Short Circuit: A Roundup of Recent Federal Court Decisions

Wedding officiants, teaser profiles, and administrative animals.

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

Happy Friday! IJ is going back to the big show! Read all about it. Or listen to a past episode of the Short Circuit podcast about the case.

And speaking of the Supreme Court: For the latest edition of the Short Circuit podcast, we head over to Stanford Law School to visit with some friends at the Supreme Court Litigation Clinic there.

• Puerto Rican drug trafficker is arrested, and the ensuing search turns up a 9mm pistol. Whoa! It's been modified to fire fully automatic—it's a machine gun! The trafficker is charged with possession of a machine gun in furtherance of a drug crime, which carries a 30-year sentence. He objects that he had no idea the pistol was modified—he was holding it temporarily for his boss—and asks for a jury instruction requiring the gov't prove he knew the pistol had been modified. The district court denies the instruction, and he's convicted. First Circuit: Vacated. "The contention that an injury can amount to a crime only when inflicted by intention is … as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose between good and evil."
• In which the Second Circuit determines that Connecticut's state-law claims against ExxonMobil for unfair trade practices—allegedly misleading consumers about climate change—belong in state court.
• Man who fled war in Bosnia at age six wrecks his car on the highway and is convicted of DUI. Deport him? BIA: Yup, he was high on pot, which is federally illegal. Third Circuit: Reversed! It's the elements of his state DUI conviction, not the underlying conduct, that trigger deportation. And the elements of his conviction did not identify a specific drug.
• The National Labor Relations Board is an interesting administrative animal. It is an inferior tribunal to federal courts of appeals but follows precedent that it itself has made and that has been expressly disagreed with by … federal courts of appeals. This dynamic was at play in this Third Circuit opinion about a Pittsburgh newspaper that discontinued some of its paper editions and consequently laid off some of its unionized "paperhandlers."
• Parties to a dispute about dredging at a Lake Charles, La. port agree to have their case heard by a magistrate judge. After a 20-day bench trial, the magistrate sides with the plaintiff, awarding them more than $124 mil. Uh oh! Nobody told the defendant that plaintiff's counsel was a groomsman at the magistrate's wedding, or that the magistrate had officiated the wedding of one of plaintiff's counsel's daughters three months before the lawsuit was filed. Fifth Circuit: Which means defendant's consent to magistrate-judge referral may have been constitutionally insufficient. Remanded for discovery into how close the judge and plaintiff's counsel really were.
• Berrien, Mich. officers take incoherent, agitated man—who is accused of damaging property—to ground. He dies of asphyxia. Sixth Circuit (unpublished, over a dissent): A jury should decide if the officers used excessive force after he was on the ground.
• Illinois has a points-based system for scoring applicants for licenses to operate cannabis dispensaries, but there are far more applicants with perfect scores than there are licenses, so the state holds a lottery limited to applicants with perfect scores. But the only way to get a perfect score is to be an Illinois resident, severely harshing the vibes of two out-of-state cannabis entrepreneurs. They sue, alleging a violation of the dormant Commerce Clause. District Court: And they're basically right, but they waited to sue until two years after the application deadline and eight months after the lottery results were announced; it would be inequitable to unwind the results now. Seventh Circuit: Quite right. And since Illinois has now removed the bonus for state residents, plaintiffs' other claims also fail.
• In which the Seventh Circuit savages a New York-barred lawyer who has spent much of his career getting into trouble in Illinois. In honor of the Seventh Circuit's fierce aversion to advocates' mentioning the names of authoring judges when discussing judicial opinions, we will refrain from naming the authoring judge. (But yes it's exactly who you think it is.)
• ZoomInfo is an online directory of professionals and their employment information. If you look someone up on their website, you'll see a "teaser profile," providing the person's name, employer, and job title, along with a subscription link to view the full profile. A California labor organizer files a class action, alleging that ZoomInfo violated her (and everyone else's) right of publicity by using her name and likeness to promote its product without permission. ZoomInfo seeks dismissal under California's anti-SLAPP law, but is denied. Ninth Circuit: As it should have been. Concurrence 1: We shouldn't even hear interlocutory appeals of anti-SLAPP denials! Concurrence 2: I also think that!
• University of Arizona football player—whom the university knew repeatedly and violently assaulted two female undergraduates the previous year—repeatedly and violently assaults female student in off-campus house he shares with other players. She sues under Title IX. Ninth Circuit (en banc): Her case can go forward. She's sufficiently alleged the university had substantial control over the context in which the assault occurred, that the university knew about it, and that it was deliberately indifferent. Multiple dissents: She didn't, and we're really stretching Title IX here.
• Huntsville, Ala. officers: When we told man—who we suspected of messing with a car that wasn't his—to produce ID, he jumped up and waved his hands in a physically threatening manner! Which gave us arguable probable cause to arrest. Eleventh Circuit: The four separate video cameras that captured this moment show nothing of the sort. No qualified immunity.
• After TASER International, Inc. successfully sued Phazzer Electronics for various violations of its intellectual property, the owners of Phazzer, in plain violation of the court's injunction, just wouldn't stop selling stun guns! Eventually, a federal court holds them and a former Phazzer employee in criminal contempt. The former employee challenges her conviction on the grounds that, as a former employee, she isn't bound by the injunctions. Eleventh Circuit: And she successfully dodges this TASER. She might possibly have been subject to criminal contempt for aiding and abetting someone still bound by the injunction, but the gov't didn't present that theory.
• And in en banc news, the Fifth Circuit will reconsider its opinion holding that Mississippi's felon-disenfranchisement law violates the Eighth Amendment's prohibition on cruel and unusual punishment.
• And in amicus brief news, IJ is urging the Seventh Circuit to take probable cause seriously in the context of warrantless roadside automobile searches, including here, where an Urbana, Ill. police officer searched a car based on the alleged smell of "a little bit of weed," ultimately turning up an illegal handgun. Since weed and hemp are both legal in Illinois, this smells more like the sort of general searches that led the Founders to enact the Fourth Amendment.

Friends, as you may know from this very newsletter, we at IJ have sued the FBI twice already over the same March 2021 seizure: taking money and other valuables owned by people who are not suspected of any crime from hundreds safe-deposit boxes in Los Angeles. (Instead, it was only the business that owned the vaults that was suspected of wrongdoing.) Well, hold onto your hats, because we have just now filed a THIRD separate lawsuit arising from a third distinct outrage: The FBI has lost some of the valuables it seized, including a whopping $123k worth of gold coins from one client. Just up and vanished! And while the FBI so far maintains they haven't done anything wrong, we maintain that … they really, really have. Click here to learn more.

Comments

[Dr. Ed 2]

I wouldn’t want to fire a 9MM handgun on full automatic — a Uzi, firing the same round, is referred to as a 50-50 weapon, a 50% chance you’ll shoot yourself instead.

I wonder if h was set up — with the “on and after” intended to remove him.

[Jerry B.]

I expect he’s simply lying about not knowing it was full auto, and about it belonging to his boss, unless the boss has testified that it was his. Seems strange that the court would take his unsubstantiated word.

[Dr. Ed 2]

I know a little bit about guns, but I doubt that I would have noticed that it had an "external sear" -- whatever that is. So if I'd never fired the weapon -- and a lot of druggie guns are never fired (and are in such poor shape they'd likely explode if they were) -- I'd never know it was full auto.

I think it is the right decision because of mens rea -- the government has to prove that he knew.

[MatthewSlyfield]

https://en.wikipedia.org/wiki/Glock_switch

A Glock switch or Glock auto-sear is a small device that can be attached to the rear of the slide of a Glock handgun, converting the semi-automatic pistol into a machine pistol capable of fully automatic fire. As a type of auto sear, it functions by applying force to the trigger bar to prevent it from limiting fire to one round of ammunition per trigger pull. This device by itself, regardless if it is installed on a slide or not, is considered by the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) to be a machine gun, making possession of the device illegal in the United States.

[MatthewSlyfield]

This video has a good illustration/explanation of how the Glock switch works.

https://www.youtube.com/watch?v=syERO6LYkaA

[SMP0328]

The First Circuit was saying that the judge should have instructed the jury that it needed to determine if the defendant's claim of ignorance as to the gun's firing capabilities was truthful.

[ReaderY]

He not only doesn’t have to say anything, he has a right not to. The prosecution has to prove intent beyond a reasonable doubt, and the jury has to be instructed on intent. Since that didn’t happen here, the defendant prevails.

[MatthewSlyfield]

"and the jury has to be instructed on intent."
Had the court gone the other way, this wouldn't be the first strict liability (no intent) law. See statutory rape at the state level.

However, what the First Circuit said is that intent is the default and if Congress wants to create a strict liability law, they have to be explicit about it, and the relevant provision of the NFA is not explicitly strict liability.

[tkamenick]

The court doesn't have to take his word. The question was whether the jury had to be instructed whether knowing the gun was modified was part of the crime. Having successfully appealed, this defendant will have to convince the jury he's telling the truth.

[The Margrave of Azilia]

It sounds like they left it up to the jury to see if intent could be proven.

[John F. Carr]

In 2008 a boy accidentally killed himself shooting an Uzi at a gun show in Massachusetts. (Or as the obituary said, "passed away unexpectedly."). Looking for proper charges in the aftermath prosecutors discovered it was a crime to let a minor use a machine gun. The police chief who ran the gun show did not know about the law. He was acquitted on manslaughter and gun charges but lost his job, went downhill, and ended up in trouble with the law again. The club that ran the gun show was convicted and fined the maximum $1,000 allowed by law.

The boy's father had been warned he should pick a less powerful gun for his son to shoot. He got some money in a settlement from companies that probably weren't really responsible. The people who were responsible didn't have deep pockets. For example, the machine gun station was under the supervision of 15 year old.

[SMP0328]

The FBI has lost some of the valuables it seized, including a whopping $123k worth of gold coins from one client.

Yeah, lost. Try taken home by some of the agents.

[FivebySixThree]

seems like grounds to investigate all FBI who had access to the evidence. should not be too hard to query banks to find some abnormalities.

[Idihax]

A dollar to doughnuts the corrupt agents were black.

[Rev. Arthur L. Kirkland]

The Volokh Conspiracy: Official Legal Blog Of Right-Wing Bigots.

The Hoover Institution must be proud.

[LawTalkingGuy]

I am very interested in seeing whether the Fifth Circuit is going to take up the magistrate consent case en banc. Some lucky defendant managed to get 3/4 of the active democratic appointees on the court for their panel. The case turns on the impact of judicial friendships and their nondisclosure. Since this has been in the news lately regarding SCOTUS, I wouldn’t be surprised at all if someone (probably Ho) votes to rehear this en banc so they can write lengthy opinions about how it actually doesn’t matter if judges are secretly best buddies with one side’s lawyers and that it’s not a due process or ethical concern at all.

[TwelveInchPianist]

Interesting decision from CA6 upholding Tennessee and Kentucky's prohibition on certain medical procedures performed on minors.

[dwb68]

. deleted - it was the other case--

[Rev. Arthur L. Kirkland]

Even by backwater Louisiana standards (or lack of them), Magistrate Judge Kathleen Kay (neglected to mention the longstanding, close relationship with lead counsel for a party appearing before her, a failing to which even the Fifth Circuit objected) seems unfit to judge anyone or anything.

[TwelveInchPianist]

Hey, another Kirkland comment without any n-bombs. Nice work, Arthur!

It's been ten (10) days since a comment authored by Arthur Kirkland containing a vile racial slur was posted to this blog.

[Rev. Arthur L. Kirkland]

If this is how our dwindling supply of right-wing bigots wish to spend the time they have remaining before replacement by their betters . . . it's a free country.

Legitimate law schools shouldn't have to put up with it from faculty members, though.

[TwelveInchPianist]

Your are referring, of course, to me harassing you about typing out your vile racial slurs instead of bowdlerizing them. Yeah, who would want to spend their time doing that, amirite?

[SomeGuy 2]

These seem pretty ticky tacky. The judge is, as the name implies, a lady and the counsel was a groomsman, i.e. on the other side of the wedding. Friend of a spouse is a pretty distant connection. Merely officiating a wedding of someone related to counsel is even more distant. The defendant may be entitled to some discovery here, but if that’s it the verdict should stand. Right now all they have is a game of twelve degrees of separation and this sort of logic would basically disqualify everybody in more rural areas where everybody knows everybody.

[David Nieporent]

As you say, it will depend on the specific facts. But you are minimizing it by abstracting it away to "friend of a spouse." (Which I'm not sure I would characterize as "pretty distant" anyway.) The issue is "participant in the person's wedding." That's at a minimum a really really close friend of a spouse, and if they all are in the same geographic area is very likely a friend of the judge as well.

And I don't know why you say "merely" officiating a wedding. (Which you also try to minimize by saying "someone related to" counsel when it's… counsel's daughter.) If the officiant is a town clerk or the like, then, yeah, it's pretty meaningless because, after all, that's the person's job and they probably do hundreds of such events. But this is a federal judge. That's not a routine function of the job; that's something one does as a favor for a friend.

[LawTalkingGuy]

The issue isn’t whether she is disqualified or needed to recuse. It is whether the defendants were able to constitutionally consent given to the magistrate, thereby giving up their ability to have the matter handled by an Article III judge. That’s a slightly different issue. I think if this came up with an Art. III judge conducting the trial, defendants would likely be out of luck. But when the question is whether to consent to a particular magistrate, ticky tack issues might matter more.

[Noscitur a sociis]

The first circuit machinegun case seems pretty clearly wrong. Possessing a non-automatic firearm during a drug trafficking crime triggers an enhanced penalty, just not as enhanced a penalty as if it is automatic. And knowledge is generally not required for these kinds of enhancements the same way it is for elements of a crime. Indeed, the underlying drug charge he was convicted of Carrie’s a mandatory minimum based on the drug quantity, but I believe every circuit holds there’s no knowledge requirement for the quantity.

[John F. Carr]

The machine gun case involves a mandatory minimum so Alleyne v. United States controls.

[Noscitur a sociis]

While that’s true, it has literally nothing to do with the issue in this case. Obviously everyone agrees that the prosecution needs to prove to the jury beyond a reasonable doubt that the firearm at issue was a machinegun.

Possessing a firearm during a drug trafficking crime normally carries a five year mandatory minimum. (And yes, of course the jury has to find that the defendant possessed the firearm, and did so during and in relation to the underlying crime.) Additional details about the firearm can raise that minimum higher, e.g. if the firearm is brandished it goes up to seven years, or as here, if it was a machinegun it goes up to 30.

I’m not aware of any tradition that requires proof that the defendant had knowledge or intent about facts that merely increase the sentence, as opposed to the things that make something illegal in the first place. (Again, if there is such a requirement, obviously it would have to be found by a jury.) That’s certainly not how it works with the other crime the defendant was convicted of. Distributing cocaine normally has no mandatory minimum, but there’s a mandatory minimum of five years for distribution of 500 grams or more. And as far as I know, every circuit agrees that there’s no need to prove that the defendant had any knowledge of the quantity involved. (Though again, there does need to be a jury finding that that was actually the quantity.)

[SomeGuy 2]

Yeah, they're basically inviting an ostrich defense that's going to be nearly impossible to disprove.

"I just hang on to powders and gun shaped objects for my boss. Sometimes people trade envelopes for the powder, sometimes the boss borrows the gun and then returns it. Anyway, I'm definitely not a crook."

Then the boss turns around and claims he's never heard of this guy.

[tkamenick]

Juries are allowed to not believe people.

[John F. Carr]

I guessed the Seventh Circuit judge, mostly because if you asked me to list the names of the judges on the Seventh Circuit his is the only one I remember. I also know Posner's name, but he is retired.

[David Nieporent]

I also know Posner’s name, but he is retired.

And has Alzheimer's.

[tkamenick]

"District Court: And they're basically right, but they waited to sue until two years after the application deadline and eight months after the lottery results were announced; it would be inequitable to unwind the results now. Seventh Circuit: Quite right."

This doesn't make sense to me. The application deadline is irrelevant - you aren't injured until you don't get chosen. And 8 months isn't that long. Doing your due diligence before bringing a case sometimes requires that much time.

"And in en banc news, the Fifth Circuit will reconsider its opinion holding that Mississippi's felon-disenfranchisement law violates the Eighth Amendment's prohibition on cruel and unusual punishment."

This is where the terrible 8th amendment capital punishment jurisprudence has gotten us. Some justices just will do anything to get rid of capital punishment, and lower courts use the same tortured reasoning (well, only 15 states do it, so it's cruel & unusual!) to get rid of any criminal laws they don't like.

" Since weed and hemp are both legal in Illinois, this smells more like the sort of general searches that led the Founders to enact the Fourth Amendment."

Only if you ignore that weed is still illegal under federal law. It's not a generalized search if you have evidence of illegal activity, duh.

[Noscitur a sociis]

The question of whether and to what extent state law enforcement can use violations of federal law to justify searches is actually more complicated and less settled than it might appear at first blush. Prof. Kerr has the leading article on the topic. https://harvardlawreview.org/wp-content/uploads/2018/12/471-535_Online.pdf

(To be clear, IJ’s brief doesn’t engage with this actual doctrinal issue at all and is mostly a policy gripe against civil forfeiture and other issues they see with contemporary policing.)

[Noscitur a sociis]

Friends, as you may know from this very newsletter, we at IJ have sued the FBI twice already over the same March 2021 seizure: taking money and other valuables owned by people who are not suspected of any crime from hundreds safe-deposit boxes in Los Angeles.

It is perhaps worth noting that IJ already lost the first lawsuit (challenging the seizures themselves) and doesn’t seem poised to do better on the second (challenging the information provided in the forfeiture notices). Third time’s the charm?