Short Circuit: A Roundup of Recent Federal Court Decisions

Drone speech, roofer speech, and quasi-judicial speech.

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

In Texas, Louisiana, and Mississippi, public school employees who use unconstitutional violence against students—and those who ignore such violence—enjoy complete immunity from Section 1983 claims. That is bananas, and this week we asked the Supreme Court to put a stop to it (and also to resolve a split between nine other circuits on how such claims should be handled). Click here to learn more.

• Witnesses testifying in court have long been shielded by absolute, quasi-judicial immunity from defamation claims. But what about a witness testifying at a campus sexual misconduct proceeding? Connecticut Supreme Court: Without an oath requirement, cross-examination, or, among other things, an adequate record for appeal, Yale University's proceedings weren't quasi-judicial enough. No absolute immunity. Second Circuit: And no qualified immunity for now, either.
• Under New Jersey law, a non-custodial parent's child-support obligation generally ends when the child turns 19. But if the kid goes to college, a court can order the non-custodial parent to continue support through age 23. Aggrieved dad sues, arguing that it is unconstitutional to require him to pay extended support when a still-married parent could throw the kid out on her ear the moment she turned 19. Third Circuit (unpublished): The state says children with divorced parents have a harder time affording college, and the state can rationally try to remedy that.
• Louisiana man serving 71-year sentence for manslaughter and aggravated attempted rape is up for a parole hearing in November 2016. The parole board votes to grant him parole, with a scheduled release date the following April. Following much negative press, the board then changes its mind and rescinds the parole days before the effective date, citing "technical irregularities" that appear not to have existed and that would not have justified parole rescission anyway. Fifth Circuit: Based on the parole statute in effect in Louisiana at the time, the man had a liberty interest protecting his parole grant from rescission, and there was indeed no permissible reason to rescind his parole. Let him out. (More details, for those interested, are available here.)
• Texas prohibits flying drones over various buildings (like prisons and sports venues) and using drones to "capture an image" of people or things on private (but not public) property. Journalists: Which facially violates our First Amendment right to report news. Fifth Circuit: Nope. The no-fly restriction doesn't regulate speech at all. And the image-capturing restriction doesn't regulate speech for its content, so intermediate scrutiny applies—and is satisfied here because "drones have singular potential to … invade the privacy rights of others." (Nor do FAA regulations preempt this sort of thing.)
• Fowlerville, Mich. police officer pulls over Japanese citizen (in the United States on a valid work visa) and royally screws up the sobriety tests that ensue. Most notably, she read the breathalyzer as showing an alcohol content of 0.22 (high!) when it actually reported 0.02 (low!). All charges are ultimately dismissed. Man: The officer's screw-up led to my visa's being revoked and my being deported to Japan, and it took months to sort things out. Officer: Qualified immunity? District court: No. Sixth Circuit: Not a chance. To trial the case must go.
• MD-Ph.D. student strikes up an online conversation with a girl who looks to be in her late teens or early twenties but claims to be 15. After some gross and also suspicious conversation, he invites her over for sex. Friends, you will never guess what happens next. She's a police officer! He's charged with soliciting a minor and sending lewd pictures. After seven months of motions practice, prosecutors add a charge for attempted production of child pornography, increasing his mandatory minimum from five to 15 years, which he is duly sentenced to following his conviction. Sixth Circuit: And he gets a new trial. There's a good chance prosecutors added the extra charge to punish the defendant for trying to suppress statements he made to police after he had invoked his right to counsel (and those statements should have been suppressed).
• Not being wheelchair-ramp experts, we're unsure how much exactly it would cost the federal gov't to install a ramp at the U.S. Post Office in Shelbyville, Ind. But (we'd hazard) it's probably less than the combined resources spent (a) by the DOJ in defending against a wheelchair-bound Hoosier's Rehabilitation Act lawsuit for the past three-and-a-half years, (b) by the U.S. District Court for the Southern District of Indiana in adjudicating and granting the government's summary judgment motion in said lawsuit, and (c) by the Seventh Circuit in vacating that judgment and remanding for further proceedings. Especially since the City of Shelbyville itself offered to pay for the post office to build the ramp—an offer the USPS declined. Anyway, the case is now going back to the district court for some more litigation on whether building that ramp would be a reasonable accommodation. Concurrence: "It's 2023, for heaven's sake. … One would be hard pressed to find any institution other than the Postal Service that would even dare make the arguments the defense has made in this case."
• If you successfully sue state government officials for violating the Constitution, you can usually get attorneys' fees. But if you want to get fees from the feds, you have to prove that their litigating position was not "substantially justified," which can be pretty tough. Case in point: The Ninth Circuit holds that the Department of Labor was substantially justified in going after a company for unlawfully inflating its value, even though the government's case fell apart when its only evidence—an expert's report—was excluded for having "significantly and unreasonably" undervalued the company. The dissent would have granted fees, arguing that if there's no evidence to support the feds' position, it can't be substantially justified.
• During the pandemic, both Washington State and the city of Seattle imposed moratoria restricting landlords' ability to evict tenants. Was this a physical invasion of the landlords' property in violation of the Takings Clause? Ninth Circuit (unpublished): 'Twasn't.
• Word to the unwise: If you're ever drunk and feel tempted to get in cops' faces ("What are you going to do, tase me? F—n' a—e."), officers can quite reasonably take you to ground and briefly deliver a few strikes until you're cuffed. Per the Tenth Circuit (unpublished), any skull fractures and permanent vision impairment you may suffer are on you.
• Wyoming man wants to hand out campaign literature at polling places, but state law bans him from doing so, or even displaying a bumper sticker on his car, within 300 feet of an election-day polling place or 100 feet of an absentee polling place during the 45 days before an election. The trial court strikes down the 300-foot election-day buffer, but upholds the absentee buffer zone. Tenth Circuit: Strike that, reverse it. The 300-foot election-day buffer is fine, but the 100-foot, 45-day absentee buffer just might be unconstitutional.
• Rogers County, Okla. sheriff deputy serving a protective order to take two children into custody shoots, kills the children's father. The deputy claims that the man became aggressive and violent and that he, fearing for his life, shot the man. The man's sister and mother were also at the home, but their accounts paint the deputy as the aggressor, punching and shooting a cussing but compliant man. Experts disagree about which story the evidence supports. District court: No constitutional violation here, so qualified immunity. Tenth Circuit (unpublished): A reasonable jury could find that the deputy used excessive force. Back down the case goes.
• The city of Doral, Fla. contracted to buy property for $10.75 mil. Property owners: before closing, the private contractors started using our land, contaminating the soil to the tune of needing a $2.8 mil remediation. The City Manager approved the use, so the City is liable for our Fifth Amendment and Fourth Amendment claims. Eleventh Circuit (unpublished): Might well be. The claims may proceed. Dissent: The city council would've needed to sign off on the use for the City to be liable, and there's no allegation that it did.
• Following a move to a new school district, Georgia single mom gives her 17-year-old son a choice: attend school in the new school district and ride the bus, or keep going to the same school (and either walk several miles home or hang out at school or the park until mom can pick him up). The son opts to stay in his old school. When the school's resource officer finds out, she has mom arrested for first- and-second-degree child cruelty. Mom spends four days in jail before posting bond. All charges are eventually dropped and mom sues the resource officer for malicious prosecution. Eleventh Circuit: And her case can go forward. We give cops a lot of leeway, but "even the most officer-protective doctrines have their limits."
• And in amicus appearance news, this week IJ urged the Texas Supreme Court to hold the state to its burden under the First Amendment: If it wants to make it illegal for roofers to talk to their clients' insurance companies (without first obtaining a public insurance adjusting license), the state must put forth evidence that the restriction actually protects the public in some way. (The gov't, meanwhile, said that it could require journalists to be licensed without triggering the First Amendment at all, an assertion quickly walked back after the Justices' jaws dropped in unison. Video here.)

Last year, DeKalb County, Ga. officials passed a measure requiring all gas stations and convenience stores to install security cameras on pain of losing their business license, fines, and jail time. Footage must be made available to police without a warrant. Cameras must meet certain resolution requirements, have night vision, and surveil a range of specific places (like points of entry, exit, and sale). This week, IJ urged officials to repeal the law. Click here to learn more.

Comments

[Mark Regan]

What is the New Jersey post-majority college student child support case doing in Federal court? Isn't there, or didn't there use to be, a domestic relations exception to federal jurisdiction?

[ReaderY]

The Supreme Court said there had never been any such thing, and some lower courts’ belief there was one had been a total misunderstanding, over 30 years ago. The case was Ankenbrandt v. Richards

https://www.law.cornell.edu/supct/html/91-367.ZO.html

[John F. Carr]

The prisoner in Louisiana spent seven years in prison after his release date while the system thought about whether he should be released.

[John F. Carr]

I remember a girl walking to school apparently alone in my town. The cops were called and caught up with her within the first mile.

[jimc5499]

We used to walk about a mile and a half to Junior High in the late 70's. There were two routes we were allowed to take and one where you would get detention if you took it. During the Winter the sidewalks of the allowed routs were not taken care of and got dangerous. The route that we were not allowed to take had clean sidewalks and a couple of places that would allow us to come in and warm up. The main reason that we were not allowed to used that route was that we would have to cross a pair of train tracks. We all took the disallowed route and nothing was ever done about it. These days if a kid waiting for a bus, doesn't have a parent there watching them the bus driver is required to notify Children's Services.

[Absaroka]

" There were two routes we were allowed to take and one where you would get detention if you took it."

Wow! In my 1-12 school career, the school didn't give a rat's derriere what route you took to school. The notion that they had a say on where you walked off school property seems bizarre to me.

(slightly older than you are)

[defaultdotxbe]

Wow, when I was in HS (late 90s) my school was bounded by train tracks on 3 sides and an interstate on the 4th. Due to the intersection of tracks the trains would often have to stop, blocking the road, we were always told not to climb through the stopped train (under threat of detention) but we'd also get a detention if we were late too many times, so we would climb through the trains anyway.

They had some odd penalty stacks, for example a 3rd tardy was a detention, but first ditch was only a warning. So when I was late for class for a 3rd time I just ditched instead lol.

[Dr. Ed 2]

I believe Massachusetts law is still that children are expected to walk 1.5 miles to school, with the school responsible for providing transportation beyond that.

[John F. Carr]

If I understand the state law (Chapter 71 Section 68) correctly it says children may be required to walk 2 miles to school or 1 mile to a bus stop up through grade 6. Older students may be made to travel any distance. In practice ineligible students can pay to get a bus ride. Regional schools must provide transportation. These tend to be high schools.

[Krayt]

Lead in: autistic child tries to kick handler. Handler slaps their hands.

Autistic child pinches handler. Handler slaps their hands.

Lawyer: Unconstitutional violence like that other case where someone choked a kid and that other case where they tased a kid! Excessive violence all!

Two things. I recall in psych 201 class seeing videos of autistic or some kind of troubled kids who would slap themselves in the head over and over. Left alone, they needed ten thousand self slaps or more before it petered away. The experiment was to cattle prod them. This worked, and self slaps dropped to nothing quickly. This, and the experiment, was deemed unethical. I agree, but am uneasy 10,000 self-slaps is somehow better in a difficult situation. I like to think better techiques, or at least drugs, have been developed.

Second, there was an IQ test that asked, if a kid hit you, what should be the response? The “correct answer” was not to hit them back but talk with them. It turned out African Americans got the “wrong” answer, answering you should hit them back. This was held up as an IQ test difference between the races, where the “wrong” answer made one race look statistically dumber, when it was actually cultural differences. IIRC, the difference was explained as living in more dangerous areas, and so immediate “feedback” was a useful and a-ok thing.

Just tossing some considerations out there for likening slapping hands for physical attack misbehaviors, in a context of lawyers trying to funnel deep pockets money by beating a drum likening it to tasing and choking.

And no, if the parents don’t want that, it should be respected.

[ReaderY]

In the post office case, the post office spent $60,000 making the loading dock more accessible as an alternative to installing an access ramp, in addition to all the lawyers’ fees litigating the case.

One wonders if there is an actual reason they don’t want to install an access ramp. Would installing a ramp render the building structurally unsound? If their lawyers had given a concrete reason why they thought meeting the request would be infeasible, rather than pouring so much money into supporting their claim she had workable alternatives, one wonders if they might have gotten better results. And we may still find out, perhaps in a few years, perhaps more if the lawyers have yet more procedural defenses they can bring now that this one has been knocked down.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Historical landmark?

Too close to a parking lot, other building, fire hydrant, or something similar?

Could be a zillion things, but something tells me it's mostly just petty bureaucrats finding lawyers to push their pettiness.

[John F. Carr]

I think this is it:

https://www.google.com/maps/@39.5244406,-85.7745707,3a,75y,179.22h,93.05t/data=!3m6!1e1!3m4!1slqydbdK_JrjPfawxz4BQug!2e0!7i16384!8i8192?entry=ttu

Generic mid-20th century rectangle with plenty of space around it. A wheelchair ramp would make an unattractive building a little more unattractive.

[jimc5499]

A typical wheelchair ramp has 6 feet of run for every 1 foot of rise. I could see the City complaining if the ramp would block the sidewalk right of way, but, the City is willing to fund the ramp. A properly designed and installed ramp should add nothing to the building's loading, so that shouldn't be an issue. I can't thing of any other reason than it's the Federal Government and they can do what they want.

[Dr. Ed 2]

I can: Indiana gets some snow and I'm guessing ice, and where the loading dock could have been under cover, the new ramp wouldn't have been.

And knowing the USPS, it could have been as simple as knowing there would be a major union fight over whose job it was to salt the ramp, while salting the steps had already been negotiated. Likewise maintenance of a loading dock ramp likely would come under a different rule than a HP ramp.

The Post Office *is* that way...

[jimc5499]

Good point. I forgot that aspect.

[John F. Carr]

The regulation I found says 1:12 maximum, or 12 feet of run per 1 foot of rise.

[jimc5499]

Depends on where you are. I've designed several 1:6 ramps that were approved. Most of the time I take advantage of the allotted area as long as I don't go steeper than 1:6. Most usually wind up at 1:10 to 1:14. Remember there is "recommended" and then there is "required".

[Dr. Ed 2]

There actually are ADA specifications, somewhere, and then most states have their own specs either as addendum to the building code or a free standing regulation. Then there are regs for public buildings and then those receiving certain Federal dollars and more.

Because all of this came in as patchwork between the post-Vietnam Rehab Act (1974?) and recent amendments to the 1990 ADA, there's no one universal standard. I've seen requirements that you have switchbacks and even level resting areas on a long straight run, with specs for both of those as well. It's complicated.

[Rev. Arthur L. Kirkland]

they can do what they want

Is it a "religious privilege" case?

[Jerry B.]

Probably didn’t want precedent, because then, they’d have to put wheelchair ramps on every post office.

[SRG2]

Think of all the times that states spend tens of thousands of dollars on hearings opposing a $500 DNA test. Government organisation don't care about this kind of analysis.

[John F. Carr]

The opinion says the Post Office's cost estimate was not part of the record because the Post Office considered it privileged.

I don't agree with the concurrence. The relevant statute says building constructed before 1968 are exempt from mandatory accessibility. The concurring judge thinks they have to be upgraded anyway because doing so is right and just.

[Dr. Ed 2]

Respectfully, you aren’t exactly right — they are required to provide accessible service, which can be someone coming out to provide curbside service. At least that’s what the 1990 laws said, I haven’t read all the revisions.

And then any alteration to the building over a certain amount would trigger ADA and require a ramp, and memory is that the Post Office comes under ADA either because it is considered part of the Executive Branch or something else.

All bets are off if the ramp was requested as a “reasonable accommodation” because then the judge *does* get to decide what is reasonable and just.

[Noscitur a sociis]

My dude, the summary itself explains that this isn’t an ADA case.

[mulched]

John Ross's impeccable Read More skills inexplicably abandon him, and he goes full Somin!

[John Ross]

D'oh! thanks

[Rev. Arthur L. Kirkland]

Maybe he was trying to push some of the bigoted content off the first page?

[SomeGuy 2]

Louisiana man serving 71-year sentence for manslaughter and aggravated attempted rape is up for a parole hearing in November 2016. The parole board votes to grant him parole, with a scheduled release date the following April. Following much negative press, the board then changes its mind and rescinds the parole days before the effective date

I think the ruling is right, once the decision is made no backsies. But A) Obviously nobody who voted to grant him parole in the first instance has any business on the parole board, B) Nothing like this can ever happen again, and C) This is why local journalism is important. The supposedly long sentences always get covered because it's easy-- according to the DA's press release, he was sentenced to 71 years! Rarely are grants of parole covered, the public only finds out about it when the guy then goes on to commit another crime. If you turn your back on the government for a second, it goes soft on crime. At least in this instance the local journalists did their job.

[BillyG]

I'm surprised the prosecutor allowed manslaughter. It was obviously murder. This guy lucked out. I agree with the ruling but damn the board messed up.

[SomeGuy 2]

I'm assuming the plea deal was supposed to be a quasi-life sentence in exchange for the state taking the death penalty off the table. Then, of course, the parole board was tripping over themselves to let him out as soon as he scrawled "I'M SORRY" on a cocktail napkin.

[David Nieporent]

I’m surprised the prosecutor allowed manslaughter. It was obviously murder.

He wasn't arrested/prosecuted until nine years after the crime. There may well have been proof issues at that late date.

[Dr. Ed 2]

He might even have been the wrong guy.

[Noscitur a sociis]

He the case was solved when they marched his DNA, you doofus.

[Idihax]

The problem is that parole boards tend to attract the type of people who think that parole should be granted on a regular basis. Parole should always be the exception, not the rule.

[SomeGuy 2]

I think this is a big part of it. More suitable people should get involved in local politics and sit on parole boards so they're not filled with softies.

[Idihax]

And women should categorically be excluded from boards and juries. They're too emotional

[Rev. Arthur L. Kirkland]

And women should categorically be excluded from boards and juries. They’re too emotional

Like this one?

Cue the clinger soundtrack.

[David Nieporent]

The problem is that parole boards tend to attract the type of people who think that parole should be granted on a regular basis.

That is certainly a thing that isn't true.

[Idihax]

Have you ever practiced in the area?

I didn't think so.

[Rev. Arthur L. Kirkland]

Are you a lawyer?

A college graduate?

A high school graduate?

Nonsense-teaching religious schools don't count, clinger.

[Idihax]

Yes, a non-practicing lawyer, and not from a crap school like Howard or Cooley like you probably graduated from.

[Rev. Arthur L. Kirkland]

A hard-right conservative bigot with a law degree?

You'll feel right at home at the Volokh Conspiracy.

[Idihax]

"Wyoming man wants to hand out campaign literature at polling places, but state law bans him from doing so, or even displaying a bumper sticker on his car, within 300 feet of an election-day polling place or 100 feet of an absentee polling place during the 45 days before an election. The trial court strikes down the 300-foot election-day buffer, but upholds the absentee buffer zone. Tenth Circuit: Strike that, reverse it. The 300-foot election-day buffer is fine, but the 100-foot, 45-day absentee buffer just might be unconstitutional."

I know the Supreme Court has held otherwise, but I've always disagreed with this line of reasoning. The state can constitutionally protect people against intimidating while voting. IT should not b allowed to use prior restraint in speech at the polls just in case someone might try to intimidate.

"Rogers County, Okla. sheriff deputy serving a protective order to take two children into custody shoots, kills the children's father. The deputy claims that the man became aggressive and violent and that he, fearing for his life, shot the man. The man's sister and mother were also at the home, but their accounts paint the deputy as the aggressor, punching and shooting a cussing but compliant man. Experts disagree about which story the evidence supports. District court: No constitutional violation here, so qualified immunity. Tenth Circuit (unpublished): A reasonable jury could find that the deputy used excessive force. Back down the case goes."

This should never have been a QI case. Assuming it should exist at all, QI should be for when everyone agrees on what the facts are, but the law is what is in question. When the facts are in dispute, QI should never be granted prior to an actual fact-finding.

[ReaderY]

Until fairly recently, courts considering whether to grant qualified immunity in a case against a police officer routinely only took into account objectively true facts as related by a sworn professional police officer, not self-serving uncorroborated statements made by a suspect plaintiff. Surely you’re not suggesting a police officer would mistate the facts?

[Life of Brian]

Most notably, she read the breathalyzer as showing an alcohol content of 0.22 (high!) when it actually reported 0.02 (low!)

Seems clear enough who was actually inebriated here.

[Dr. Ed 2]

Doesn't she have a supervisor?

[Krayt]

[Kazinski]

The original meaning of the Constitution would never find corporal punishment unconstitutional, not students, not prisoners, not misdemeanents, not felons.

I myself was victim of such "unconstitutional" violence in my school years, and much the better for it.

[Nige]

This new Speaker is really bringing out the Old Testament vibe on the right.

[apedad]

Except for your use of “I myself . . . . “

[ReaderY]

The Supreme Court upheld the constitutionality of corporal punishment in public schools in the 1970s. The decision is still good law.

Ingraham v. Wright, 430 US 651 (1977).

[NvEric]

The real crime in United States v. Zakhari is the police lied to create a crime and that the law allows it. Rational thought says no one was a minor, thus there was no crime. This case is a degeneracy of law, law enforcement, the judicial system, and the public at large - degeneracy ! regardless of Zakhari's obsessive desires.

[Nige]

[Noscitur a sociis]

I’m not sure I follow. The crime was attempting to persuade a minor to have sex, which is exactly what this guy did.

[David Nieporent]

Well, not “exactly,” no. He attempted to persuade an adult to have sex. As I noted above, as a matter of law, it doesn't matter. But as a factual matter, no minor was involved.

[Noscitur a sociis]

No, he attempted to persuade a minor to have sex. He failed, because the person he was talking to wasn’t a minor. But persuading a minor was very much what he was attempting to do.

[Krayt]

[Dr. Ed 2]

"MD-Ph.D. student strikes up an online conversation with a girl who looks to be in her late teens or early twenties but claims to be 15. After some gross and also suspicious conversation, he invites her over for sex."

Why isn't truth a defense here?

He'd seen a picture of her and could claim that he knew she was lying about her age. If men are responsible for knowing that the girl claiming to be 18 is actually only 15, then why can't they also benefit when the girl who is actually 21* is claiming to be only 18?

Of course, I don't understand why perverts don't invite the girls over for something innocent and then if it turns out to be a cop, what can the cop say? He invited me over to help me with my Algebra?

*21 minimum age for police officer in most jurisdictions.

[John F. Carr]

The way the law is written an attempt to seduce a minor online is punished the same as a successful seduction. One can be convicted of attempting to commit a crime even if it was impossible to succeed.

I think he's allowed to tell his side to the jury and he should be acquitted if jurors believe he believed she was 18. I would believe him, not because I believe him but because I am tired of the government saving us from government plots.

[David Nieporent]

Why isn’t truth a defense here?

He was charged with attempt to commit multiple crimes. Factual impossibility is not a defense to attempt.

If you shoot someone who you think is sleeping, but is actually already dead, you can't be guilty of murder, but you can be guilty of attempted murder. And if you try to have sex with a 22-year old who you think is 15, you can't be charged with having sex with a 15-year old, but you can be charged with attempting to have sex with a 15-year old.

Of course, I don’t understand why perverts don’t invite the girls over for something innocent and then if it turns out to be a cop, what can the cop say? He invited me over to help me with my Algebra?

Um, because the cop-pretending-to-be-a-girl won't come over if that's the invite. The people who insist (no matter how much enticement the cops provide) on only asking for something innocent don't get arrested in the first place.

[Noscitur a sociis]

Guess we can add child molestation to the the list of crimes Dr. Ed endorses.

I promise some day I’ll stop being surprised.

[Dr. Ed 2]

It's gotta be a child, stupid.

[John F. Carr]

YouTube made me watch an ad before I could watch the lawyer trying to walk back his statement about licensing journalists. Are Texas court videos monetized? The judge pressed him further trying to find what percentage of speech vs. non-speech would allow licensing of a profession.

[Dr. Ed 2]

"Ladies and gentlemen of the jury, in order to convict my client you have to believe that THAT WOMAN is only 15 years old. Not that she gets sexual kicks from dressing up as a child, but that she really IS a child..."

[David Nieporent]

Of course, that is not an accurate statement of the law, and the attorney isn't supposed to be instructing the jury on the law at all.

[Dr. Ed 2]

Remember "if the glove does not fit, you must acquit"?

[Kenneth Almquist]

Am I the only one who thinks that the Judge Terrence Kern's opinion in the Rogers County shooting case, which was overruled by the the 10th Circuit, demonstrates outright incompetence by the judge?

Kern's opinion: https://www.docketalarm.com/cases/Oklahoma_Northern_District_Court/4--20-cv-00598/Ibarra_v._Lee_et_al/72/

1. The defense asked Kern to reject declarations by plaintiff's main witnesses. Kern failed to rule on this motion, leaving it unclear what the factual record relevant to summary judgement was.

2. Plaintiffs and defendants disagree wildly on what transpired. The police officer claims that the purported victim assaulted him (rather than the other way around), and that the police officer shot in self defense. This may be true, but its not what the plaintiffs and the other witnesses say happened, yet Kern’s list of “undisputed facts” essentially mirrors the police officer's account.

Footnote 3 of Kern's opinion states that the many of plaintiff's responses to defendant’s proposed list of undisputed facts failed to comply with Local Rule 56.1(c). So, as best I can make out, Kern is treating obviously disputed facts as undisputed because counsel failed to comply with a local rule. What sort of judge buries the reason for dismissing a case in a footnote?

That's assuming that there was a failure to comply. The appellate court responds with a footnote of it's own: “contrary to this footnote, Ms. Ibarra provided a numbered response to Deputy Lee’s statement of facts supported by record citations.... Also, the district court did not specify what statements she made that lacked support in the record.”

3. Kern dismisses the case without ever addressing plaintiff’s claims under state law. The appellate court observes that, “The court’s Opinion and Order is not clear as to whether the court declined to exercise supplemental jurisdiction over the state law claims, dismissed them on their merits, or simply didn’t consider them at all.”

The job of a judge is to make rulings and explain them. To steal a phrase from Wolfgang Pauli, Kern's opinion “isn't right. It isn't even wrong.”

[SomeGuy 2]

Footnote 3 of Kern’s opinion states that the many of plaintiff’s responses to defendant’s proposed list of undisputed facts failed to comply with Local Rule 56.1(c). So, as best I can make out, Kern is treating obviously disputed facts as undisputed because counsel failed to comply with a local rule. What sort of judge buries the reason for dismissing a case in a footnote?

My periodic rant about local rules or, worse, judge-specific rules. The idea that every court is a bespoke unicorn and you have to practice differently in front of it is absurd. For those of us that practice nationally, it's a scourge. It's one thing if it's purely administrative stuff, but courts go hugely overboard and reach into the substantive. Worse, sometimes there's local rules AND standing orders which cover different topics. It's a mess. Rule appears to be:

Response Brief. The response brief in opposition to a motion for summary judgment (or partial summary judgment) shall begin with a section responding, by correspondingly numbered paragraph, to the facts that the movant contends are not in dispute and shall state any fact that is disputed. All material facts set forth in the statement of the material facts of the movant shall be deemed admitted for the purpose of summary judgment unless specifically controverted by the statement of material facts of the opposing party, using the procedures set forth in this rule. Separately, the brief in opposition may, in concise, numbered paragraphs, state any additional facts the nonmovant contends preclude judgment as a matter of law.

That might be a good idea, formatting wise, but failing to comply with it shouldn't be a waiver. If it's so important, propose to add it to the federal rules.

[David Nieporent]

The SDNY/EDNY local rule is better; it requires the moving party's statement of undisputed facts and the opposing party's response to be separate documents rather than sections of the respective parties' briefs.

It's a good rule. It is not about "formatting," as though it were about aesthetics; it saves both the courts and the litigants from having to hunt through a massive record to figure out what Ythe facts are alleged to be and what the support (if any) for those facts is. That having been said, the 10th Circuit is obviously correct that a judge can't just say "You didn't do it right" without itemizing the facts that the court is deeming admitted or unsupported.

[Kenneth Almquist]

So the rule makes sense, but if a judge is going to dismiss a case based on a violation of a local rule, it seems to me that the judge owns litigants and the public at minimum:

1) A justification for the judge's conclusion that the rule was violated.
2) Some explanation of why the rule is important enough to justify dismissing the case, given that it hasn't been incorporated into the federal rules.
3) Some explanation of why the judge didn't direct the litigant to amend the filing to bring in into compliance with the rule, rather than dismissing the case.

[Idihax]

https://edition.cnn.com/2023/10/27/europe/mum-evicts-sons-court-italy-intl-scli/index.html

These two look like prime candidates for asylum and membership into the Democrat Party. Even better if they're gay, and can help the Rev. Kirkland with his trysts.

[A nerdy Fred]

How could a court have concluded that skull fractures were reasonable force? It took just seconds to find this about baton training standards: "Modern systems strictly prohibit hitting the skull, sternum, spine, or groin unless such an attack is conducted in defense of life, with many jurisdictions considering this deadly force."

[David Welker]

Parole should not be allowed for the Louisiana man. He kidnapped a 21-year old woman who was a clerk at Circle-K, took her to some forest, raped her, and then killed her by shooting her with a 22-caliber in the left eye.

Horrific.

[ReaderY]

Isn’t what IJ is calling “physical abuse” simply “corporal punishment” upheld by the Supreme Court in Ingraham v. Wright?