Short Circuit: A Roundup of Recent Federal Court Decisions

SWAT takings, retaliatory liens, and a Spam confiscation.

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

CERT GRANTED! Friends, we are excited to share that the Supreme Court has just taken up Gonzalez v. Trevino, an IJ case about officials who spent months scheming to have our client jailed on bogus charges after she criticized them—and whether the First Amendment might protect against such a thing.

New on the Short Circuit podcast: Special guest Prof. Daniel Epps joins the show to talk about the Fourth Amendment and general law.

• New York prisoner hands a can of Spam to another inmate. A corrections officer—who apparently doesn't like Spam—confiscates the can. Original prisoner demands the Spam back. For this he is locked in a holding cell for 23 hours a day, leading to a revocation of his upcoming parole. And all that without a hearing. Due process violation? Second Circuit: Maybe, but qualified immunity so we're not going to tell you.
• Promising basketball player commits to the University of Louisville in exchange for a full-ride scholarship. Yikes! Seemingly unbeknownst to the youth, his father, as facilitated by an agent, accepted $100k from Adidas to entice his son to attend Louisville, a school sponsored by Adidas. When the FBI's investigation becomes public, the school refuses to allow the student to practice or play (but did not withdraw his scholarship), and his basketball career didn't take off. Did Adidas and the agent do a RICO to the student? Fourth Circuit: They did not.
• After fugitive holes up in innocent third party's McKinney, Tex. home, SWAT officers shoot tear-gas grenades into the home, drive through the front door, etc. The damage leaves the homeowner in financial ruin. Must the city compensate the homeowner? Jury: Yup, pay $66k. Fifth Circuit: Everything the city argued is wrong, but we reverse anyway on other grounds not briefed. (This is an IJ case.)
• Texan Jedidiah Murphy, on death row for the 2000 carjacking murder of a 79-year-old woman, seeks an eleventh-hour stay of execution that will allow him to have DNA testing performed on certain evidence. But the evidence wouldn't prove him innocent of the murder, just an alleged kidnapping that was considered at sentencing for assessing future dangerousness. The Fifth Circuit is already considering a case on the same issue that is fully briefed, argued, and awaiting decision, so the district court grants a stay pending the outcome of that case. Fifth Circuit: Which was reasonable enough. Dissent: I don't have time to point out all the errors in the majority opinion, so I'm just going to attach what I think the majority opinion should have said. (NB: The day after this ruling was filed, the Supreme Court dissolved the stay and Texas executed Murphy.)
• Investors in Fannie Mae and Freddie Mac sue over some super-complicated stuff related to mortgages and bailouts and whatnot. They take it all the way to the Supreme Court! Which says (2021): There's an Appointments Clause problem here. Remanded to see if it caused the investors harm. District court: Yeah, even if appointments were made differently God knows if they would have been better off. Too speculative. Fifth Circuit: Affirmed. Every time you make an assumption . . .
• Former NFL running back—forced out of the game by multiple concussions over an eight-year career—applies for and is granted disability benefits from NFL's retirement plan. When the Social Security Administration finds him entirely disabled, he goes back to the NFL and gets his benefit increased to a higher tier, but not the highest tier. He doesn't appeal that ruling, but two years later goes back and seeks adjustment to the highest tier. The NFL denies the adjustment and the player sues under ERISA. Fifth Circuit: The district court's opinion paints a devastating picture of the NFL's "rubber stamp" review process, but he needed to appeal that first adjustment.
• Man cocked a gun and threatened to kill me, the mother of his children tells police no more than fifteen minutes later. "I have adrenaline pumping through me." The man, at trial: These statements are hearsay. They are definitely not admissible as excited utterances. Sixth Circuit: This is not a close case. Conviction affirmed.
• During a nighttime protest in the wake of George Floyd's murder, Des Moines, Iowa police officer tackles, pepper-sprays a news photographer and arrests him for "failure to disperse." Charges dropped, the photographer sues. Eighth Circuit (over a partial dissent): No qualified immunity for the officer on the photographer's Fourth Amendment claims for unlawful seizure and excessive force. The photographer was standing by himself, not as part of an unlawful assembly, and the officer tackled him for basically no reason. To trial the case must go.
• Half of the Sunset Strip Killers duo is on California's death row for six murders. In 1992, he filed a pro se "writ of habeas corpus" seeking counsel to investigate possible habeas claims but without seeking habeas relief. As that was filed before AEDPA's enactment in 1996, does he have wider latitude in seeking habeas relief? Ninth Circuit: He does not. His original petition didn't seek adjudication of the claims on the merits, so it doesn't count as a habeas petition. Accordingly, his 1997 petition is the one to review, and it fails on the merits. (Update: He died the day after this opinion was released.)
• It's not every day that a federal appellate court holds a campaign finance disclosure law unconstitutional. But the stars aligned for Wyoming Gun Owners, a nonprofit gun rights advocacy group that was fined $500 for violating Wyoming's "electioneering communications" disclosure laws after it ran provocative radio ads in the state's 2020 primary election. The Tenth Circuit—per Judge Tim Tymkovich, a campaign finance expert from his days in private practice—holds that the disclosure regime is unconstitutional as applied to the "mom-and-pop style issue advocacy outfit." As a bonus, the panel also reverses the district court's denial of attorneys' fees.
• Textualism fight at the Eleventh Circuit, where the whole damn banc is divided on whether "any officer or employee of the United States" includes former officers and employees. Nine judges say no, which is good news for Timothy Pate, a/k/a Akenaten Ali, the self-described "heir to the kingdom of Morrocco," who was convicted of filing retaliatory liens against property owned by a former Commissioner of the IRS and a former Secretary of the Treasury after the IRS refused to refund him $2.7 million in taxes in 2015. (His Highness reported no wages or salary.) Three judges think that result is rather silly.
• And in en banc news, the Ninth Circuit will reconsider its recent decision that there's no conflict between an Idaho law that prohibits most abortions and the federal Emergency Medical Treatment and Labor Act.
• And in more en banc news, the Ninth Circuit will not reconsider its ruling that a detainee fighting deportation was not owed a second bond hearing as a part of his habeas challenge. Eleven judges—which is not enough in the Ninth Circuit—would have voted to go en banc.
• And in additional en banc news, the Eleventh Circuit will reconsider its decision that prisoners must show prison officials acted with more than gross negligence, rather than more than mere negligence, to state a claim for deliberate indifference. (Don't get too excited; at least one member of the court thinks that not even recklessness will suffice.)

New case! Last spring, Ocean Springs, Miss. officials declared that a century-old Black neighborhood full of modest but well-maintained homes is in fact blighted and a slum, a designation that will allow officials to use eminent domain to seize the properties and turn them over to another private owner. And they did it in secret. Mississippi law does not require any notice to property owners, who have only a 10-day window to challenge a blight designation. So this week, Cynthia Fisher and several of her neighbors filed suit, arguing the law violates the Fourteenth Amendment. Click here to learn more.

New case! Last year, Noah Petersen was arrested while calmly reading a prepared statement, in which he called the mayor and police chief fascists, during the public comment period at a Newton, Iowa town hall meeting. But the First Amendment—and the Fourth and Fourteenth—are just empty promises if officials can have their critics jailed on a whim, so this week Noah filed suit to vindicate his rights. Click here to learn more.

Comments

[Jerry B.]

Well, we see that judges are still protecting law enforcement for obviously illegal acts.

[John F. Carr]

Last week I noted that a "blue" panel could have sat on Idaho's application to stay the abortion injunction. I figured the state got lucky and that was the end. I didn't expect the Ninth Circuit to go en banc to mandate emergency room abortions. It's not like they are deciding whether a state abortion ban is entirely illegal. This is a very minor issue that is only being brought to court to signal to the Biden administration's political base.

[SRG2]

I have no particular sympathy for Jedidiah Murphy but it seems obvious to me that if you're sentenced on the basis of a set of facts, demonstrating that those facts are incorrect should result in a modification of the sentence. But as Murphy is unarguably a murderer, naturally he loses 6-3 at SCOTUS.

[SomeGuy 2]

I don’t think that’s right if it wouldn’t have made a difference. Like let’s just say hypothetically a serial killer is sentenced to death after killing 100 people. It later turns out that one of those is wrong and the deceased in that instance was killed by somebody trying to make it look like the serial killer. Doesn’t matter, the other 99 are more than enough. It’s already absurd that it took Texas 23 years to execute someone plainly guilty. The eleventh hour nature of the request should require the court to be extremely skeptical– obviously, he waited until the eleventh hour to buy time with the test, when the eleventh hour came again he’d want another test of something else, etc. Especially after a couple of decades, these delaying tactics should not be allowed.

Meanwhile in California, a killer from *1980* ran out the clock and died of old age. It’s preposterous. That’s the sort of thing that happens when you entertain these endless challenges.

EDITed because I initially said 1992. Nope, even farther back than that, 1992 is when he filed the habeas! Unreal.

[SRG2]

He only received the DP because of a finding pf future dangerousness, and a kidnapping was part of that finding. If that finding was undermined then he did not meet the standard for the DP.

The analogy to your example would be if he'd just been sentenced to death on the facts of the specific case. Or suppose that (reducing the number to a reasonable amount) according to state law a serial killer can only be sentenced to death if he commits 5 or more murders. A particular serial killer is found guilty of 5 murders and is sentenced to death and then someone says one of them was his copycatting so the killer is guilty of only 4 murders.

As far as "eleventh hour" is concerned - there are many reasons why there may be a last-minute appeal, including that defence attorneys who specialise in DP cases are likely to be busy and so won't take a case that isn't urgent.

[SomeGuy 2]

"Hypothetically undermined" doesn't mean the supposedly undermined thing was determinative. It's not even that he's been shown to be innocent of the kidnapping, just that he wants a test that will maybe show that. That's not nearly good enough.

The eleventh hour nonsense is not that every lawyer in the country was mysteriously busy for a couple of decades. The death penalty bar does absolutely intentionally wait to raise 37 novel, frivolous issues on the day of the execution as a dilatory tactic. They do this because it works and a lot of courts tolerate this nonsense, hence the other guy successfully running out the clock despite commuting his murders in the 1980's. I don't blame the defense bar for doing this, they're doing their jobs and even just buying a delay is a partial victory. But courts should categorically reject any claims that the condemned has had twenty years to raise and has just now decided to get around to. The twenty years of delay, delay, delay in this case was already an atrocity. Enough.

[not guilty]

They involve different statutes, but I wonder what effect the en banc Eleventh Circuit's reasoning in Pate will have on efforts by Mark Meadows and Jeffrey Clark -- former federal officers -- to remove the Fulton County, Georgia criminal prosecutions to federal court.

[David Welker]

Regarding Gonzalez v. Trevino...

QUALIFIED IMMUNITY! No one has yet violated the Constitution by retaliating in this precise manner in Castle Hills. Last time, it was a different city ordinance and a different city. It isn't like we can expect government officials to have an actual brain or actually care about the Constitution at all.

I kid. Sort of.

Good luck with this case. It is just so absurd, it should be OBVIOUS. Yet here it is, at the Supreme Court... the mind boggles...

Congratulations to IJ.

[SomeGuy 2]

"New York prisoner hands a can of Spam to another inmate. A corrections officer—who apparently doesn't like Spam—confiscates the can. Original prisoner demands the Spam back. For this he is locked in a holding cell for 23 hours a day, leading to a revocation of his upcoming parole. And all that without a hearing. Due process violation?"

Usually these summaries say "allegation" or "the prisoner says" or something to indicate the court didn't actually find that as true. As usual with these, they're required to assume whatever the prisoner says in the complaint is true due to the procedural posture. ("We first explain the operation of the merit time allowance system under New York law, and then describe the allegations in Bangs’s complaint, which we accept as true in considering Defendants’ motion to dismiss.")

Did a CO really flip out over spam? Possibly, but some prisoners absolutely love their recreational lawsuits, so maybe not. So the summary really should disclose it's just an allegation.

[David Welker]

I disagree. This is posted to a legal blog addressed to a legal audience.

Like, just in terms of efficiency, I don't think they need to describe it as allegations when dealing at the pleading stage. Of course they are allegations; but allegations that for purposes of legal reasoning are considered true.

I find that sometimes when I read the case, there is sometimes something that these IJ summaries are missing. But that is kind of unavoidable.

If you are going to have these short blurbs, you can have depth or you can have breadth. You can't have both.

And right there, is the link with the missing details. You just have to click if you want to learn more. Easy.

[Noscitur a sociis]

Like, just in terms of efficiency, I don’t think they need to describe it as allegations when dealing at the pleading stage. Of course they are allegations; but allegations that for purposes of legal reasoning are considered true.

I mean, as a purely factual matter, they do often start with something like, “Allegation:”. And it probably should have been present here, since the opinion was reviewing a 12(b)(6) motion.

[David Welker]

But 12(b)(6) motions often accept the truth of pleading arguendo. “Plaintiff, even if everything you say is true, you have failed to state a cause of action.”

In that context, the legal reasoning accepts the pleadings as true, for the sake of argument.

Sure, if you were a journalist writing to a general audience, maybe you emphasize that they are allegations. But the point with these blurbs is not to report on or adjudicate the individual case, but to comment on the law.

[Noscitur a sociis]

But the point with these blurbs is not to report on or adjudicate the individual case, but to comment on the law.

I think it’s pretty obvious that the point is very much to comment on the individuals cases, because there’s something noteworthy or interesting about them. Sometimes that’s the facts, sometimes that’s the law, sometimes it’s something else, sometimes it’s a conjunction of several things. But in any of those events, it seems worthwhile to distinguish between facts that have been found or conceded, and facts that are merely alleged.

Certainly for a legally-sophisticated audience, explaining that the case was in a motion to dismiss could serve that function. Though labeling the claims allegations seems a much simpler and easier vehicle. But this didn’t do either.

[defaultdotxbe]

I doubt the CO flipped out over the Spam specifically, my understanding in most (if not all) prisons sharing/transferring commissary items is prohibited because they don't want inmates establishing black markets for goods and services.

There's a lot of variation between prisons/pods/COs in how strictly this gets enforced.

[kotodama]

The Sixth Circuit hearsay case is odd. The foundation for the first element of excited utterance—startling event—is said to be established by the defendant pointing a gun at the declarant. But that's also the event sought to be proven by the hearsay statement itself. So it seems very circular to me. How can that be right?

[Noscitur a sociis]

Because under Fed. R. Evid. 1101(d)(1), the court’s preliminary determination of facts as to whether evidence is admissible is not itself governed by the rules of evidence.

[kotodama]

Thanks, I forgot about that one.

Also, I did some more poking around and recalled the case that really settled the question definitively—Bourjaily v. U.S., 483 U.S. 171 (1987). Ironically, that was also arising from the Sixth Circuit. By my count, 4 Justices would have held that a statement just by itself is insufficient to support admissibility. But of course that view did not carry the day.

https://scholar.google.com/scholar_case?case=12172831567168120411

Out of curiosity I looked at the district court decision and it doesn't cite FRE 1011, FRE 104, or Bourjaily, but of course an express citation isn't required. It does at least make clear that the court's only basis for the startling event was the declarant's "allegations that a firearm was brandished and pointed in her direction just moments earlier[.]"

https://storage.courtlistener.com/recap/gov.uscourts.ohnd.262784/gov.uscourts.ohnd.262784.74.0.pdf

[mse326]

You also have a GJ finding of probable cause (for whatever that is worth). Generally judges won't make rulings that call into question that judgment, so you basically have to start with the premise there is probable cause it happened and probable cause is enough for admissibility

[kotodama]

Good point, thanks.

[jb]

I'm just here to note that the whole hearsay framework is really dumb.

[Davy C]

McKinney case: Perhaps the plaintiff should not have admitted that "it was necessary to destroy her house". That may well have lost the case.

[jb]

On the one hand, true in the context of this decision.

On the other hand, why is there a carve out for "necessary damage" in the Takings Clause? I get that it's fairly narrow as articulated by the court here, but it seems like society would be better off if the government had to pay you back after being forced to destroy your house rather than you just getting unlucky and having your life ruined. That way everyone in the city is bearing a little bit of the pain instead of it all being concentrated on one person who did nothing wrong.

[Davy C]

How does necessity work in an ordinary civil context? If I smash your car window to get to a defibrillator to save someone's life, am I liable for the window?

I guess one can argue it should work differently when it comes to government bodies, though. The city may be one legal entity but they represent lots of people who will benefit from a criminal being apprehended.

The court here was seemingly begging the Supreme Court to reconsider their precedents on this, though.

As a lower court, however, it is not for us to decide that fairness and justice trump historical precedent, particularly Supreme Court precedent, where it has long recognized a necessity exception that excludes those like Baker from the protection of the Fifth Amendment’s Takings Clause. Such a decision would be for the Supreme Court alone.

[Ken Arromdee]

Why should a court assume that a non-lawyer who uses the term "necessary" is invoking a legal concept by that name?

[Gasman]

It seems as if Brian Bowen of Louisville is damaged in the recruiting scandal, it is primarily due to his father's actions in the bribery.
A bit awkward for family at the Thanksgiving, but suing dear old dad might be his best target for compensation(at least 100k if not long ago spent)

[kotodama]

The capsule summary doesn't really do it justice. I suggest reading the opinion itself—the majority and dissent. It's a pretty fast read, and you'll see the case actually focuses more on whether the loss of NCAA eligibility counts as an injury for RICO purposes. But there is also some discussion of causation that addresses your comment too.

[Dr. Ed 2]

Now I am lost -- I thought one didn't lose NCAA eligibility unless one actually practiced & played with the team, which he didn't.

[Dr. Ed 2]

"During a nighttime protest in the wake of George Floyd's murder, Des Moines, Iowa police officer tackles, pepper-sprays a news photographer and arrests him for "failure to disperse." ... The photographer was standing by himself, not as part of an unlawful assembly, and the officer tackled him for basically no reason."

I find this surprising because the Amherst and UMass Police interpret "failure to disperse" to include merely remaining present in the area by ones self -- and those are the ones who are most often arrested. And the court convicts them for this. The former Amherst (MA) PD Chief stated that anyone essentially within a mile of where an order to disperse has been given should expect to be arrested.

Student reporters were *targeted* -- and this includes one reporter shot IN THE HEAD with a pepperball, *after* the girl in Boston was killed with one.

[Noscitur a sociis]

The former Amherst (MA) PD Chief stated that anyone essentially within a mile of where an order to disperse has been given should expect to be arrested.

No, they didn’t.

[David Nieporent]

Look, just because he's making a vague, completely unverifiable claim about something that supposedly happened in Massachusetts doesn't mean he's making it up.

[Dr. Ed 2]

It'd be verifiable if you wanted to do the legwork and pull the files.

[The Margrave of Azilia]

“the 2000 carjacking murder of a 79-year-old woman”

And we’re debating future dangerousness?

Of course, it’s possible that he’s mellowed nearly a *quarter century* after the crime. Perhaps now he’s as gentle as a sucking dove.

Basically, I don’t see how Texas can predict how dangerous someone will be in the future, except by focusing single-mindedly on the specifics of the crime itself.

[SomeGuy 2]

Future dangerousness should always basically be proved by the crime itself, making "maybe he didn't do a kidnapping!" even more irrelevant. The rare exception would be, e.g., an abuse victim who after years plotted a careful plan to poison their abuser and did so. It's murder, but unlikely to be repeated. Those kinds of crimes are pretty rare, though, most murders are done either in pursuit of profit or as sport. This appears to mostly be a profit one, so of course there's a strong chance he'll return to his previous career. Sounds like Texas was right to execute him.

[KenveeB]

"Basically, I don’t see how Texas can predict how dangerous someone will be in the future, except by focusing single-mindedly on the specifics of the crime itself."

You look at the crime itself, which Texas courts have held can alone be enough for a future dangerousness finding. You look at criminal history -- someone with a long history of violence or escalating violence can reasonably be determined to be dangerous in the future. You look at things like gang membership, mental illness, non-criminal but still disturbing behavior, statements by the defendant, etc. Evidence of the crime is strong evidence but not the only possibility.

[jb]

That is a very odd way to measure "most attended". Attendance per game is mostly a function of stadium size, which is in turn related to the size of the playing area. The largest NBA stadium seats about 20K people and the average is under 19K so the fact the average NBA game has nearly 18K attendees means that most NBA games are close to sold out.

The smallest MLS stadium seats 18K and the largest seats 42.5K (there's actually several of the stadiums that are larger than this, but they reduce capacity for soccer games) so the fact that MLS is selling a thousand more tickets per game means the stadiums are quite a bit emptier, on average. Also, the NBA and NHL seasons both have more than twice as many games as the the MLS season so way more people are actually going to NBA/NHL games during the course of the year.

This article makes the case that MLS is now the fourth most popular sport in the US. I think that's a reasonable discussion to have, but there's no way MLS is more popular than the NBA. Probably the more reasonable thing to do is just acknowledge that there's now five major sports in the US (and also that the WNBA and NWSL are starting to display some real relevance, with three NWSL teams averaging higher attendance than the men's average, albeit over a shorter season).

[Dr. Ed 2]

With a 162 game season, baseball is the most popular sport. Basketball is the most popular indoor sport with hockey being second, and Football is the most popular tailgating sport.

Football is a pageant more than a game, with halftime entertainment and often more.

As to children playing -- soccer has the benefits of parents thinking their kids won't get hurt, and not having errant missiles going downrange like baseball does. Hockey is dangerous on most lakes and rink time is both expensive and increasingly scarce while basketball can be played in almost any gym.