Short Circuit: A Roundup of Recent Federal Court Decisions

Brady violations, dual enrollments, and a West Coast conviction.

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

• Transgender woman is serving a 75-year prison term for murder, assault, and burglary. A prison guard repeatedly presses her into giving sexual favors in 2011. He is then convicted. In 2018—after the statute of limitations has lapsed—she files a civil rights suit. Prisoner: Equitable tolling due to the abuse and fear of retaliation. District court: Let's hold an evidentiary hearing! And denied. Second Circuit (over a dissent): The hearing did not violate the prisoner's Seventh Amendment rights. And equitable tolling doesn't apply.
• Two men were convicted for their roles in a New Orleans armed robbery of an armored truck that left a guard dead. But the feds failed to disclose key info about a cooperating, testifying witness until after trial began—and even then didn't disclose everything. Fifth Circuit: That later info undermines confidence in the verdict of one of the men, who might be able to get another trial. (Doesn't help the other.)
• Power company says it can't make a living these days under a federally mandated price cap. It petitions FERC for relief, which is granted. While the matter is on appeal, the new Chair requests a voluntary remand without asking for permission from the other commissioners. Meanwhile, the Commission's composition changes and it then nixes the price cap relief. Did the Chair have unilateral power to ask for a remand? Sixth Circuit: The statute says "business" requires a quorum of commissioners and a remand request is "business." Partial dissent: This aggression cannot stand. The milquetoast partial vacatur of the majority ain't enough.
• Thanks to the work of enterprising chemists, methamphetamine has gotten more potent, which—this Michigan criminal defendant suggests—wrongly results in low-level dealers being treated like kingpins. Sixth Circuit: Too bad he waived that argument, or at least invited error by not pressing it more forcefully at sentencing. Concurrence: The government waived waiver (but this guy loses anyway).
• The Individuals with Disabilities Education Act gives federal funds to school districts that provide a "free appropriate public education" to all children with disabilities. But the requirement does not extend to post-secondary education. What to do, then, with dual-credit, dual-enrollment courses at state universities or junior colleges? The Sixth Circuit, in dual rulings, holds they aren't covered.
• Kansas City, Mo. police search a tow yard, where they seize business records, recover 16 stolen vehicles, and shoot the owner's dog. Two months later, an officer asks the tow yard owner to do him a solid and release a car owned by a relative; when the owner refuses, the officer says "it's game on." When a recording of the call is released to local media, prosecutors decide to drop the 31 counts of forgery stemming from the search. The owner sues, and the district court rejects all 17 state and federal claims. Eighth Circuit: No error here.
• Midwesterners love to debate what is in the Midwest, including whether and which Plains states are Midwestern. While Midwest purists and maximalists may disagree about where Nebraska fits, they would all agree that the Cornhusker State is definitely not on the West Coast. So why is this former Nebraska congressman—convicted for lying to the FBI in Lincoln and D.C.—appealing in the Ninth Circuit? The judges are as flummoxed as we are. Conviction vacated for violating the Constitution's Venue and Vicinage Clauses.

New case! Last year, a SWAT team tore up Amy Hadley's home in South Bend, Ind., searching for a fugitive who was not there, never had been, and had no connection to her family. Officials have refused to pay for the damage. An uncompensated taking in violation of the Fifth Amendment or Article 1, Section 21 of the Indiana Constitution? Or a violation of Article 1, Section 12, which provides that "every person, for injury done to him in his person, property, or reputation, shall have remedy by due course of law"? No doubt all three. Click here to learn more.

Comments

[Mr. Bumble]

Whenever I read these OPs all I can think of is Mr. Bumble's famous quote concerning the law.

[ObviouslyNotSpam]

I can't.

[y81]

It would be more logical for state insurance regulators to require that homeowners' policies cover damage from police activity, to the extent that they don't already, at least where the police activity, whether or not justified, is not the consequence of the homeowner's malfeasance. (The article isn't clear on what the issues are there, and I'm not an expert on insurance law).

[Brett Bellmore]

So, the police do a taking against a citizen, and make them whole by means of a taking against the insurance company?

[BillyG]

Not the insurance company, against the citizen again. Insurance premiums pay the claims.

[Krayt]

Requiring insurance to pay for government goofs doesn't seem to cover any amendment or section requirements of government. Is government paying the premium delta? What about people with no homeowners' insurance?

For that matter, even if a government hired and paid an insurance company to cover goofs, if there were too many goofs and the company had to dig into its own pocket, I can still see there being problems with constitutional requirements.

The government could self-insure, of course, being its own deep pockets, with an insurance company handling the paperwork, I suppose, the way large companies do with their own medical or car insurance.

[LawTalkingGuy]

The government should be liable for a takings or under some other theory. But if courts aren’t going to allow that, and legislatures are only willing to have a coverage mandate rather than a cause of action or state funded insurance I’d rather have that than no remedy whatsoever.

[TwelveInchPianist]

Wouldn't you just have the same case with an insurance company as plaintiff?

[Absaroka]

I'll leave the legal issues to those more qualified, but as ethical matter, the city council should say 'our police department trashed innocent Betty's house? Well, OK, we'll make Betty whole, while pointing out we're under no obligation to do so'.

You can do the right thing even when the law doesn't require it.

[ObviouslyNotSpam]

With their own money, or with their taxpayers' money?

[Absaroka]

With the taxpayers money, like any other act by municipal employees. If the city school bus creases your fender, the city pays.

You can make the argument that the driver should be made to pay for both your fender and the bus fender. That would mean rational bus drivers, and other city employees, would insist on wages sufficient to pay for the requisite insurance. Most governments find it more economical to assume the liability themselves and self insure.

You could change liability law in general, so that employers aren't liable for the acts of their employees. But that's not how things are now.

[bernard11]

It would be more logical for state insurance regulators to require that homeowners’ policies cover damage from police activity,

This is nonsensical. The mandated coverage drives up the insurance cost, so the homeowner ends up paying the expected cost of a taking (the cost of an actual taking times the probability it happens to him), plus some more. That's not remotely "compensation" for the damage.

[tkamenick]

While basically correct, the same is true for taxes paying for QI claims. Which is to say, this really isn't a reason not to do this, because the overall point is that a larger group of people should bear the burden of government screwing up.

[nonzenze]

In practice, the number of homes destroyed by police activity is minuscule and so the rise in premiums would be negligible.

Meanwhile, I think it's understood that police do sometimes have to act with force -- at least after other methods have been tried -- and that overall this is a public good.

[BillyG]

If the FBI ever wants to talk to you. Either say nothing, or begin everything with "To the best of my recollection".

[Mr. Bumble]

Better to say nothing!

[Noscitur a sociis]

How do you think the latter course would have helped the defendant in this case?

[BillyG]

Maybe nothing. FBI set out to get him. At least it would record memory is imperfect. Especially for an unproven accusation from Months before.

[Dr. Ed 2]

I've always thought about pulling a beer out of the refrigerator, downing it in front of the FBI -- and having them document that.

Then you "have consumed alcohol" and wouldn't that serve as a defense against any misstatement?

[Noscitur a sociis]

No.

Thanks for joining us for another edition of trivially simple answers to profoundly stupid questions.

[Kleppe]

"Transgender woman" "her"

Why are you delegating your speech decisions to mentally ill convicts?

[LawTalkingGuy]

The same reason that when someone says their name is Steve and you call them that instead of Steven?

[Toranth]

Even though you have their ID in hand, which shows that they are actually named Frank, and as part of demanding you call them "Steve", they also demand access to the Steve-only sections of the building, to include Steve-bathrooms and Steve-showers? Oh, and you also need to change your language usage to the approved Steve-terms, rather than the language's actual Frank-terms that are correct?

Why is it that people like you always pretend that courtesy is always something owed to someone that claims to be transgender, and no transgender person ever owes any courtesy to anyone else?

[LawTalkingGuy]

Courtesy is owed to everyone by everyone. But voluntarily excluding oneself from public life isn’t an act of courtesy for the comfort of others and it’s in-courteous to demand or compel that from others for comfort reasons. Excluding black people from pools and bathrooms was not courteous, even though white people felt much more at ease with them not around! You also can’t exclude people with amputated limbs, terrible scaring, tattoos, or Tourette’s syndrome even though these characteristics often cause discomfort to others as well.

https://www.foxnews.com/story/illinois-woman-born-with-tiny-arms-denied-mcdonalds-service-for-using-feet.amp

https://www.usatoday.com/story/news/nation/2015/07/30/woman-tourettes-sues-walmart-after-being-banned-outbursts/30911953/

It’s obvious who lacked courtesy in these cases.
So too with trans people. Discomfort that arises from difference is not a license to be a dick.

[Toranth]

The fact that you need to stretch so far in a failed attempt to defend your position just shows how weak it is - and how you know it. Desperate attempts to scream "Just like racism!" may make you feel good, but to people capable of logical thought, they just make you look like an idiot.

Someone with missing or unusable arms is reality. A man that declares that they are actually a woman, and must be treated as such including unfettered access to women's private spaces, is delusion.

You may want to be O'Brien, but sorry, buddy - there are only four fingers.

[LawTalkingGuy]

If it’s a delusion then it’s a mental illness and excluding the mentally ill from public space is also discourteous and a dick move!

“The fact that you need to stretch so far in a failed attempt to defend your position just shows how weak it is – and how you know it. Desperate attempts to scream “Just like racism!” may make you feel good, but to people capable of logical thought, they just make you look like an idiot.”

Nah. You’re just an asshole.

[Toranth]

No one is "excluding people from the public space". Men are being excluded from women's private spaces, and vice versa. And they're being excluded because, despite their delusions, men aren't women. When you try to shift the topic to actual disabilities rather than beliefs you are just deflecting and distracting from your inability to defend your own position.
You would never insist that it is "just courteous" or "not being a dick" to force non-Muslim women to wear hijabs or to punish someone for using their left hand.

Really, you make such great arguments. You first resort to accusations of racism and calling people "a dick" because they insist upon treating reality as reality. But sure, I'm the "asshole" here.
Have you ever considered being courteous to people that disagree with you? Rather than making accusations of racism from the get go. It's a great way to not be a discourteous asshole.
Not that you've ever shown any sign of being able to manage that in the past.

[LawTalkingGuy]

“But sure, I’m the “asshole” here.”

Yes. Exactly. Try purposely misgendering someone at work or at a restaurant or store or something and see who everyone thinks is the asshole. Report back on the results.

“Have you ever considered being courteous to people that disagree with you?”

I was. I made relevant comparisons
so called me an idiot and compared me to 1984. So why should
I extend you any courtesy by refraining from labeling you an asshole when you so clearly behave like one? And the race example was because I assumed you weren’t racist and might be able to empathize and then identify how courtesy and comfort can be used as excuses for discrimination. I still don’t think you’re racist, just not good at applying lessons from the past.

Assholes and bullies don’t like to be called out for their behavior. You can try to rubber-glue the description back to me but it won’t work because I know that I won’t be in a situation where I’m an asshole by intentional misgendering.

By contrast you’re getting all whiny because you know you will correctly seen as an asshole if you carry on like this and really don’t like me or anyone else pointing it out.

[Kleppe]

"Try purposely misgendering someone at work or at a restaurant or store or something and see who everyone thinks is the asshole."

It isn't "misgendering" to use male pronouns when referring to a male. In fact, doing anything other than that is misgendering. Speak the truth.

[Nige]

'Speak the truth.'

The only reason to act like this is because you like being a bully.

[ObviouslyNotSpam]

Who is bullying whom?

[Nige]

The people pretending their personal freedom, intgroty, patriotism and economic vitality depend on denying the existence of trans people and snottily putting down anyone who claims to be one.

[Bwaaah]

LawTalkingGuy: "Courtesy is owed to everyone by everyone."

Toranth: "The fact that you need to stretch so far in a failed attempt to defend your position just shows how weak it is – and how you know it."

The only "stretch" is for you to turn such simple, decent guidance into a problem. I've never been offended by a person telling me the name by which they want to be referred. SILENCE THAT!!! TORANTH IS IN THE ROOM!!!

[Toranth]

Nice straw man and distraction.
This isn't about names and you know it. This is about men demanding access to women's private spaces and vice versa, and LTG making accusations likening disagreement to racism. Anyone with 2nd grade reading comprehension would understand that - since it was plainly written there.

Or perhaps you really did think it was about names, in which case you must have been very confused by LTG's response to Kleppe.

[LawTalkingGuy]

But it’s the same idea. White southerners were made very uncomfortable by the idea of black people in places they considered private or sensitive like pools and bathrooms!

[Kleppe]

"The only “stretch” is for you to turn such simple, decent guidance into a problem."

There's nothing decent about playing along with a mentally ill person's delusions. Quite the opposite.

[Nige]

Which has nothing to do with this, although it reveals a profound hostility to people with mental health problems. If a mentally ill person tell you they're depressed do you immediately refuse to go along with their 'delusion' and tell them they're not depressed at all? Do you refuse to play along with their so-called 'depression?'

[Kleppe]

"Courtesy is owed to everyone by everyone"

What part of shaming people into changing their speech to pretend that men are actually women is courteous?

[LawTalkingGuy]

Shame is a key component of ensuring a courteous society. We shame line cutters. We shame people who are rude to others in public. Etc.

[Nige]

This means nothing to you. It's absolutely fuck-all to do with you or your life. Yet you act as if it's the greatest threat to freedom and liberty since people wore masks to reduce their chances of catching covid.

[Nige]

Think you're a bit stevephobic, tbh.

'and no transgender person ever owes any courtesy to anyone else?'

Trans people should call him Steve, too.

[Dr. Ed 2]

Trannies can go to hell.

[Nige]

You first.

[Dr. Ed 2]

“Carter sold approximately 320 grams of methamphetamine”

If that’s the actual weight — 320,000 mg, that is a LOT.

Adderall — which is amphetamine and not methamphetamine, but similar, comes in 5 mg through 30 mg sizes — with most daily doses being under 100 mg. So (keeping the math simple) that would be 3,200 daily prescribed doses — likely twice that. From what I see, a lethal dose is somewhere in the range of 800-1600 mg depending on body weight.

320 grams is over 2/3 of a pound — that is not a small amount!

Or is this one of those cases where a gram isn't a gram?

[John F. Carr]

Sentences for federal drug crimes are based on the total weight of any mixture containing a detectable amount of an illegal drug. A kilo of cocaine should draw the same sentence as 10 grams of cocaine cut with 990 grams of a legal substance.

US Sentencing Guidelines 2D1.1(c) note:

Unless otherwise specified, the weight of a controlled substance set forth in the table refers to the entire weight of any mixture or substance containing a detectable amount of the controlled substance. If a mixture or substance contains more than one controlled substance, the weight of the entire mixture or substance is assigned to the controlled substance that results in the greater offense level.

[ObviouslyNotSpam]

Which, among other things, has the perverse result of treating more potent pure drugs less seriously than less potent mixtures which include drugs. The rationale for this has always escaped me.

But that's why I always insist on 100% purity, just in case.

[John F. Carr]

I think the motive was a combination of tough on crime and simplicity of administration. In some states you can be convicted of drunk driving based on measurements made hours after the act of driving. It's easier for the system to say "if he is drunk at 3 AM he is guilty of driving drunk at 12 AM".

[Noscitur a sociis]

That’s true for most drugs, but it’s not true for meth: the offense level (and mandatory minimums) can be calculated either with respect to the weight of the whole substance, or by looking at the amount of actual methamphetamine. The ratio between the former and the latter is 10:1, but these days, meth is virtually always 99+% pure.

[Kleppe]

You aren't supposed to encourage mentally ill people's delusions. That is precisely the opposite of what you should be doing.

[Nige]

You aren't supposd to accuse random people of being mentally ill and thereby unworthy of courtesy, either, but here you go.