Short Circuit: A Roundup of Recent Federal Court Decisions

Gift cards, strong medicine, and cloud search warrants.

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

New cert petition: If the gov't wants to restrict speech based on its content, it bears the burden to show, among other things, why the restriction is necessary. But earlier this year, the Second Circuit upheld New York's restrictions on out-of-state therapists providing teletherapy to N.Y. residents without holding the state to its burden. The decision deepened not one, but two, circuit splits on important First Amendment questions, so we say the Supreme Court should take a look. Click here to learn more.

At Short Circuit, we're thinking of the Roman Empire. Well, at least what happened after it fell. That's because Duke's Judicature just published a piece by IJ's Matt Liles and Anthony Sanders on the history of the phrase "en banc," from its origins in the post-apocalyptic wilds of Gaul through modern-day federal courts. They conclude that "en banc" has no single correct pronunciation. Say it however you want.

• It's a prosecutor-v.-prosecutor showdown in a dispute over whether the Department of Justice must turn documents over to the district attorney of Hampden County, Mass. concerning the DOJ's investigation of police misconduct within the Springfield Police Department. District attorney: I need that info because some of it might count as exculpatory evidence in my criminal prosecutions. First Circuit: The DOJ didn't abuse its discretion in saying the documents can be withheld under the work-product and law-enforcement privileges.
• An internet-communication platform in Puerto Rico sues a grab-bag of federal prosecutors, FBI agents, and employees of two competitors. Allegations: Our competitors conspired with the feds to search our offices and give these companies access to our confidential trade secrets. That violated our Fourth Amendment rights; we should get damages under the Bivens doctrine. First Circuit: Is your name Webster Bivens? No? Then you're out of luck.
• The day after gas station/convenience store chain Wawa, Inc., announces that hackers obtained financial data for around 22 million customers, enterprising attorneys file class action lawsuits. To settle, the plaintiff lawyers and Wawa come to a $9 mil deal, with most of the compensation being . . . gift cards. Only $2.9 mil is claimed, and the plaintiff attorneys get $3.2 mil. Was that reasonable under Rule 23(h)? Third Circuit: The rule incorporates a historical reasonableness standard, and this ain't it. Remanded to start over.
• "Judicial immunity is strong medicine." But, says the Fourth Circuit, not strong enough to protect a Raleigh County, W.Va. family court judge who forced her way into a man's house without a warrant (on pain of arrest), forbade him to record (on pain of arrest), and (in bare feet) directed a search of the house, allowing the man's ex-wife and her lawyer to take disputed items like DVDs, pictures, and an umbrella stand. (This is an IJ case.)
• Anonymous 911 caller: "I shot my girlfriend with a 9mm." Abilene, Tex. officers bust into an apartment, where they find the plaintiff and a pellet gun—but no girlfriend or 9mm. Officers post-search: We're keeping you under arrest until we sort out who made the false 911 report. Fifth Circuit: No QI for post-search detention. "[I]t would be nonsensical for someone to file a false report on himself."
•  The governor of Texas issues an executive order prohibiting private individuals from transporting "migrants who were previously detained or subject to expulsion." Folks who don't like this sue him. Fifth Circuit: The guy may have made this law, but he doesn't enforce it. Sovereign immunity. Dissent: All the plaintiffs need at this stage is a scintilla of enforcement.
• Publicly traded companies often buy back their own stock. Sometimes they do it because they think the stock is undervalued, but other times they might do it to pump up the value and trigger extra compensation for executives. The SEC thinks investors should know which of those it is, so after notice and comment it orders companies that buy back their own stock to file public disclosures stating the reason. The U.S. Chamber of Commerce and others challenge the rule. Fifth Circuit: No First Amendment problem here. But the agency didn't take comments about the cost/benefit of the proposal seriously enough, so it's back to the drawing board.
• The Sixth Circuit has a growing body of law specifically about where plaintiffs can sue over Kathy Griffin's tweets. Who knew? Here, she summoned a Twitter mob to successfully get a Tennessee executive fired after he lost his temper (she thought homophobically) at high school promgoers disrupting his dinner. Can he sue Griffin (a Californian) in Tennessee for torts related to her Twitter activity? Indeed he can, because Griffin tagged his Tennessee employer and her tweets emphasized his Tennessee residence, so that targeting of Tennessee gives the state's courts personal jurisdiction over the claims.
• Allegation: Protesters protesting the Dakota Access Pipeline in North Dakota are injured when police deployed pepper spray, bean bags, water, and rubber bullets against the crowd. Unreasonable seizures? Eighth Circuit: Officers were not on notice that their actions could have violated the Constitution; we have repeatedly recognized that the law is unclear about whether the use of force to disperse a crowd is a seizure.
• In 2021, Arizona banned abortions performed "solely because of a genetic abnormality." A group of doctors (who would otherwise be performing more abortions) challenged the law as unconstitutionally vague. District court: Dobbs eliminated any right to abortion, so I don't see how you can have standing at all. Ninth Circuit: Remanded! We're not weighing in on the merits, but these doctors are obviously affected enough to sue.
• California man attends the Hmong New Year Festival at the state fairgrounds in Sacramento, hoping to distribute religious tokens. He's told he can distribute them outside the festival, but not inside. Undeterred, he buys a ticket, enters, distributes tokens, and is duly removed. He sues, arguing that the fairgrounds are a traditional public forum. Ninth Circuit: The fairgrounds were surrounded by a fence, and you had to buy a ticket for admission, neither of which is typical of traditional public fora.
• Former attendees of a Wyoming treatment program for troubled adolescents file a class action, alleging that they were basically kidnapped and forced into hard labor (the program was housed at a ranch). The district court refuses to certify the class, concluding that everyone's claims are just too different. Tenth Circuit: But the district court's standards were too strict. Take another look at that.
• Seeking to improve race relations, Miami Beach officials commission artists to produce works for a curated exhibit that the city hopes will "spark[] crucial conversations about inclusion, blackness, and relationships." Artist: Okay, here's my painting of a Haitian-American man shot to death by Miami police in 2011. City: We don't want to spark that particular conversation, so no thank you. Eleventh Circuit: Which is just fine. The city's decisions about what art to purchase and display are gov't speech, so the First Amendment doesn't apply.
• Florida man loses a big poker game and allegedly uses his cellphone to arrange a violent robbery of the winners. Police get a warrant for essentially all his iCloud data without any time limitation, even though the last backup was 12 hours before the poker game. They find a month-old photo of the man with a gun. Yikes! Based on that image, he's charged with being a felon in possession. Suppress the evidence? Eleventh Circuit: He's got a decent case that the search warrant was too broad, but in this newfangled world of tech, the law is sufficiently unsettled that the officers were entitled to rely on the warrant in good faith. Concurrence: Going forward, cloud search warrants really should specify particular timeframes, subject matters, and categories of data.
• Indiana's Constitution provides that "in all civil cases, the right of trial by jury shall remain inviolate." But do defendants in civil forfeiture proceedings—here, the owner of $2,435 in cash that the state is seeking to take—have a right to a trial by jury? Indiana Supreme Court: They do indeed! And the state's argument to the contrary would "effectively deprive Hoosiers of a jury trial when filing suit under any modern statutory scheme." (This is an IJ case.)
• And in amicus brief news, this week IJ urged the Oregon Supreme Court to affirm that it would violate double jeopardy to use civil forfeiture to take a sexagenarian's home after the resolution of her criminal case (which resulted in a guilty plea, prison time, and the criminal forfeiture of $50k.)
• And in cert denial news, this week the Supreme Court decided not to rehear King v. Brownback, though its previous ruling in the case left a critical question unanswered: Does the FTCA's judgment bar preclude consideration of other claims brought in the same action? This means that two federal task force officers who beat and choked an innocent college student until he was unconscious (after mistaking him for a fugitive)—and then had him jailed and prosecuted on bogus charges—will not face any accountability. Justice Sotomayor wrote separately, criticizing the denial.
• And in more denial news, SCOTX has declined to review a South Padre Island ordinance that requires food trucks to obtain the blessing of a restaurant before they can operate in the city. Justice Young wrote separately, noting that that is so obviously unconstitutional that "the Court would have little ability to develop the law" if it had taken up the case. (This is an IJ case. And here is a sparkling law review article on economic liberty's deep roots in Texas.)

When a baby is born in the U.S., blood samples are taken and tested for various maladies. But in New Jersey, health officials retain and store the samples—without any parental notice—for 23 years. There are no restrictions on how the samples can be used, and in the past they have been given (without a warrant) to law enforcement. "It's incredibly misleading for the state to tell parents they are simply drawing blood from their babies to test for diseases when it could be sold to third parties or used by other government agencies to build invasive databases or registries," said IJ Attorney Brian Morris. So this week, IJ filed a class action demanding that the state either destroy the samples after testing or obtain consent from parents to allow for specific uses of the samples. Click here to learn more.

Comments

[bernard11]

I don't understand.

SCOTX has declined to review a South Padre Island ordinance that requires food trucks to obtain the blessing of a restaurant before they can operate in the city. Justice Young wrote separately, noting that that is so obviously unconstitutional that "the Court would have little ability to develop the law" if it had taken up the case.

So they are not taking the case because the ordinance is blatantly unconstitutional, even though that means the ordinance stands?

I thought the job of the court was to settle disputes, and that "developing the law" was an outgrowth of that task.

No doubt I missed something. What is it?

[Armchair]

The link to the dissent is useful...

https://ij.org/wp-content/uploads/2023/11/220499c.pdf

Among other things, if the court thinks a law is unconstitutional, but the rational for it isn't actually brought up by the plaintiffs, the court can't address it.

[tkamenick]

More generally, too, highest courts will frequently say they aren't "error correcting" courts, and that's what intermediate appellate courts are for. They basically say they're too busy to fix all the problems in lower courts unless there's a broader opportunity to develop the law in a case.

[Bubba Jones]

Ok but having taken the time to write this rejection why not remand for the lower court to fix it?

[KenveeB]

Part of the problem is they didn't raise what Justice Young thinks is the winning argument, so he doesn't think they'll be able to properly address the case.

Second, the part quoted was saying basically that if they only address what was raised, it's likely going to be confusing to all other litigants in the state looking at that issue because they won't be able to formulate a decent test for use in all cases because this one is so basic.

Finally there's an exhaustion issue. The two food trucks suing didn't actually properly apply for and be denied permits. (One didn't apply, one applied with mistakes.) Justice Young wants the local process to play out. (Now armed with the fact that at least one judge thinks their policy is blatantly unconstitutional.)

[loki13]

"Seeking to improve race relations, Miami Beach officials commission artists to produce works for a curated exhibit that the city hopes will 'spark[] crucial conversations about inclusion, blackness, and relationships.' Artist: Okay, here's my painting of a Haitian-American man shot to death by Miami police in 2011. City: We don't want to spark that particular conversation, so no thank you. "

Okay, I laughed.

[Commenter_XY]

Me too! That is why Short Circuit is my absolute FAVE here at VC! Love the snappy summaries. And I laugh every week.

[Jerry B.]

“Anonymous 911 caller: "I shot my girlfriend with a 9mm." Abilene, Tex. officers bust into an apartment, where they find the plaintiff and a pellet gun—but no girlfriend or 9mm”

Sounds like attempted suicide by cop.

[wnoise]

Or murder by cop, disguised as suicide by cop.

[Archibald Tuttle]

It also sounds like so-called swatting.

[Jason Cavanaugh]

If the words matter, they found the plaintiff and a pellet gun - not the plaintiff with a pellet gun.

[Rev. Arthur L. Kirkland]

Former attendees of a Wyoming treatment program for troubled adolescents file a class action, alleging that they were basically kidnapped and forced into hard labor (the program was housed at a ranch).

Any guesses on whether the "treatment" program was superstition-based?

[SMP0328]

From the decision:

Trinity advertised itself as a treatment center that “challenge[d] young women to create healthier lives and make appropriate choices which honor God, self, and others” in a “wilderness ranch setting” using “animal assisted therapy and [] individual care plan[s].”

It appears religion was part of the treatment, but not the only part.

[Rev. Arthur L. Kirkland]

So plenty of God at "Trinity Teen Solutions," but no training in mental health treatment.

Who said Wyoming was a shambling backwater?

[Religion and Politics, my life]

But another illogical statement from the Rev, you imply that they didn't know what you know and that that is deception. But what if they did ???

[Currentsitguy]

Careful with that. Wyoming has the highest per capita percentage of atheists in the county. One of the reason we want to retire there, aside from the amazing scenery, of course.

[Rev. Arthur L. Kirkland]

Wyoming has more than enough right-wing fairy tale fans to make an entire state a can’t-keep-up backwater.

[Currentsitguy]

I won't argue the point people seem to be gravitating to the extremes.

[Religion and Politics, my life]

As if what you didn't believe implied something about what you do believe !! Stupid, yes, please move there

[SomeGuy 2]

Seeking to improve race relations, Miami Beach officials commission artists to produce works for a curated exhibit that the city hopes will "spark[] crucial conversations about inclusion, blackness, and relationships." Artist: Okay, here's my painting of a Haitian-American man shot to death by Miami police in 2011. City: We don't want to spark that particular conversation, so no thank you. Eleventh Circuit: Which is just fine. The city's decisions about what art to purchase and display are gov't speech, so the First Amendment doesn't apply.

California man attends the Hmong New Year Festival at the state fairgrounds in Sacramento, hoping to distribute religious tokens. He's told he can distribute them outside the festival, but not inside. Undeterred, he buys a ticket, enters, distributes tokens, and is duly removed. He sues, arguing that the fairgrounds are a traditional public forum.

Level of entitlement in both cases is off the charts-- artist got paid for the painting, the city just didn't feel like displaying it. Which is how it always goes when somebody sells a painting, the choice to display or not display goes to the buyer. The agreement they signed makes this even more clear.

And the less said about the festivalgoer the better. It's somebody else's festival. If you want to hand out religious tokens, create your own festival and do whatever you like.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

"And the less said about the festivalgoer the better."

Indeed.

[not guilty]

The Goldston ruling in the Fourth Circuit is encouraging. I think it is noteworthy that Mr. Gibson was appearing pro se in the post-divorce proceeding. Too many family court judges run their courtrooms as fiefdoms, accountable to no one. The lawyers who regularly appear before them are often too timid to challenge them.

[Currentsitguy]

In the WV case he should have never acquiesced and forced them to arrest him. It would have greatly enhanced the settlement amount.

Being me, I would have made cash register KACHING! noises the whole time they were doing it and maybe speculated what I was going to do with the judge's house after I took it.

[Jerry B.]

"It would have greatly enhanced the settlement amount."

Or ended up, "shot while resisting arrest".

[Currentsitguy]

You can't be charged with resisting an unlawful arrest and shooting a non threatening person is murder in any book.

[Harvey Mosley]

Maybe, but one of the cops would probably have seen him “reaching for his waistband” and felt threatened. After blowing him away they would all be wondering why an unarmed man would reach for his waistband.

[David Nieporent]

You can’t be charged with resisting an unlawful arrest

I am not a WV lawyer, so perhaps your comment is correct about this particular case, but in most states you can in fact be charged with resisting an unlawful arrest.

[Davy C]

I know you can in Wisconsin.

[David Nieporent]

In the WV case he should have never acquiesced and forced them to arrest him. It would have greatly enhanced the settlement amount.

You know how the left always likes to prattle about "privilege"? What they usually mean is "I win and everything you say or do is invalid because you're white/male/straight/etc." But your comment really reflects privilege. A middle class person — the kind who has the ability to spend large amounts of time commenting on a blog — gets arrested, he calls his lawyer, or calls a family member to hire a lawyer, the lawyer appears on his behalf, gets him bail, and he's out in a few hours or a day or two at worst, and then lets the legal system play out while he goes on about his life.

A poor person — this person was proceeding pro se in his divorce proceeding, so we can infer he's not Scrooge McDuck diving into a pile of money — does not have the same privilege. A poor person doesn't know how to navigate the system, or know someone who does, so he's not going to get favorable bail set. He may well not be able to make bail at all, or it may take him (and any family members he might have) time to come up with the money — time during which he's sitting in jail. And then he risks losing his job because he's not showing up to work. And you know what happens when money's not coming in? He can't pay rent, or his mortgage. Or make car payments. Oh, and what do you think it does to his child custody situation that he's been arrested? (One presumes, given his ex-wife's involvement in all this, that she's not likely to be particularly sympathetic.) The pressure to plead guilty to get of jail — at which point he can't sue for the arrest at all! — is enormous.

And your notion that there's some kind of massive payday at the end of the rainbow is also fantastical. Assuming he can successfully navigate to the end of the process — remember, this incident happened 3½ years ago, and he still hasn't gotten anywhere close to a judgment in his favor, let alone collecting on it, even though the judge's conduct was so bad she was punished for it — you think you get a big reward for a simple nonviolent arrest?

In short, you're a blustering idiot. No, do not ever deliberately get yourself arrested just to prove a point. It wouldn’t even have accomplished anything! The search would still have gone forward — just with him in handcuffs.

[CindyF]

Also today, the Seventh Circuit Overturns Injunction Against Illinois "Assault Weapons Ban", Says AR-15s Aren't Protected Arms.

https://bearingarms.com/camedwards/2023/11/03/seventh-circuit-overturns-injunction-against-illinois-assault-weapons-ban-says-ar-15s-arent-protected-arms-n76924

"Coming directly to the question whether the weapons and feeding devices covered by the challenged legislation enjoy Second Amendment protection, at the first step of the Bruen analysis, we conclude that the answer is no. We come to this conclusion because these assault weapons and high-capacity magazines are much more like machineguns and militarygrade weaponry than they are like the many different types of firearms that are used for individual self-defense (or so the legislature was entitled to conclude). Indeed, the AR-15 is almost the same gun as the M16 machinegun. The only meaningful distinction, as we already have noted, is that the AR-15 has only semiautomatic capability (unless the user takes advantage of some simple modifications that essentially make it fully automatic), while the M16 operates both ways. Both weapons share the same core design, and both rely on the same patented operating system."

Would it be too much to ask that judges who rule on firearms cases know at least a little bit about guns?

[Dave_A]

It would have been nice for the author of that piece to know something about the NFA.

AR-15 'auto sears' *are* machine guns under the NFA, in the form of a 'conversion device'.

So the whole thing about 'well, if neither of these are regulated, then machine guns are unregulated' is nonsense.

[mse326]

I know very little about firearms, what part of that is factually incorrect. I have reservations about the legal conclusion under the law, but if there is a factual error that is different.

[Bill R]

https://web.archive.org/web/20230330060200/http://www.assaultweapon.info/ is a short and informative introduction.

[Bored Lawyer]

"District attorney: I need that info because some of it might count as exculpatory evidence in my criminal prosecutions."

Does the Due Process Clause require him to obtain information from another branch of Govt? I did not think Brady v. Maryland requires the prosecution to do that.
For that matter, any exculpatory evidence not in the possession of the prosecution, but a third party. Is there some obligation on the prosecution to use legal process to collect it?
Certainly now that he has tried, and been rejected by the courts, I think his obligation has been fulfilled. The defense can always make its own efforts.

[Alan Vanneman]

They conclude that "en banc" has no single correct pronunciation. Say it however you want.

In fact, there is no "correct" pronunciation of any word or phrase. Thre are, however, "accepted" pronunciations. If there's a professor, partner, judge, client, etc. you want to impress, say it their way. You'll be glad you did.