The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Short Circuit: A Roundup of Recent Federal Court Decisions
Detroit's forfeiture machine, major nuclear questions, and copyrightable materials.
Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
You want to hear something neat? Next month, IJ is going to argue before the Michigan Supreme Court—but not at the Michigan Supreme Court. Instead, oral argument will be held at a high school in Flint because sometimes—in cases of deep importance and keen public interest—the Michigan supremes take their show on the road. And indeed the question of whether officials who repeatedly flew a drone over private property in search of code violations should have first obtained a warrant is of great moment. Click here to learn more.
And speaking of neat, Georgia Public Radio has a story about IJ's latest eminent domain case, one which asks the question: is a taking by a private railroad, primarily to benefit a different private company, a public use?
- Federal law requires anyone who publishes books with "copyrightable" material to provide free copies of those books to the gov't. Is this a taking? D.C. Circuit: When the gov't takes your stuff, it's a taking. (This is an IJ case.)
- FDA refuses to allow company to market its vaping products, both flavored and unflavored. D.C. Circuit: And it was fine to prohibit the flavored products, given their appeal to the youths, but the unflavored products are a different story. The FDA failed to consider the potential benefits of the products or weigh those against public-health risks.
- If you ever find yourself, as a lawyer in a negotiation, shouting, "I don't give a f--k about those kids," maybe take a step back and rethink your choices. In related news, the Second Circuit has affirmed attorney Michael Avenatti's convictions for trying to shake down Nike over alleged secret payments to youth basketball players.
- When it comes to offensive words, your summarist's six-year-old is a master of the "use/mention distinction," and has figured out that asking questions about words and quoting their use by others will not provoke the same reaction from his parents as will actually employing the verboten language. And according to the Third Circuit, the Pennsylvania Rules of Professional Conduct are similarly discriminating. Thus, a Pennsylvania attorney who regularly gives continuing legal education presentations about First Amendment protection for offensive speech could not reasonably fear his mention of offensive words will trigger discipline.
- Philadelphia police spot driver whose house they have a warrant to search and decide to stop him. While wearing plain clothes ("to maintain an advantage") and driving unmarked cars, they box in the driver on a one-way road. When the unarmed driver attempts to free his car, one of the officers shoots him to death. Third Circuit: To trial this must go. Denial of qualified immunity affirmed. (Video.)
- New Jersey police arrest a robbery suspect in his hotel room, find car keys, and get permission from the rental car company to search what he says is his rental car. Turns out his girlfriend rented it. Ah hah! They find contraband. Suppress the evidence? District court: No. Third Circuit (over a dissent): Reversed. He had a reasonable expectation of privacy as girlfriend gave him permission to use the car.
- After finding his usual "chill out" room is unavailable, agitated 17-year-old special-needs student tries to leave Katy, Tex. school and wrestles with staff trying to prevent him. A school resource officer tells staff to let him go and then tases him after he takes a few steps outside, continuing even after he is lying on the ground and not struggling. The teen urinates, defecates, and vomits. Excessive force? Fifth Circuit (2021): The thing is it's not clearly established that school officials can ever be held liable for using excessive force, and we decline to clear that up for the future. Fifth Circuit (2023): And his other statutory and constitutional claims fail.
- Fifth Circuit (unpublished): The district court should not have granted qualified immunity to a Louisiana probation officer moonlighting as a security guard who dragged an allegedly unoffending man out of a Mardi Gras event, causing serious injuries to his neck and shoulder. On remand, the officer needs to show that probation officers have the authority (under state law) to put people in wristlocks and drag them out of venues—if not, qualified immunity is not available to him.
- Is storing nuclear waste a "major question"? In the Fifth Circuit it's apparently major enough to conclude Congress has not allowed for licenses for temporary storage facilities.
- Woman who has held a green card for nearly 30 years is caught driving nearly 100 lbs of marijuana across the border. Her criminal-defense attorney tells her it's "very likely" that she'll be deported if she pleads guilty to drug charges. She pleads guilty anyway—after which she discovers that her deportation is mandatory. Ineffective assistance of counsel? Fifth Circuit: Her attorney needed to make clear that serious immigration consequences would result; a "very likely" deportation was sufficient.
- Two brothers are convicted of Metairie, La. murder—one (Jarrell) is sentenced to death, and one (Zannie) gets life in prison. Their convictions are primarily based on their uncle's testimony, who said that he remained in a car while his two nephews went into a house, Jarrell fired a rifle, and then they both returned to the car. Meanwhile, an eyewitness testified that the shooter looked like the uncle, not Jarrell. Seeking habeas, Jarrell points to three items of evidence: (1) blood on his uncle's shoes, (2) a forensic report excluding Jarrell's shoes as the source of the bloody shoeprint inside the house, and (3) an inconsistent prior statement of the uncle's. His attorney didn't present any evidence at trial (including this good stuff), and he waived opening statement. Fifth Circuit: Habeas affirmed. "We find that trial counsel's 'strategy,' if there even was one … was 'not sound.'" (Ed. note: It is quite unusual for the Fifth Circuit to deem habeas appropriate.)
- After a street preacher refuses to remain in a designated protest zone, Brandon, Miss. officials cite him. The preacher pleads no contest and pays his fine. Then, citing his intentions to violate the ordinance in the future, he sues the town to invalidate the ordinance for violating his First Amendment rights. Fifth Circuit (unpublished): The Heck you will. Since you pled guilty to violating the ordinance in the past, you can never challenge it in the future. Ever.
- Allegation: Detroit officials have a nasty habit of seizing cars (over a thousand a year) with little regard to actual wrongdoing and then holding them for months or years without giving owners a hearing. Plaintiffs: Due process requires a hearing in 30 days. Sixth Circuit: Due process requires hearings in two weeks. Concurrence: Due process requires hearings in two days. (This is an IJ case.)
- Allegation: After his daughter is benched, annoying Baxter, Tenn. dad annoyingly texts her softball coach to complain. He's told not to come to games for a week. (He does anyway but leaves on pain of arrest.) Unconstitutional retaliation over his protected speech? Sixth Circuit: Could be! To discovery this must go. Grant of QI reversed.
- Summoned to Campbell County, Ky. home over report of domestic dispute, police encounter man slurring his speech and a woman that he refuses to let speak with them. He closes the front door on them; they knock it down, point gun at him, and ultimately leave without arrests or citations. Sixth Circuit: No qualified immunity. Partial dissent: Agreed that a jury should decide if the gun pointing was excessive force, but forcing their way in was fine.
- Your editors would very much like to meticulously summarize an appellate decision about how the National Police Association resoundingly lost its defamation lawsuit against The Indianapolis Star and the AP, but the National Police Association seems to be quite free with its defamation lawsuits. So, chilled as we are, we shall merely invite you to read the Seventh Circuit's opinion (and to read this recent Indy Star article about IJ's latest case!)
- During the COVID-19 pandemic, San Francisco enacted the "Healthy Airport Ordinance," requiring airlines that use San Francisco International Airport to provide employees with certain health insurance benefits. A coalition of airlines sues, alleging that the requirements are preempted by federal law, but the district court holds that the city was merely acting as a "market participant," and therefore not subject to the preemption claim. Ninth Circuit: The insurance requirement is backed up by civil penalties that have the force of law. The city was acting as a regulator, not a market participant. Dissent: Lots of private contracts impose "coercive" penalties for breach.
- Los Angeles County enacts eviction moratorium during the pandemic. Landlord: My tenant took advantage and stopped paying rent; the county violated the Contracts Clause. District court: I think maybe you could have evicted the tenant anyway; no standing. Ninth Circuit: Stop confusing standing and the merits. Reversed.
- Los Angeles officer shoots, kills trespasser at a gym after a minutes-long scuffle. Ninth Circuit (2022): Lots of disputed facts, no video, but no warnings can be heard on the audio and you have to give a warning (if practicable) before you use deadly force. No QI. Ninth Circuit (2023, on panel rehearing): QI. You don't have to give a warning when your partner is pinned down and being pummeled in the head. Dissent: Physical evidence and statements by the gym's security guards strongly suggest the officers are lying about that.
- And in en banc news, the Fifth Circuit will reconsider its opinion allowing Jackson Municipal Airport Authority commissioners to continue their suit against Mississippi state legislators for disbanding the authority (appointed by city officials) and replacing it with a regional one (appointed by state officials) for allegedly racist reasons.
- And in more en banc news, the Fifth Circuit will reconsider its decision that hitching a ride across the border in a car with 283 pounds of marijuana is not necessarily possessing marijuana.
- And in additional en banc news, the Eighth Circuit will not reconsider its decision that all felons can be categorically barred from possessing firearms under the Second Amendment. In a "dissental," Judge Stras provides what he previously said was "more to come." (As discussed in this edition of the podcast.)
Victory! This week, a state trial court struck down Orange City, Iowa's mandatory rental-inspection program, whereby code enforcement officers could demand entry into tenant's homes without consent and without a scintilla of suspicion or particularized probable cause suggesting something is actually amiss. But the Iowa Constitution forbids treating renters like second-class citizens, and the court ruled that henceforth officials must show "some plausible basis for believing that a violation is likely to be found" and moreover that tenants must be notified of the city's application for a warrant and given a chance to advocate for restrictions on timing and scope of the inspection. Click here to learn more.
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Re: offensive words - I am reminded of the possibly apocryphal story of an English footballer (soccer player), on the wrong end of a decision, saying to the ref, "if I called you a cunt, what would you do?" "I'd send you off, son." "But what if I just thought you were a cunt?" "Couldn't do anything about it." "Well I think you're a cunt".
Note: in Britain, "cunt" does not have the hostile force it does here. One can affectionately call a friend a cunt - depending on the friend. But it is still otherwise offensive.
It’s more versatile like that in Scotland, not so much in England.
Woman who has held a green card for nearly 30 years is caught driving nearly 100 lbs of marijuana across the border. Her criminal-defense attorney tells her it's "very likely" that she'll be deported if she pleads guilty to drug charges. She pleads guilty anyway—after which she discovers that her deportation is mandatory. Ineffective assistance of counsel? Fifth Circuit: Her attorney needed to make clear that serious immigration consequences would result; a "very likely" deportation was sufficient.
Of course this isn't ineffective assistance of counsel. Deportation isn't a certainty. The President, after all, could always pardon her and then she wouldn't be deportable. So it's not a certainty that she'll be deported, hence very likely is correct. The court doesn't mention pardons, but does mention that just because someone is deportable doesn't mean they're actually deported. On occasion, I've been embarrassed by arguments I've had to make on behalf of a client. I need less shame, I'm astonished anybody argued this was ineffective assistance with a straight face.
There should be a continuing education requirement for all judges and justices.
Also: Fifth Circuit.
That having been said: there's no good excuse for having been a green card holder for 30 years and not becoming a citizen. It's just foolish. If she had done the minimal work for citizenship, she wouldn't have been in that predicament; she could murder people on live TV and wouldn't be deportable.
Aren't there certain situations where your citizenship may be revoked?
I found this:
https://www.uscis.gov/policy-manual/volume-12-part-l-chapter-2
So she'd be OK if it were more than five years after being legally naturalized and she hadn't concealed or willfully misrepresented material evidence.
Only if you obtained your citizenship via fraud. (For instance, the former Nazi camp guards who, er, failed to mention that on their applications — or, more recently, people who omitted their support for international terrorist groups from their applications.) You cannot have your citizenship revoked for post-naturalization crimes.
Louisiana security guard case: I thought qualified immunity did not care about legality of action under state law. I believe there was a case where the offense was technically not arrestable under state law, but constitutional law was happy with an arrest for an offense that could constitutionally could have been made arrestable.
(At common law arrest without a warrant was not allowed for a misdemeanor not amounting to a breach of the peace. Many such minor crimes have been made arrestable by statute.)
It's not a question of whether it was legal, it's whether it's authorized as part of his duties. Can't use QI for acts that aren't official duties.
I just read the Metairie murder case. It was blindingly obvious that the uncle did it, and it's a bizarre aspect of the judicial process that it took so long for the system to accept it.
"she discovers that her deportation is mandatory"
Deportation is mandatory for lots of stuff, but doesn't happen 100% of the time.
In the DC Circuit copyright case, what’s wrong with an in-kind fee for getting copyright protection? What’s wrong with in-kind fees for services? If government can charge a fee for a corporate charter, why can’t it ask for a share of stock? If it can charge a fee for a copyright, why not a copy of the publication?
I think that changes the context a bit. The government is charging you for publishing even if you don't register the copyright.
Maybe nothing. But if you had bothered to read the opinion, your question has nothing to do with the facts here. Being forced to give the government free copies of your private property was not a condition of getting copyright protection under the applicable statutes.
Michiganders’ Rights: Not everyone has legal permission to shoot 12g 00 buckshot up into the air and accidentally hit overflying drones, so a good case to follow.
"...sometimes—in cases of deep importance and keen public interest—the Michigan supremes take their show on the road."
I feel like this competition really needs an undercard like a warmup with Flint h2o litigation or student speech rights. In any event I'm predicting a split decision on the judges scorecards.
I will note that some school resource officers need to go tase some Fifth Circuit judges.
That would be electrifying to watch.
Shocking.
QI is judge-made law which is not even statutory. The Seventh Amendment, on the other hand, is a part of the Constitution. If there's a factual dispute it needs to go to a jury if a party so demands. Dismissal on QI grounds, like any dismissal, should only happen if the disputed facts can be resolved in favor of the plaintiff and they'd *still* lose.
You're correct. The above is the kind of ruling I'd expect out of the 5th circuit. Surprised to see it come out of the 9th; without checking, they must have drawn a bad panel.
Which is exactly how it works: indeed, the opinion explains as much on pp. 16-18.
They *say* they're doing that, but I disagree that they actually *are*. I don't think it would be impermissible for a jury to find that certain discrepancies mean the defendants are lying, and that they are lying because they are guilty. Especially in a context where the person was killed so there's no living witness for the other side.
Regarding National Police Association -- if they are based in that state, they will have to be filing with both the state and file an IRS Form 990 which I believe is public. https://www.irs.gov/charities-non-profits/public-disclosure-and-availability-of-exempt-organization-returns-and-applications-public-disclosure-overview
Printing that would not be libel, and likely quite interesting, even if you had to copy the data onto a blank 990.
It's critical to the case. The argument is that being told something is very likely isn't enough, the advice had to be that it was a certainty otherwise it's ineffective assistance. If there's any scenario where deportation won't happen, then it's not a certainty; it's very likely. Therefore the lawyer's advice was correct. The court didn't even need to reach the issue of whether imperfect advice was ineffective assistance, although they did anyway.
Isn't being "really pedantic" exactly what lawyers get paid a lot of money to do? I have been specifically told by a traffic court judge that because I am not an expert in statute construction that he would not accept my argument that the infraction of making a left turn without coming to a complete stop was not the same thing as proceeding straight through a red light, when the ordinance regarding an illegal left turn stated exactly that. His determination was that I was guilty of both. Pedantic indeed...
Maybe he was thinking of Obama's auntie.
The fact remains that he got the law wrong. An error of FACT, not judgment.
Not very many, but so long as there's a non-zero chance, then "very likely" was still correct advice. There's always a non-zero chance of a presidential pardon for a federal crime. The possibility of a pardon, by itself, is a saving clause but the court also mentions other issues (such as not every deportable person actually being deported).
Visiting an engineering forum: "Hey, math is unpopular, mind not commenting about it?"
Visiting an arts forum: "Abstract art is really unpopular; you should only discuss Marvel movies. And don't use any technical terms, because booo-ring."
In both cases, you're too dumb and legally unsophisticated to...
To...
To...understand the law you were supposed to obey?
Good job, lawyers and judges!