you assuming that transgender students are criminals? Or just that forensic labs use the same tests that would be used in other contexts?

[Noscitur a sociis]

I’m not really sure what you’re argument is over, but I think it’s pretty clear that you can determine the presence or absence of a Y chromosome with a comparatively simple, non-invasive test.

[SRG2]

That tells you whether someone is genotypically male or female. It doesn't tell you what their brain is telling them.

[Davy C]

Idaho doesn't much care what their brain is telling them.

[CindyF]

If they are a biological male and their brain is telling them they are female, they need mental counseling intervention.

[SRG2]

If they are a biological male and their brain is telling them they are female, they need mental counseling intervention.

“Biological male” is begging the question. On occasion, brain development, like physical development, is inconsistent with genotype. If someone has XY chromosomes but has full AIS, are they biologically male or biologically female? They’ll look like females and they’ll generally identify as female. As according to your reasoning they’re physically ill, should they be “healed” and transitioned to a male physical appearance?

You don’t know much if anything about this – just prejudice and wanton ignorance.

Other posters here who share your prejudices really don’t like the scientific research on this, e.g.: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC8955456/

[Toranth]

No, "biological male" is a definition.
Mutations are a thing. Some mutations cause people to develop badly, including looking like the opposite sex. You don't say that humans having five fingers is false because some small fraction of people aren't born that way. Your own linked paper agrees; it uses the term "biological sex: male" for those "transgender women".

Incidentally, while I cannot be sure with access to the raw data (all 24 points per group), that study looks pretty garbage. In the only chart shown, the medians for the "male" and "transgender woman" groups have significant overlap, while the "female" group is very different... yet the authors declare that the "transgender women" are more like the "female" group than the males.
And that's above and beyond the fact that they are doing a simple classification on a "male vs female brain scan".

I suspect there's a reason the only cite listed in pubmed is by a paper testing thousands of people showing that biological sex is a much better predictor of brain morphology than "gender identity".

[SRG2]

No, “biological male” is a definition.

It is a definition that nonetheless begs the question - because definitions cover almost all cases and yet CindyF, by applying the definition to every case, begs the question for the cases where the definition is insufficient.

You don’t say that humans having five fingers is false because some small fraction of people aren’t born that way.

I would say that almost everyone is born with five fingers on each hand but that someone who denied the existence of the occasional person with four fingers because humans have five was ignorant. What would you say to someone who so held?

And mutations may be a thing but so too are developmental problems without mutations - see thalidomide for a notorious example.

Some good references in this paper, btw: https://www.ncbi.nlm.nih.gov/pmc/articles/PMC7139786/

[Davy C]

If someone has XY chromosomes but has full AIS, are they biologically male or biologically female? They’ll look like females and they’ll generally identify as female.

In this case it appears Idaho law would allow them to be either. That seems to be the main reason why they can do student's choice of the DNA test OR the testosterone test OR looking at the anatomy; Idaho isn't all that interested in policing the truly ambiguous cases like that.

[Toranth]

SRG, you're arguing in circles. You're claiming that a definition is wrong because it is a definition. Your mutants, like XXYs, do not render the definition wrong; they are an outside case. Your people with Feelz (tm) do not render the definition wrong; they are just wrong and maybe mentally ill.

A person that denied that four fingered people existed would be wrong - as would a person that claims that fingers are a spectrum, or that someone can choose how many fingers they 'should have been' born with. People with mutations are an outside case due to the mutation. Pushing non-genetic deformities as a counterexample steps deep into Lysenkoism: about as anti-science as you can get. Surgery to modify the outward appearance does not modify the original being. A long-tailed dog with the tail chopped off is still genetically a long-tailed dog; a man with their genitals chopped off is still a man.

[LawTalkingGuy]

Uh no. Just that you can get a male profile from a Y-STR test like forensic labs do every day? I really don’t understand what your issue is. It seems like you just wanted to say I didn’t know what I was talking about but keep reaching to find reasons that’s true for this subject matter.

[Davy C]

Wouldn't the "reproductive anatomy" part be satisfied by a cursory look? "Hey, they don't have testicles, nor a scar where they would otherwise be." Why the pelvic exam?

[LawTalkingGuy]

Presumably because some intersex people have undescended testicles. Also the “cursory” look is already pretty invasive as the court notes.

[Davy C]

Physicals, in which the student must get naked because that general area is examined, are often required for sports in the first place. It would be very interesting if that was also unconstitutional.

[LawTalkingGuy]

Uh that’s the students choice to submit to a single physical to play sports to ensure they are healthy. That’s much different than some rando forcing them to go to a physical so a doctor can look at their genitals. It’s extremely invasive and you would be absolutely livid if it happened to you or or child.

[Davy C]

So a single physical is OK but a second one is "extremely invasive"? Many places require a physical *every* year to participate in high school sports.

Before the Act’s passage, the existing NCAA and Idaho state rules governed transgender women’s participation as
measured by circulating testosterone levels

I assume that measuring circulating testosterone pretty much has to be done through a blood test; *that's* not invasive but this is? I know I never had to get blood work done for my high school physicals. Looking at the shape of the X or Y chromosomes in that blood doesn't seem a whole lot more invasive than looking at the testosterone levels in that blood. I mean, yeah, you *could* get a whole heck of a lot of information with sufficient analysis of that DNA but you could also misuse the blood for the testosterone check the exact same way.

[LawTalkingGuy]

A physical I sign up for to make sure I’m healthy to play sports: good

A physical that is essentially a genital inspection that I am forced to go to because some rando doesn’t think I present as the appropriate gender: bad and invasive and gross freak shit.

How on earth do you not understand this?

[Krayt]

We're concerned with psychological damage for little girls for exams, but not for seening a nude person with a shlong in the locker room.

[LawTalkingGuy]

Huh? This is more freak shit, isn’t it?

[Nige]

Apparently you're subjecting them to invasive tests that are definitely traumatising to protect other girls from this, which has a low likelhood of happening, and unless actual sexual exposure is intended, which is already illegal, not likely to be very traumatising at all, and most young girls in sports who have been abused have not experienced it at the hands of any trans person?

[Ben of Houston]

What I'm doing is denying the assertion that a trivial inspection as part of routine physicals that are already being done is invasive. Much less if it's simply looking at a single character on records, which it really should be.

This is reminiscent of the death penalty cases, which jump through hoops to declare that no one can be executed.

I can accept an argument that it doesn't matter, even if I disagree. However, I cannot accept the absurd pretense that this is an invasion of privacy. It's pure sophistry

[Nige]

Republicans, committed to the principle that girls shouldn't see penises.

https://twitter.com/TheTNHoller/status/1692647031876001889

[Kazinski]

Perhaps you are right, the best way to handle it is criminal penalties for falsely asserting a different biological sex for oneself or ones minor child.

No more than a year in jail would be appropriate.

[LawTalkingGuy]

And how would they know that it is false? By doing the same tests. So you’d do the invasive tests then jail their parents. Or the person. This is genuine freak shit. How can you not see that?

[Kazinski]

No, they wouldn't have to do the tests to know. If someone files a complaint that satisfies probable cause, birth certificates are public records and would record biological sex at birth.

And like most criminal statutes, the primary purpose isn't to imprison disfavored individuals, the primary purpose is to discourage breaking the law.

[LawTalkingGuy]

“ the primary purpose isn’t to imprison disfavored individuals,”

You literally want to put people in jail for presenting to the world in a way that you disapprove of. That’s literally jailing disfavored individuals.

Like I said this is genuine Freak shit from a baby brain incapable of accepting the fact that some people will be different than they’d like and wants to use state violence to stop it.

Also your idea obviously violates the First Amendment. Literal criminalization of self-expression.

[Nige]

None of those tests determine whether a person is trans.

[Kazinski]

What does trans or not trans matter?

There is no law against being trans.

The law says to participate in girls sports you have to biologically be a female at birth and there is no counseling, hormone therapy, surgery, or self realization that changes that.

And if they want to compete in sports their is always an "open" division. I got a niece that went all the way through little league playing hardball as a 2nd baseman as the only girl on the team, its not for everyone but certainly an option. And my niece is barely 5', so don't claim girls sports are the only option for biological males that "don't fit in".

[Nige]

Yes, we know you want to criminalise being trans. But if you just came out and did that, how would you succesfully humiliate and traumatise young girls in the name of 'protecting' them from people they've never needed protecting from?

[Ben_]

Why do the people of Idaho have a duty to someone’s comfort, but a trans individual watching the girls undress in the school locker room doesn’t?

[Nige]

Reviving an old gay panic argument there.

[Mr. Bumble]

Are you saying trannies aren't actually women but gay men?

[Nige]

No. I *am* saying you hide your evil behind affected stupidity, though, and it's calculatedly ineffectual because you want to gloat.

[Currentsitguy]

Long gone are the days a doctor grabbed my nads and told me to cough to see if I could run track.

[Davy C]

So now I'm wondering whether the state didn't put up its own experts for some of this, or whether those experts were incompetent, or whether the district court discounted their testimony. There's no way you need a referral to an endocrinologist to check for a Y chromosome, or that the only way to do that is to simultaneously check for a host of other conditions.

[Squirrelloid]

Not going to disagree its some freaky shit, but...

You don't need to do a chromosomal microarray to assess gender. You just need to do a Karyotype, which only requires a blood sample and literally any medical testing lab. It's basic bloodwork. (Of course, CMAs are also becoming pretty standard, and I doubt that needs a specialist referral, either).

Now, it can reveal a few genetic abnormalities as well, but I'm unsure any of them wouldn't already be obvious by school age.
Down's Syndrome tends to be obvious by that point, for example.

Of course, any couple who had genetic testing done during pregnancy should have either a CMA or a Karyotype result already. Since this doesn't change, no new testing required for such students. (Just a doctor's letter explaining they have such a test on file, and the student's biological sex is X).

Not that I trust a court to get the science right, they aren't scientists. But I'm not sure where they got the idea a specialist referral was needed, or that this is some weird and unusual genetic test that would be required.

[Mr. Bumble]

John Ross. Winner of commenter award for best and most regular use of "READ MORE".

[Kazinski]

He's disqualified for going years posting his whole column until relatively recently.

Not that I care other than the fact that awards should be earned and not just participation trophies.

[Longtobefree]

"Uh oh! He also lied about that on his paperwork when he became a citizen in 2002"

Yeah? So what? Lying on a federal form just gets you a plea bargain, no jail time, and immunity from all future investigations.

[Kazinski]

I'm on Hunters side on that charge, not being a user of intoxicants that don't cause an ongoing mental disability is an impermissible condition for exercising the right to keep and bear arms, unless someone is actually intoxicated while in immediate possession of their weapon.

There is of course the lying non the form part, but if the restriction is impermissible then I'd say the question wasn't material.

[BillyG]

but if the restriction is impermissible then I’d say the question wasn’t material.

Then that needs to apply to everyone. Including retroactively for people previously prosecuted for it. I don't like the restriction. I like inconsistency even less.

[Jerry B.]

Still the law, though.

[Kazinski]

Its on pretty shaky ground in the 5th circuit.

[Michael P]

Someone might challenge the substantive providing about being a drug addict, but I imagine any relaxation of it would be limited to drugs that are decriminalized at the state level (mainly marijuana); crackheads exhibit a tendency to break the law and lack of self-control that suggest gun ownership would be hazardous. But they're not going to succeed in a challenge about penalties for lying to the government about that kind of thing, so Biden should be liable for that even if some court decides druggies are good candidates for gun ownership.

[Kazinski]

I'd have to see some evidence that being a habitual crack addict affects your judgement more than being a habitual alcoholic.

Sure there is plenty of examples of horrible judgement of both classes, but I'm hard pressed to decide which one is more dangerous armed.

[wnoise]

Homeowner's false arrest claim should go to a jury. (But an excessive force claim and claims against the city were properly dismissed.)

In a just world, any force used to effect a false arrest would be automatically considered excessive. Any is beyond what is necessary (zero) to accomplish a legitimate purpose.

[Currentsitguy]

It the very least any force used to resist a false arrest should be automatically discounted.

[Noscitur a sociis]

I can see you’ve definitely thought through all the potential implications of such an approach.

[Currentsitguy]

I see you don't know several courts have upheld that very fact.

[Noscitur a sociis]

I certainly know that American jurisdictions overwhelmingly if not universally reject the position that there is a privilege to resist an arrest made with proportionate force.

[John F. Carr]

Not universally. According to some lawyer's web page, at least Virginia and South Carolina allow resisting an illegal arrest. My state does not. In one case police were beating a restrained man and his flailing legs touched them. Assault on a police officer. The appeals court did not consider the theoretically available defense of resisting excessive force, but conceded that maybe he was trying to remain completely still and the leg motion was involuntary. New trial.

[Davy C]

Which are what? More people resist arrest, incorrectly thinking that the arrest is false and they won't be prosecuted for it?

I'm willing to screw those people to protect those who get prosecuted for resisting an arrest which actually is false.

Bear in mind that a false arrest is not merely "I'm innocent", it's "this person has no valid reason to arrest me and they know this."

[ducksalad]

“Which are what?”

Maybe more dead and injured people – both officers and would-have-been arrestees.

“I’m willing to screw those people to protect those who get prosecuted for resisting an arrest which actually is false. Bear in mind that a false arrest is not merely “I’m innocent”, it’s “this person has no valid reason to arrest me and they know this.”

That trade off is a value judgment, so I can't say you're wrong. But I think in real life the number of people who irrationally think the officer is wrong, and knows it, is much larger than the number of false arrests.

But the more important issue is that while resisting might be righteous, from a consequentalist POV it is unlikely to lead to the desired result, prevention of the arrest. The most likely result is escalation and the odds are greatly in favor of the officer. Under your system, the arrestee can beat the rap, but he can't beat the ride, the tasing, the concussion, the broken bones, and the gunshot wounds.

I’d also add one other points: The entire purpose (well, the only legitimate purpose) of having a court system is to create a peaceful alternative to people taking matters into their own hands through force.

[Noscitur a sociis]

I’m willing to screw those people to protect those who get prosecuted for resisting an arrest which actually is false.

And what about the police officers and bystanders who get injured or killed in the trial by combat? How far do you want them to get screwed over?

All else being equal, we’re better off if arrests and made with the minimum amount of force possible, and any issues about their legality are litigated afterwards. A rule that incentivizes people ve differently is a bad rule.

Bear in mind that a false arrest is not merely “I’m innocent”, it’s “this person has no valid reason to arrest me and they know this.”

Yes, the fact that it’s virtually never possible for an arrestee to know for sure that an arrest is unlawful at the time it’s being made is another good reason not to encourage people to start fighting the police when they think there’s something wrong.

[Davy C]

The police officers who are currently falsely arresting someone? I'm willing to screw them too. The ones who get called in for backup and don't know it's a false arrest? You're blaming the wrong person for the situation.

You're also assuming that the people being arrested *don't* know about the risk of doing so but *do* know about a particular law or court ruling. I don't think there was a huge drop in resisted arrests when the common law was changed in my state to not allow resist of a false arrest. I don't think there would be a spike if it was allowed. You can't be convicted of violating an unconstitutional law; does this mean people are emboldened to violate all manner of law hoping the courts will rule in their favor? In practice this happens but it's very rare.

[Noscitur a sociis]

The police officers who are currently falsely arresting someone? I’m willing to screw them too. The ones who get called in for backup and don’t know it’s a false arrest? You’re blaming the wrong person for the situation.

1. What about the police officers legally arresting someone who falsely believes the arrest is illegal?

2. It’s not a matter of blame: it’s better if an arrest ends with everyone, at fault or not, safe, uninjured, and ready to come back and argue about it in court. Not least because theres no particular reason to think that there will be any particular correlation between the likelihood of gettin hurt or killed and the likelihood of being in the right.

You’re also assuming that the people being arrested *don’t* know about the risk of doing so but *do* know about a particular law or court ruling. I don’t think there was a huge drop in resisted arrests when the common law was changed in my state to not allow resist of a false arrest. I don’t think there would be a spike if it was allowed.

If you don’t think people respond to incentives, then I agree you’re not likely to find these arguments persuasive. Basic economic theory and my practical experience in a career of criminal law suggests they do.

You can’t be convicted of violating an unconstitutional law; does this mean people are emboldened to violate all manner of law hoping the courts will rule in their favor? In practice this happens but it’s very rare.

What are you talking about? People deliberately choose to violate laws because they think (often erroneously) that they’re unenforceable all the time.

[Davy C]

If you don’t think people respond to incentives, then I agree you’re not likely to find these arguments persuasive.

You think people respond to this, huh? Do you think you could look at the Wisconsin historical data for resisting arrest and use it to pinpoint when the Wisconsin Supreme Court changed the law to make this illegal? I haven't looked, but I doubt it would even show up as a blip. There are very few people who would respond to this incentive. This is mostly, IMO, about the after-the-fact decision to prosecute someone who was resisting illegal behavior.

People deliberately choose to violate laws because they think (often erroneously) that they’re unenforceable all the time.

Such cases are high-profile but not really all that common, I think.

it’s better if an arrest ends with everyone, at fault or not, safe, uninjured, and ready to come back and argue about it in court.

It's even better if they also come out of it with their rights unviolated.

How safe is a person who a cop is attempting to falsely arrest? Is the cop going to throw them in the back of the van, "forget" to buckle them in, and then decide to participate in the nearest high-speed chase?

I just don't like the mentality of "you can never resist the state for any reason, even if it's a rogue agent of the state doing something the state acknowledges is illegal and even *he* knows is illegal." I don't think that encourages a healthy citizen-government relationship.

[The Margrave of Azilia]

The courts should kill off civil asset forfeiture except for abandoned property (and the latter should be defined very strictly).

And the “that was just our opinion, man” defense should have been weighed by a jury.

[Ed Grinberg]

Cook County, Ill. officials sue banks under the Fair Housing Act. Allegation: The banks made credit too readily available to some (minority) borrowers, leading to the borrowers' defaulting, leading to foreclosures on their homes, leading (and this is where the County's beef comes in) to vacant properties, lost tax revenue, and transfer fees.

Hmmm... Wasn't it the government that made banks relax their lending standards (to increase minority home ownership)?! I'm reminded of that old joke about a guy who kills his parents and then, after being convicted, asks the court for mercy because he's an orphan.

[Jerry B.]

But that was then, and this is now.

[Currentsitguy]

You shoot my dog I'm going to kill you. Maybe not tomorrow, maybe not for years or even decades, but I will find you.

[ReaderY]

As I’ve said before, I think the 5th Circuit abortifacient case is a total loser all around. No standing. No evidence. A legal argument that is a complete loser given Supreme Court precedent on judicial deference to FDA drug approval decisions.

The 5th Circuit is deciding this case on ideology, not law.

If opponents of abortion want to challenge the legality of mifepristone, they need plaintiffs who have clear standng, a better legal argument than claiming that FDA’s approval decisions violated the Administrative Procedure Act, and much better evidence than the junk and bogus science these plaintiffs are using to support their claim that mifepristone is dangerous to pregnant women.

[David Nieporent]

I am not an admin law expert, and I haven't dived deep enough into the case to evaluate the merits of those arguments (but lawyers who I trust say that the case is a loser substantively). But I have read the standing arguments, and boy are those garbage. Ho's concurring argument was the worst, but the majority opinion was also terrible. I am loath to argue bad faith, but it's hard to see how any competent judge could have made those rulings.

[Davy C]

Who *could* have standing to challenge a drug approval? You could find someone who took the drug and suffered ill effects, but the relief sought would not cure their injury, and if they know it has ill effects there's no possibility of repetition in their case.

[Magister]

From Blackmun's Roe v Wade opinion:

But when, as here, pregnancy is a significant fact in the litigation, the normal 266-day human gestation period is so short that the pregnancy will come to term before the usual appellate process is complete. If that termination makes a case moot, pregnancy litigation seldom will survive much beyond the trial stage, and appellate review will be effectively denied. Our law should not be that rigid. Pregnancy often comes more than once to the same woman, and in the general population, if man is to survive, it will always be with us. Pregnancy provides a classic justification for a conclusion of nonmootness. It truly could be "capable of repetition, yet evading review."

"Capable of repetition, yet evading review" would seem a plausible basis for standing, even if it might not be repeated for any given individual. And paying injured patients money to compensate for their injury seems to be pretty common in malpractice cases, even if it won't cure the injury.

[ReaderY]

Why would anybody in his right mind advise challenging mifepristone’s approval as a legal strategy? Or want to advance a cockeyed and baseless theory that the FDA was somehow conspiring to poison pregnant women as a basis for challenged?

There are plenty of ways the current legality of mifepristone could be challenged without bogus legal theories and baseless evidence.

An obvious example is the series of lawsuits that GenBioPro, a mifepristone manufacturer, has filed seeking to overturn restrictions on its drug, first against West Virginia and most recently against the FDA.

There can be no question regarding standing here. GenBioPro has an obvious interest in avoiding restrictions that limit its sales. Governments have an obvious interest in enforcing their laws.

And in these lawsuits, especially the West Virginia one, not only is their an excellent legal basis for defending against GenBioPro’s lawsuit, there is also a basis for a more aggressive litigator who wants to to seek a declaratory judgment that what GenBioPro is doing is illegal and an injunction stopping it.

My suggested legal strategy would focus on the fact that while the FDA has the power to regulate the interstate manufacture, distribution, marketing, and sale of drugs under the FD&C Act, it has no power to do two key things:

1. Regulate the USE of drugs including decisions to prescribe them. This is distinct from the manufacture, distribution, sale, and marketing of drugs in interstate commerce. The FD&C Act disclaims such regulation. Doctors are free to make their own prescribing decisions including prescribing “off label” (unapproved) uses for drugs. The fact that doctor prescribing decisions are outside the FD&C Act means that state decisions to regulate or restrict doctor prescribing decisions (as distinct from manufacture, distribution, marketing and sales by drug companies and distributors) are also outside the FD&C Act. FDA approval addresses how drugs can be marketed, distributed, and sold, not how they can be prescribed or used.

2. Decide the legality of drugs with respect to any federal law but the FD&C Act. FDA approval for purposes of the FD&C Act does not in any way imply legality with respect to any other federal law. In particular, the FDA has no authority over the Comstock Act. The Comstock Act’s express restrictions on interstate commerce in abortifacients were in abeyance at the time the FDA made its approval decisions, But Dobbs resurrected them.

Accordingly, West Virginia in particular has defenses to the restrictions on prescribing mifepristone that it imposes as part of its abortion laws, and it has standing to raise those defenses in the GenBioPro case.

Note: The district judge in a preliminary proceeding had ruled that the Comstock Act is likely not good law and if it is, it does not apply to anything the FDA approves. It also seemed to buy GenBioPro’s arguments that the FDA approval implies a federal policy favoring the free flow of abortifacients and West Virgina’s restrictions on prescribing and use interfere with this federal policy. I think the court’s decisions are wrong on all these points, and should be reversed on appeal.

[ReaderY]

Standing issues aside, the AHM strategy is to challenge the original FDA approval based on claims the FDA engaged in misconduct at the time. I think that’s a total loser argument. I think a better and potentially viable strategy is to accept the approvals as valid at the time they were made, but then to argue that Dobbs means that the state of the law has changed subsequently.

[David Nieporent]

Perhaps a competitor of the drug's manufacturer?