Short Circuit: A Roundup of Recent Federal Court Decisions

Criminalizing journalism, spooking gun buyers, and fashioning the destiny of the community.

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

New case! Last year, at the request of large dairy producers, Oregon agriculture officials decided to force small dairies to comply with the same regulations that apply to big dairies. Which means, for instance, installing ruinously expensive equipment to manage health concerns that simply don't exist when you have three cows in a pasture versus hundreds in confined spaces. Click here to learn more.

• Federal gov't alleges that illegal materials are destroying lives after being smuggled across the border between Mexico and the United States and demands that those who profit from their sale be held accountable. But in a Serlingesque twist it's the federal gov't of Mexico, the illegal materials are guns being smuggled south, and those who profit are U.S. gun manufacturers and distributors! First Circuit: And Mexico's claims are not barred by the Protection of Lawful Commerce in Arms Act. Mexico has adequately alleged that the defendants knowingly aided and abetted illegal downstream sales.
• In 2015, "Pharma Bro" Martin Shkreli obtained exclusive rights to antiparasitic Daraprim, jacked up the price from $17.50 to $750 per pill, and blocked the entry of a generic competitor. He's convicted of antitrust violations, ordered to disgorge $65 mil, and gets a lifetime ban on working in (or even speaking about) the pharma industry. Second Circuit (unpublished): Affirmed. And by clarifying the injunction to ban the bro's public statements about a particular company if intended to influence that company, the district court resolved any free-speech concerns.
• "The citizens of Chesapeake retain the right to fashion the destiny of their community," writes the Fourth Circuit, which is tough luck for the subset of people in Chesapeake, Va., who own property and want to build stuff on it.
• Fairfax, Va. mobile home park implements policy that requires evidence of lawful status in the U.S. of all adults living in the park. Households that don't comply have to pay more in rent but aren't actually evicted. Tenants: Fair Housing Act violation! Park: Hey, we have to do it under federal anti-harboring laws. Fourth Circuit: Actually, you don't.
• Anne Arundel County, Md., requires that gun sellers distribute pamphlets about firearms and suicide prevention and information on where to obtain a suicide-prevention toolkit. Gun rights group and gun retailers file a First Amendment lawsuit, alleging that the gov't is forcing them to convey messages designed to spook their customers out of buying guns. The gov't says it's all just factual and noncontroversial information, no different from any other product warning label. Who's right? Fourth Circuit: We're applying Zauderer, so obviously the gov't.
• Allegation: In police report, Dallas officer falsely claims that bar patron shoved him. The patron (who fell and broke his wrist after the officer punched him in the face) is charged with felony assault on an officer, though the charge is quickly downgraded and ultimately dismissed. Fabrication of evidence? Fifth Circuit (unpublished): Qualified immunity. It's clearly established that three officers can't confer and then give coordinated false statements to justify a shooting. But here only one officer allegedly lied, and he didn't really have time to deliberate over the lie, and the consequences of the lie were less grave.
• Motorist pulled over for unpaid toll violation declines Harris County, Tex. constable's order to exit his car and instead turns the engine back on. The officer jumps onto the door sill and fires into the vehicle without aiming as the car begins to move forward. The motorist dies. Fifth Circuit: Qualified immunity. At the moment he fired, the officer reasonably feared for his life. Concurrence: Our circuit's precedent, which requires us to ignore an officer's role in creating the danger that justified the use of deadly force, conflicts with Supreme Court precedent.
• Allegation: Houston police obtain arrest warrant (for armed robbery) by misleading a judge. When the suspect (who has a master's degree in criminal justice and is studying for the LSAT—and who was falsely accused by ne'er-do-wells with a grudge) is informed of the warrant, officers are told he will hire a lawyer and turn himself in later that day. Nevertheless, officers in plainclothes confront him outside his home and shoot him dead—without ever giving commands or announcing themselves. Fifth Circuit (unpublished): Denial of qualified immunity affirmed.
• After journalist asks Laredo, Tex. police officer to confirm facts that were part of a developing story, and the officer willingly did so, the journalist is … arrested! Her questions ran afoul of a Texas law that prohibits asking for information that hasn't been released to the public (a law that has been on the books for decades and never used before now, rather suspiciously against a critic of law enforcement). Can the state criminalize routine newsgathering of the kind that reporters do every day? Fifth Circuit (en banc, by a vote of 9-7): You betcha, First Amendment notwithstanding. [IJ filed an amicus brief urging a different course of action. For some in-depth journalism, here's the Texas Observer.]
• Parents challenge the FDA's issuance of an emergency-use authorization covering the COVID-19 vaccines for children, alleging that they fear someone will vaccinate their kids without parental consent, harass or marginalize them for their unvaccinated status, or push pro-vaccine messaging on them. But, per the Fifth Circuit (unpublished), none of those are cognizable injuries—the parents' citation to a Sesame Street video in which Elmo announces having gotten the COVID-19 vaccine notwithstanding.
• Working in concert with the ATF, Cincinnati police attempt to pull over a suspected arms- and drug-trafficker, who leads them on a high-speed chase. The suspect eventually loses control of his car, crashing into a restaurant and killing two people. Their estates sue the Cincinnati officers. Officers: We were working with the ATF, which basically makes us federal employees, which makes us immune from liability. Sixth Circuit: One of them, who was actually deputized by the ATF, is immune. The other two were just regular Cincinnati cops with no immunity. Concurrence/Dissent: I'd remand for more fact-finding on whether those two were acting under the direction of the deputized one.
• Troublesome inmate in the Wisconsin Dep't of Corrections inserts a two-inch screw into his arm, embedding it so far that it's no longer visible. Over screams and requests for anesthetic, prison doctor refuses to use anesthetic and roots around in the arm with forceps for several minutes (without success), all while saying things like "this is a consequence of your actions." Later taken to a hospital, the inmate has the screw removed (with anesthetic) in a painless three-minute procedure. Seventh Circuit: It sure seems like a jury might conclude the doctor acted with deliberate indifference to the inmate's medical needs. To trial the case must go.
• In 2021, FBI agents raided a safe deposit vault in Los Angeles, broke open every single box, and tried to civilly forfeit everything worth over $5k—all without individualized probable cause. The FBI tried to justify its search as an "inventory," and that argument worked at the district court. Not so much at the Ninth Circuit, which saw a slippery slope leading directly to the "very abuses of power … that led to the adoption of the Fourth Amendment in the first place." (This is an IJ case.)
• Man is convicted of sex crimes in Indian country against an Indian victim under statute that applies if either the perpetrator or victim is an Indian—but does not apply if both are. Man: The feds didn't show I am not an Indian. Feds: That's your fault for not objecting to the jury instructions. Tenth Circuit: That's your fault for not proving an essential element of the crime. Convictions reversed.
• Is it okay for a criminal-defense counsel to tell his (black) client that if he goes to trial, the jury "would be culled of any minorities" and he'd be tried before an all-white jury? Tenth Circuit: No, that's decidedly not okay. And given that misrepresentation about the right to a fair and impartial trial, the client's resulting guilty plea can't be said to have been knowing and voluntary. He gets to withdraw his guilty plea.
• In 2020, federal investigators found that Springfield, Mass. police officers were routinely using excessive force and then lying and withholding exculpatory evidence not only to cover it up, but also to obtain convictions against the very victims of their violence. Even so, the district attorney's office has continued to withhold from criminal defendants (past and future) that officers involved in their cases were implicated in these abuses. Massachusetts Supreme Judicial Court: Prosecutors have an "inescapable constitutional dut[y]" to investigate and disclose such info. Remanded for case-by-case adjudications. [IJ filed an amicus brief urging the court to reach this result and detailing the various immunity doctrines (the Heck bar and its state-law analogue first among them) that would have made it impossible for victims to obtain any remedy had it not.]
• And in en banc news, the Ninth Circuit will reconsider its decision that ZoomInfo—an online directory of professionals and their employment information—was not entitled to dismissal of a class action under California's anti-SLAPP law. But in a be-careful-what-you-wish-for twist, the grant comes after ZoomInfo filed a motion for panel rehearing, prompting the panel to sua sponte order the parties to brief whether the whole en banc court should consider whether ZoomInfo deserved to lose even harder. (Both sides opposed en banc rehearing.)

New case! After Theslet Benoir and Clemene Bastien received a permit to open the first food truck in the town of Parksley, Va., a member of the town council with ties to the restaurant industry harassed them, destroyed their property, and eventually convinced the rest of the council to ban food trucks. But the council assured Theslet and Clemene that they could continue operating until their permit expired … at least until IJ sent the council a letter asking them to reconsider the ban. The very next day, the town council sent Theslet and Clemene a letter ordering them to shut down immediately and threatening them with fines and jail for every day they had lawfully operated. Now, they've joined with IJ to sue the town and the council member to end this harassment and vindicate their constitutional rights. Click here to learn more.

Comments

[John F. Carr]

In the Fourth Circuit if you rent all of your units to undocumented immigrants and you are warned by officials you are a criminal (United States v. Aguilar), but if you rent some of your units and are not warned you are not a criminal (the present case Reyes et al. v. Waples). The location of the line to be drawn between those cases is unclear to me.

[MatthewSlyfield]

"The location of the line to be drawn between those cases is unclear to me."
The official warning?

[Michael P]

Making conduct criminal on the basis of getting a post-facto warning would violate due process and fair warning.

[Brett Bellmore]

Not if they give you a chance to cease the illegal conduct first.

[kotodama]

Children’s shows, Mandrake. Children’s shows.

[MatthewSlyfield]

Mock ancient Chinese philosopher Confuseus says: "What???"

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Dr. Strangelove.

[Michael P]

I understood that reference, but it's not clear to me what it's referring to. The original quote was Gen. Jack D. Ripper's list of products being considered for fluoridation: "Ice cream, Mandrake. Children's ice cream?"

Does one of the blurbs here involve a deranged general, ice cream, children's media or fluoridation? Communists sapping our vital bodily fluids? Preserving our essence?

[John F. Carr]

I wonder if the lawyer in the minority culling case was telling the truth or at least making a plausible prediction. It is illegal to intentionally cull all minorities from the jury, as the appeals court observed. Does it happen anyway in the Western District of Oklahoma? It seems to me more likely in state courts in the Deep South than in a federal District Court.

[Rev. Arthur L. Kirkland]

Are you suggesting the southern states still feature plenty of bigots?

By southern states, I mean the states that were led by traitors, bigots, and losers in the Civil War and still feature plenty of half-educated, bigoted, obsolete culture war casualties.

[John F. Carr]

Fear of COVID vaccines does not grant standing in the Fifth Circuit, but fear of somebody else's abortion drug side effects does.

[David Nieporent]

The mifepristone case for standing is indeed ludicrous, but this one was even more so.

[rloquitur]

"Villarreal and others portray her as a martyr for the sake of journalism. That is inappropriate. She could have followed Texas
law, or challenged that law in court, before reporting nonpublic information from the backchannel source. By skirting Texas law, Villarreal revealed information that could have severely emotionally harmed the families of decedents and interfered with ongoing investigations. Mainstream, legitimate media outlets routinely withhold the identity of accident victims or those who committed suicide until public officials or family members release that information publicly. Villarreal sought to capitalize on others’ tragedies to propel her reputation and career."

I cannot believe that nine federal judges signed onto this language. It is wildly inappropriate here to comment on Ms. Villareal's work when she was subject to what ultimately turned out to be a BS arrest (whether the thugs, er public servants, were immune or not.)

Edith Jones is a disgrace to the bench.

[Rev. Arthur L. Kirkland]

Edith Jones is an obsolete, superstitious, ready-for-replacement bigot who has tarnished the federal bench for far too long. Let's hope Pres. Biden nominates her successor.

[ReaderY]

As I mentioned in a comment on Professor Volokh’s post on this case, the majority saw her conduct as straightforwardly wrongful, and therefore saw qualified immunity as the just outcome. From the majority’s point of view, it was very understandable that police would find this conduct prosecutable and they could not be aware that the statute might he technically considered unconstitutional. They completely rejected her claim it was police persecution or some sort ocf vendetta.

[David Nieporent]

The majority's position can be summed up thusly: government officials should be able to violate people's constitutional rights with impunity. Unfortunately, the Supreme Court has said otherwise, so we can't just issue that ruling. We will, however, interpret the precedent we don't like in the most absurdly narrow way so as to get the same result.

For example:

SCOTUS has said that some violations are so fucking obvious that you don't need a case on point. The original panel noted that and then said, "Yeah, and 'You can't arrest a journalist for asking questions of government officials' is one such obvious fucking principle."

Jones here said, "Nope. Each of the cases where SCOTUS has invoked the 'fucking obvious' principle was an 8th amendment case. But this is a 1st amendment case, and so that principle doesn't apply."

I would urge people to read the dissents in this case, by the way; they absolutely eviscerate Jones's pathetic reasoning.

[SomeGuy 2]

Mexico probably propelry solved MTD, but this is some pretty weak tea. They're irate that the guns are good (high rates of fire, low recoil, large magazine)-- but somebody's going to have the best gun and the cartels are going to buy that one. "Your legal product is a little TOO good, therefore criminals will use it" isn't applied to anything else ("Toyota has handling that's a little too good, therefore getaway drivers love it!")

Then they're irate that the marketing portrays the guns as used by military and law enforcement. I'm very interested in their evidence that the cartels were influenced by this advertising.

The distribution is one of those seven degrees of separation things-- you sell to a dealer who sells to someone who sells to someone who sells to the cartel. To the extent any dealers are bad actors, then that's a law enforcement issue. If the government says somebody is a licensed dealer, it's not on the gun company to do their own investigation and determine they're really an arm of the cartel.

MTD is incredibly lax, so they survive. But they don't have any appearance of actual wrongdoing.

[Purple Martin]

Ah, but would it change your view if it is credibly alleged “…U.S. gun manufacturers and distributors [“the defendants”] knowingly aided and abetted illegal downstream sales?” (That’s what’s required by the Protection of Lawful Commerce in Arms Act before such a violation can pass the legal threshold preventing dismissal before trial.)

It wouldn’t? You wouldn’t allow evidence proving or disproving such an allegation to be tested in a trial? Yeah, that’s what I thought.

[Michael P]

This First Circuit panel is the only court to have concluded that what you wrote is what PLCAA means. PLCAA was actually written to bar such claims, but the court ignores the statutory text by imagining a gun manufacturer standing next to a distributor standing next to a dealer standing next to ten sellers all at the border, where eight of those sellers are illegal purchases. They should have focused more on the proximate-cause text in the law, and addressed what the law actually says rather than just declaring that gun manufacturers are doing something substantively like sending a mercenary company to attack people in Mexico City.

[billardl]

When it comes to guns, liberal judges ignore the plain text of applicable statutes (PLCAA, the safe transport provision of FOPA and everything else) and the plain text of the Constitution and Supreme Court precedent.

They know they're acting in bad faith, but they also know that there are no consequences.

All judges appointed by Clinton, Carter, Obama or Biden are traitors, and deserve to be convicted in one trial before a jury of 12 white patriotic conservative Americans from the heartland, and sentenced to death by Zyklon B.

[Purple Martin]

No Michael, while its authors' desires likely aligned with your, the "PLCAA was actually written to bar [all] such claims," the all is only implied, not explicit. Specifically, billardl's "the plain text of applicable statutes...the plain text of the Constitution and Supreme Court precedent" do not eliminate a court's jurisdiction and thus mandate to identify Threshold Issues alleged claims would need to clear before being allowed to go to trial (look up the term; credible allegation, standing, laches, and Trump's claimed absolute immunity are all such threshold issues).

But since that's inconvenient to your argument, you pretend to be unaware of that inconvenient fact.

So, you confirm that were it up to you, you would simply prohibit evidence proving or disproving such an allegation from being tested in the reality-based world of the rule of law—evidence investigated, collected and presented to the court; arguments advocated and rebutted; testimony and cross-examination under oath with legal consequences for lying—because, hmmmm, any court finding conforming to your worldview is ipso facto illegitimate?

Good to know.

Also, how proud you must be to have such firm support from such as billardl.

[Scooter]

Strawman, much?

LMFAO

[SomeGuy 2]

It's not even really credibly alleged. They survived MTD, but I doubt they survive summary judgment.

Car manufacturers make a ton of cars every year. Some of them end up being used in crime. They have a pretty good guess that cars near the border are more likely to be used for crime, yet ship them to San Diego anyway. Does that make Toyota complicit? Of course not. This is an issue for law enforcement, it's not for the gun companies to invent magical ways to keep criminals from using their products.

[EscherEnigma]

Is it okay for a criminal-defense counsel to tell his (black) client that if he goes to trial, the jury "would be culled of any minorities" and he'd be tried before an all-white jury? Tenth Circuit: No, that's decidedly not okay. And given that misrepresentation about the right to a fair and impartial trial, the client's resulting guilty plea can't be said to have been knowing and voluntary. He gets to withdraw his guilty plea.

I mean, if it's true, then it sure seems okay for the counsel to be honest with the client. Wonder if they tried that in court. "Well actually, if you look at these statistics we compiled, the counsel was basically right."

[SomeGuy 2]

The only evidence that plea counsel said that is that he now says so. Makes me wonder-- it looks like the evidence wasn't as good as first thought. Plea counsel may have taken a dive here so his (former) client could withdraw his plea. He won't suffer any consequences from this and, if pressed, said he made a mistake/was just being too "realistic."

[Krayt]

I have a strong prescription for lenses. I once orderer big lens glasses, and when they arrived, the edges were approaching asymtote of a parabola and were at least 3/4 of an inch. They would have made the worst nerd Coke bottle glasses look svelt.

I put them on, and they had been ground wrong, the centers of focus not aligning with my eyes, so back they went and I picked much smaller frames.

Thank god for that mistake.

A few years later, I realized it was probably a “mistake” by the grinder because sales were idiots.

[mse326]

Regarding the 5th Cir QI case. This is the poster child for courts being happy to treat police officers like they are imbeciles. There doesn't need to be an exact case, only cases that would make it clearly established to a REASONABLE officer. If a reasonable officer wasn't on clear notice that lying about the evidence is a constitutional violation then we should marvel they are even able to wipe their own ass

[Jason Cavanaugh]

What are you complaining about?

It's now been clearly established that 3 officers cannot confer to lie, and one officer cannot do it on their own either.

That still leaves all other positive integers of police officers that can conspire to lie without it being clearly established as unconstitutional.

Isn't that enough of a win for everyone?

[BadLib]

Re: Dallas LEO's intentional false statements likely to cause harm to the citizen...

QI has to go. Decisions like this suggest it needs to be completely scrapped and, perhaps, replaced by a de novo standard. QI may make sense in some cases, but in a case like this (at least as described here), it's absurd and demonstrates how off the rails the whole doctrine is.

Any reasonable person, let alone a LEO, knows that making false statements in a case like this is illegal (let alone moral or ethical). That's enough to be "clearly established".

And the time spent deciding to lie is immaterial. The officer (it appears, a jury may decide otherwise) made a decision to lie and it shouldn't matter how long he thought about that or who he coordinated with in that endevour. If murder can be "premeditated" in mere seconds, a decision to lie in a similar time frame can be as well.

[darkknight9]

IANAL but if the police/county attorney knew giving out those facts was a nokey dokey and the journalist didn't, would that be entrapment?

[Jason Cavanaugh]

Since Texas has decided to eviscerate the 1A press freedoms and criminalize the mere asking of the question, no.

The "crime" would already have occurred.

[Jason Cavanaugh]

Motorist pulled over for unpaid toll violation declines Harris County, Tex. constable's order to exit his car and instead turns the engine back on. The officer jumps onto the door sill and fires into the vehicle without aiming as the car begins to move forward. The motorist dies. Fifth Circuit: Qualified immunity. At the moment he fired, the officer reasonably feared for his life. Concurrence: Our circuit's precedent, which requires us to ignore an officer's role in creating the danger that justified the use of deadly force, conflicts with Supreme Court precedent.

The pig jumped onto the sill of the vehicle with his weapon already drawn, after the vehicle was moving forward and away from him.

The murderer created the 'danger' to himself, with his weapon already drawn: He'd already decided that Barnes was either going to respect his authority to effect a traffic stop for UNPAID TOLLS, or die.

I continue to be surprised that decisions such as these do not result in extrajudicial settling of the family's dispute after the courts turn a blind eye to murder.

[billardl]

This is the "victim."

https://texasleftist.com/wp-content/uploads/sites/29/2016/08/Ashtian-Barnes-672x372.jpg

[Brett Bellmore]

Yeah, so? Looks like my next door neighbor.

I have little doubt that he was guilty of something, or else he'd have stayed to get the ticket. Doesn't mean that the cop had a lawful basis for shooting him dead.

[billardl]

You should sell your house then as soon as you can.

[Brett Bellmore]

Well, there's a reason UQI wasn't invented until the mid 20th century. Americans before that would have taken justice into their own hands too frequently for it to be workable.

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[Brett Bellmore]

"Over screams and requests for anesthetic, prison doctor refuses to use anesthetic and roots around in the arm with forceps for several minutes (without success), all while saying things like "this is a consequence of your actions.""

I'm having a hard time believing that the doctor's attempt at extraction was more painful than the inmates own insertion. In my experience doctors can actually be pretty casual about their patients' pain, especially when performing emergency procedures. It doesn't imply that they're vengeful, just jaded.

[David Nieporent]

Prison doctor, not real doctor.

[Jason Cavanaugh]

Test