Short Circuit: A Roundup of Recent Federal Court Decisions

3,000 years of overdetention, chief lickspittle, and the wrong side of the road.

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

More and more governments are demanding that "professionals," rather than mere volunteers, help people, whether feeding those in need or trimming a neighbor's trees. But that crowds out civil society and frays the bonds between us. Is it therefore time to recognize a "right to volunteer"? Director of the Center for Judicial Engagement Anthony Sanders volunteers his thoughts in this new piece at Discourse Magazine.

• PIM Brands is a candy company that manufactures a wedge-shaped, watermelon-flavored sour candy with a green, white, and red color scheme designed to evoke the image of a slice of watermelon. When Haribo of America—better known for its gummy bears—started manufacturing a similarly shaped and colored watermelon gummy, PIM sued, alleging trademark and trade-dress infringement. Third Circuit: But trademark law doesn't protect useful designs, and both candies' shapes and colors usefully signal their watermelon flavor.
• Pro-tip to the defense bar, courtesy of the Third Circuit: If a witness to a gun fight suggests that your client shot in self-defense, and then the judge pressures the witness to testify that your client shot first, you really, really need to object.
• Bridgeport, W.V. man exits his house and sees a guy suspiciously walking around, looking over his shoulder, and holding something so heavy in the front pocket of his hoodie that it "was falling down below his crotch." Man calls a law enforcement buddy. Later cops find the guy, still walking in the area, and search him on suspicion of theft. Instead they find a gun and drugs. Fourth Circuit: There wasn't enough evidence for a search as "unlike rational basis review, reality matters for reasonable suspicion." Dissent: Actually, "reasonable suspicion is a little less qualified immunity and a little more rational basis than the majority lets on." [Ed.: You're comparing the majority to defeating QI? Really?]
• Fifth Circuit: A quarter of all Louisiana inmates are held past their release dates—"for a collective total of 3,000-plus years." And it's "[c]lear as day" that the gov't can't keep someone in prison without legal authority, so no qualified immunity for the prison supervisors who were deliberately indifferent to this plaintiff's wrongful 60-day overdetention. (IJ is currently litigating this issue against the state's director of prisons on behalf of a client who was overdetained for 525 days.)
• Allegation: DUI suspect spits in an Alamo, Tex. officer's face. But the suspect has connections! The mayor intervenes, seeks to have the charges dropped. Which a sergeant declines to do, provoking the ire of the police chief, who conjures up false charges and directs subordinates to file false affidavits to get the sergeant arrested. False arrest? District court: Qualified immunity. It's not clearly established that officials shouldn't do that. Fifth Circuit: Reversed.
• Three physicians who prescribed the ivermectin for off-label treatment of COVID-19 sue the FDA, alleging that the agency's public statements concerning the antiparasitic drug—including the exhortation "You are not a horse"—were beyond the agency's authority. Fifth Circuit: And they have a case. "Even tweet-sized doses of personalized medical advice are beyond FDA's statutory authority." (But the district court may decide on remand that the plaintiffs lack standing.)
• A Kentucky law (which IJ has challenged elsewhere) bans new medical services from opening unless they can prove they are "needed." And existing providers have a suspicious habit of arguing that new services that would compete with them are totally, definitely not needed. Ohio medical-transportation company: this scheme illegally burdens interstate commerce. Sixth Circuit: For trips inside Kentucky, no. For trips from Kentucky to Ohio, yes.
• Property owner fails to pay just over $1k in property taxes. Gratiot County, Mich. officials take it, sell it at auction for a cool $42K, and keep all the dough. Sound familiar? Yeah, this spring SCOTUS said that's a no-no. So owner wins in district court on his takings claim but not on his argument that he should get the fair market value—arguably almost $100K—not just the auction proceeds. Sixth Circuit: One way to calculate fair market value is to hold an auction.
• Woman is a spectator in back row of Tiffin, Ohio courtroom to watch a proceeding involving her boyfriend. Out of the blue, the judge orders her to take a drug test; when she refuses, the judge throws her in jail. The judge is later disbarred and removed because of this misconduct. Surely the woman can recover for such an obvious violation of her civil rights? Judges on the Sixth Circuit (unpublished): Of course not, we judges are above the law absolutely immune from civil suits for our their judicial misdeeds.
• Missouri man is stopped by police officer for walking on the wrong side of the road, gets into an argument with officer, and is arrested. Officer then scrambles to find a reason to justify the arrest, telling colleagues man "ran his mouth off," fabricating new allegations, and asking, "What can I charge him with?" Man sues, alleging arrest was retaliation for First Amendment-protected speech. Eighth Circuit (unpublished): You were walking on the wrong side of the road, so the officer had probable cause to arrest you and you can't sue, no matter the real reason for the arrest. Dissent: The Supreme Court says you don't need to prove a lack of probable cause if the law is never actually enforced, even using jaywalking as the canonical example. That is exactly this case.
• Missouri man crashes his car into a tree while fleeing police and dies at the scene. His estate sues, alleging that police performed a "PIT" maneuver that caused the crash and then failed to call for medical assistance. The police deny having bumped the fleeing car and argue that a bystander called 911 within 30 seconds of the crash, making their failure to render aid a moot point. Holding that there are disputed material facts, the district court denies qualified immunity. Eighth Circuit: Sounds right to us. Dissent: Police have a duty to aid injured people they take into custody, but "[i]t is not obvious that leaving someone in a crashed car is similar to incarceration or institutionalization."
• Environmental groups sue the United States Forest Service, alleging that the agency violated the Resource Conservation and Recovery Act by failing to regulate the use of lead ammunition by hunters in the Kaibab National Forest in Arizona. Ninth Circuit: But the RCRA creates liability only for those who "contribute[]" to the disposal of hazardous materials that endanger the environment. The Forest Service didn't put the lead there, and it had no duty to prohibit hunters from using lead ammunition.
• Two California gun owners claim it's essentially impossible to get an open-carry permit. They sue and ask for a preliminary injunction, which has four famous factors, the first of which is likelihood of success on the merits and another of which is the public interest. District court: I don't have to look at the merits because guns are bad and not in the public interest. Ninth Circuit: Um, what? In a constitutional case you always have to look at the merits because it affects the rest—such as it not being in the public interest to violate constitutional rights. Remanded to do it over.
• Seeking to distance itself from its association with "pukey frat guys" and emphasize its German heritage, the distributor of the herbal liqueur Jägermeister launches an ad campaign incorporating German words with easily understood English equivalents, such as "kühl," "darke," "perfekt," "meister," and "dekadent." Uh oh! "KÜHL" is a registered trademark of Alfwear, an outdoor clothing company that promptly sues for trademark infringement. Tenth Circuit: Discriminating sportsmen/binge-drinkers are unlikely to be confused. Case dismissed.
• The first Mrs. Henthorn was crushed by a Jeep in a remote area with her husband as the only witness. The second Mrs. Henthorn fell off a cliff on a hike with her husband as the only witness. (This was a year after a heavy wooden beam almost crushed her at their cabin—with her husband as the only witness.) Is Mr. Henthorn the unluckiest man out there? No, he's a murderer, according to a Colorado jury. Tenth Circuit (2017): Introducing the prior similar incidents was just fine. Tenth Circuit (2023): And no habeas.
• Allegation: Man can't get up after being punched and hitting his head on parked car outside Ponca City, Okla. bar. Though he's lost feeling in his extremities, EMTs decide he's just drunk and, per their usual practice, load him into an ambulance without stabilizing his neck, which is broken. His head flops forward. He dies. Tenth Circuit: Qualified immunity and no suing the city, either.

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Comments

[jimc5499]

I don't know about police training, but, every First Aid training that I've had states that when a victim is in a automobile accident and there is no danger of fire or any other danger, you don't move them. You wait for professionals to get there. If a bystander called 911 and help was on the way, did the Police really do anything wrong?

[Absaroka]

I think you should probably check for vital signs, arterial bleeding, etc. If someone isn't breathing or has a major arterial bleed waiting for the pros is a bad idea.

As far as the bystander calling 911, I wonder how that works. If you call 911 and say 'there are a bunch of cops here and someone that needs an ambulance', but the cops haven't called for an ambulance, does one get dispatched? Or does 911 assume 'if an ambulance was needed, the cops would ask for one'? The decision doesn't give the details.

[Jerry B.]

You can generally check vital signs and wounds without removing someone from a car. Also, see the case here where EMTs moved a man without stabilizing his neck and he died.

[Absaroka]

Oh, sure, check in place. And if treatment is required, treat in place if you can. But I think sometimes treatment might require moving.

Not an expert. Have been in an upside down smushed car with a semi-conscious victim. We moved that victim, as carefully as we could, per the advice of an RN ... gas tank had broken, gas everywhere.

[jimc5499]

That would be the danger that I spoke of.

[Dr. Ed 2]

I can't see that not being a violation of state malpractice laws.

And what does this do to the criminal charges against the perp who hit him? If he only died because of the incompetence of the ambulance crew, can he be prosecuted for homicide? That someone might fall and break a neck is a reasonable assumption, that the ambulance crew would breach some of the most basic medical protocol is not.

[Drewski]

Foreseeability is not an element of murder laws. I'm not certain of the answer but you're walking down the wrong path.

[David Nieporent]

I can’t see that not being a violation of state malpractice laws.

What "state malpractice laws"? Malpractice is a common law tort.

And what does this do to the criminal charges against the perp who hit him? If he only died because of the incompetence of the ambulance crew, can he be prosecuted for homicide?

Yes. He did not "only" die because of the incompetence of the ambulance crew. He died because he was punched and hit his head. And maybe the ambulance crew's incompetence contributed as well.

[jimc5499]

That would be the danger that I spoke of.

[jimc5499]

My State has a "Good Samaritan" Law. If you are not a medical professional and are trying to aid a person, you can't be sued. One of the reasons I never got am EMT rating. I have a first rate first aid kit in my car and know how to use everything in it. I got it after holding an artery closed with my fingers when I came upon an accident several years ago.

[Dr. Ed 2]

Its the priority of the call -- it would get a higher one from the cops who could also assess the situation, ie status inside vehicle.

This is also why you bring in other officers to relieve those involved in the chase.

[Jerry B.]

I was gonna say…

[Rossami]

I would argue that there are two missing obligations. First, a bystander calling 911 just gets into the dispatcher queue. The police are trained to radio in incidents and to provide the additional detail that the response team needs but that a bystander might not be able to see.

Second, yes the police have an ethical (and in many jurisdictions, legal) obligation to render aid until the EMTs get there. You might not move them unless there's an active danger but there's a LOT more aid that can be provided without moving - or waiting.

[John F. Carr]

Judge Mark Repp, the drug test fan, was merely suspended for one year and as of earlier this year was trying to get his old job back. The internet says he has been been the beneficiary of absolute immunity before.

[SRG2]

I wonder whether Orta also considered suing everyone else involved in her being abused. Is there such a thing as QI by contagion?

[David Nieporent]

Orta did sue everyone else involved, or at least some other people involved.

[John F. Carr]

On the tax sale case, I remember when a relative by marriage died and the poorer heirs wanted the executor to auction his house so they could have a little bit of money now rather than market value later.

[BillyG]

I'd like more info on the auction. If it was poorly attended/advertised, etc. Basically, was it a legitimate auction? Or was it set up to keep the price down?

[not me]

Well, the city thought they were going to get to keep the money. So I imagine it was intended to get the best price they could.

[Jerry B.]

Or it was that auction where the notice was in tiny print in the back of a local newspaper two states away, and the mayor’s cousin just happened to get a copy. He gets a cheap house, and the city gets the proceeds.

[ducksalad]

I think we have to distinguish between the city and the city employee responsible for the auction. City employees don't have much personal incentive to get the best sales price.

[David Nieporent]

According to the 6th circuit, the plaintiff didn't challenge the auction procedures in the district court. He tried to do so in the court of appeals, but that's not the way it works.

[SRG2]

I have occasional involvement in tax sales. A significant proportion of the sales do not get close to a genuine market price not least because the information needed to evaluate the property and that would be available on an "open" sale is missing.

[Bob from Ohio]

"In the United States v. Cartwright, 411 US 546, fair market value (FMV) is defined as “the price at which the property would change hands between a willing buyer and a willing seller, neither being under any compulsion to buy or to sell and both having reasonable knowledge of relevant facts." Cornell Legal Information Institute

Foreclosure and tax sales don't really fit this. Lack of information as you say and a large measure of "compulsion".

Ohio has a 2/3 of [court appointed] appraised value requirement for foreclosures.

[bernard11]

I agree.

On top of all that there is often a lack of promotion. Just putting a notice somewhere won't do the trick.

And what about an agent who works on commission to sell the house? That's the norm in private residential sales. I doubt tax sales use agents.

[SRG2]

I doubt tax sales use agents.

In NY they generally use auction houses.

[John F. Carr]

The California gun plaintiffs filed their case in 2019 and have yet to have their likelihood of success evaluated. A small part of the delay was waiting for the decision in Bruen.

https://www.courtlistener.com/docket/15859289/baird-v-bonta/

[hoppy025]

Delaying is the whole point. "Justice delayed is justice denied," but only if a woman is told she can't kill her 38 week old fetus or if the Rev. Kirkland and SimonP are told they can't erupt into their respective "husbands."

[John F. Carr]

There is a state law duty to stop and render aid after a car crash, even if it was totally the other guy's fault.

[Drewski]

I don't know of a single state that has such a duty and extends it beyond "call emergency services." The police may (and I think do) have a duty beyond that of the general public, but the duty you refer to was fulfilled.

[Rossami]

There is not such a law in any state that I've lived and had a first aid certification in. Can you please tell us what state you are in and, if possible, a cite to the state law in question?

[Krayt]

More and more governments are demanding that "professionals," rather than mere volunteers, help people, whether feeding those in need or trimming a neighbor's trees. But that crowds out civil society and frays the bonds between us. Is it therefore time to recognize a "right to volunteer"?

I recall an article years ago where the department of labor didn't like it that a struggling small radio station was being kept on the air by volunteers. Uhhh, unpaid people being ripped off and depressing wages. Or something.

[Dr. Ed 2]

It's usually the unions that don't like this.

[Krayt]

Property owner fails to pay just over $1k in property taxes. Gratiot County, Mich. officials take it, sell it at auction for a cool $42K, and keep all the dough. Sound familiar? Yeah, this spring SCOTUS said that's a no-no. So owner wins in district court on his takings claim but not on his argument that he should get the fair market value—arguably almost $100K—not just the auction proceeds. Sixth Circuit: One way to calculate fair market value is to hold an auction.

A couple of decades ago, there was a terrible scandal in Detroit, where government people would look for old people living alone with no known relatives, get them declared incompetent and become their wardmasters and put them in a home. Their house, now, needs to be sold.

They would tip off a confederate, who would snap it up at auction for a few thousand (one went for $700! A few thousand is way too low even for a bad neighborhood, as evidenced by...) and then immediately flip it for 10-20k.

So you'll pardon me if I find claims of government auctions of homes as being fair market value being a touch sus.

[croaker]

Didn't Tom Hanks just star in a movie where this happened?

Otto?

[MatthewSlyfield]

A similar thing happened in Florida, but it wasn't the state. Private actors not connected to the family were empowered to sue to have people declared incompetent and then would put them in a cheap home while liquidating the victims assets.

[Krayt]

It could have been that way in Detroit, I don't remember the details. Somehow that seems even worse, that private people could just go do that, as a sort of business model.

[Brett Bellmore]

I don't know, as a child my dad did a stint as a realtor during an auto union strike, back in the early 70's, and I got to look through the Detroit listings.

Remarkable number of houses up for sale I could have afforded on my allowance and lawn mowing income... Depending on the location in Detroit, real estate prices could be VERY low.

[Rossami]

Suspicious, maybe. And if you have actual evidence of collusion, you could certainly bring that to challenge a particular auction (or pattern of auctions by a jurisdiction). But absent such evidence, the presumption that an auction generates a fair market price is strong.

[ReaderY]

In the 5th Circuit FDA case, the 5th Circuit dove into the merits of the plaintiff’s claims without any assurance of the existence of standing. At the very wnd of its opinion, after addressing numerous other issues, it agreesd with the FDA that evidence of standing was questionable and remanded to the District Court for a hearing on standing.

Standing was the only issue the 5th Circuit had standing to address. It had no authority to speak, no authority to issue an opinion of any kind, on any subject other than standing, until standing had been determined. It certainly had no authority to construe the FDA statutes or tell the FDA what to do. Its behavior was entirely ultra vires.

Which is somewhat ironic, given that the plaintiffs accused the FDA of speaking on a matter it had no authority to speak on.

Given that the Constitution prohibits federal judges from using their office to dispense pure legal advice, you’d think judges would take care not to violate their own advice in the very act of dispensing it.

[ReaderY]

That said, although I strongly doubt there’s standing here, the 5th Circuit may be right on the merits. The FDA has no authority to dispense personal medical advice, just as it has no authority to regulate the practice of medicine generally.

And this basic principle is a key reason that I’ve argued that the FD&C act does not conflict with, and hence does not preempt, state abortion laws. State abortion laws regulate the practice of medicine. The FDA has no authority over that field. Accordingly, FDA approval to ship a drug in interstate commerce in no way conflicts with a state law prohibiting or otherwise regulating the dispensing or use of that drug in an individual medical case.

[David Nieporent]

That said, although I strongly doubt there’s standing here, the 5th Circuit may be right on the merits. The FDA has no authority to dispense personal medical advice, just as it has no authority to regulate the practice of medicine generally.

What "authority" does a government agency — and more specifically, the employee of a government agency — need to… tweet? That an agency does not have authority to issue binding rulings or regulations on an issue doesn't even remotely imply that it cannot make a public statement about the issue.

[Magister]

I recall a recent case (8/11 Short Circuit) about an out-of-state prescription for an off-label use of a drug where the pharmacies could refuse to fill the prescription in part because of recommendations by appropriate authorities, including the FDA. So such an agency's public statements carry more weight than different agencies or individuals; I would expect that their statements about such matters should be considered and justified (and were with respect to ivermectin and hyrdroxychloroquine to treat COVID), just as psychiatrists should not try to diagnose public figures while the rest of us can just say they're crazy. It's more expertise justifies authoritative statements but then that implies a responsibility in their use.

From Salier v. Walmart:

At the time that Walmart and Hy-Vee refused to provide ivermectin and hydroxychloroquine to the Saliers, every major medical authority and government agency that had addressed the issue had said that ivermectin and hydroxychloroquine should not be used to treat COVID-19. Obviously, there is nothing extreme or outrageous about a pharmacist’s following the advice of these authorities.

[MatthewSlyfield]

From the decision:

"Because the district court relied on sovereign immunity, it did not
address Article III standing. The Doctors timely appealed."

It looks to me like the standing issue was not before the 5th Circuit, The issue before it was sovereign immunity.

[Drewski]

Standing is before every federal court in every case. That said, I have no opinion on this one - no time to look at it.

[MatthewSlyfield]

Considering the district court ignored standing and dismissed the case on sovereign immunity, I don't see the problem with the circuit court deciding the sovereign immunity issue (which is what was appealed) and sending the rest back to the district court, which is what they did.

[Krayt]

Allegation: Man can’t get up after being punched and hitting his head on parked car outside Ponca City, Okla. bar. Though he’s lost feeling in his extremities, EMTs decide he’s just drunk and, per their usual practice, load him into an ambulance without stabilizing his neck, which is broken. His head flops forward. He dies. Tenth Circuit: Qualified immunity and no suing the city, either.

A drunk man has just as much right to an unbroken neck as a sober one, and is in much more need of it.

[Jason Cavanaugh]

My mother, despite not running calls anymore, has kept her Paramedic license current for the past 20 years.

A head injury with resultant loss of feeling in extremities should scream 'neck brace' to even the most beginner of EMT-Basic trainees.

Once again, qualified immunity rears its abusive and oppressive head.

[croaker]

Somebody should have had their EMT certs revoked. While we don't do the full backboard restraint on everybody these days, there should have been a high level of suspicion of cervical injury here.

[Drewski]

Poor David Park. Assigned as amicus to defend the trial court's behavior in the 3rd Circuit murder case above, the best he could come up with is claiming a procedural defect that not only wasn't factually true but could not have been. I wonder if his heart was in it.

And that CA8 dissent! Basically, "Ain't no Supreme Court clearly establishing law in *my* circuit."

[SRG2]

IMO Rogers was fortunate that he was in the 3rd circuit not the 5th. I suspect the 5th would not have granted habeas, on the unspoken grounds that Rogers was obviously guilty of something.

[hoppy025]

https://www.cnn.com/2023/09/09/us/new-mexico-gun-violence-emergency/index.html

The Democrats aren't even trying to hide it anymore. The only way this stops is if there are real consequences to politicians doing this.

For example, prison time or death sentences for passing unconstitutional measures. And the constitutionality shall only be determined by white conservative men, so fat rice and bean eating lesbians like Sotomayor and nasty black women like Ketanji Jackson don't get a say.

[tkamenick]

"Sixth Circuit: For trips inside Kentucky, no." I mean, yes, but really no, not in judicial fantasy land since Wickard.

"Police have a duty to aid injured people they take into custody," Police have a duty to aid people THEY INJURE. They can't shoot somebody (even justifiably) and then walk away and fail to provide aid

[hoppy025]

Why can't the market decide if the services are needed? Good job Democrat Beshear!

[David Nieporent]

What does Beshear have to do with it, you half-wit troll? CON laws exist everywhere, and the ones here were not enacted during Beshear's term, let alone by Beshear.

[David Nieporent]

“Sixth Circuit: For trips inside Kentucky, no.” I mean, yes, but really no, not in judicial fantasy land since Wickard.

Wickard says that the federal government can regulate intrastate activities that affect interstate commerce. It says absolutely nothing about the dormant commerce clause.

[tkamenick]

You're right about that. Moving too fast.