Short Circuit: A Roundup of Recent Federal Court Decisions

Jurisdictional bollards, standingripemootness, and a pretty good en banc grant.

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

New on the Short Circuit podcast: The SCOTUS Ladies, Anastasia Boden and Elizabeth Slattery, join the panel to talk Humphrey's Executor and a prosecutor who won't chill on Netflix.

• Dear readers, we ask you to decide for yourselves whether the firearms pun in the first sentence of this Third Circuit opinion was intended: "This case involves dueling firearm licensing statutes." Whatever the caliber of the panel's humor, the judges conclude that the less restrictive federal statute preempts the state statute, allowing certain retired law enforcement officers in New Jersey—both federal and state—to carry firearms in their retirement if they meet certain criteria.
• Jimmy "Henchman" Rosemond once managed rap superstars like Salt-N-Pepa and Akon. He also ran a massive drug empire and, some say, shot Tupac in 1994, which ignited a deadly war between rappers on the coasts. (He contends that Tupac shot himself.) He's Konvicted of murdering a 50 Cent associate and Locked Up for two life sentences. Seeking clemency, he enlists friends like Jim Brown to help. They allege that then-President Trump said on a phone call that he was going to commute the sentence with Freedom by Christmas 2020. The president executed 193 clemency warrants before his term expired, but Rosemond's was not among them. Fourth Circuit: Writing a clemency warrant is not Very Necessary to make it effective, but he needs evidence that Trump, in fact, commuted the sentence instead of wanting to do so in the future.
• In the standoff between Texas and the United States gov't over Gov. Abbott's attempts to reduce illegal border crossings by placing floating barriers in the Rio Grande near Eagle Pass, the en banc Fifth Circuit denies Texas's emergency motion to stay trial proceedings while the court considers whether the Biden administration is entitled a preliminary injunction. Five judges would have mandamus-ed the district court to stop the impending trial on this "historic national security crisis at the border."
• Just a warning to those of you in the Sixth Circuit (residents of Kentucky, Michigan, Ohio, and Tennessee): If the woman you've been selling an ounce or two of meth to a couple times a month suddenly asks for a pound of it, she has definitely become a confidential informant and you will definitely be sentenced as the type of guy who routinely sells pounds of meth.
• Chicago gentleman is jailed for seven years awaiting trial for murder and other assorted misdeeds. Tried at last, he's acquitted of all charges. Yikes! Seventh Circuit: And in this follow-on Section 1983 action against the arresting officers, we hold that the gentleman is out of luck. Several witnesses to the murder identified him in a line-up, so the officers had probable cause to arrest. And while the seven-year pretrial lag time is perhaps odd, "the reason for that lengthy delay is neither discussed nor challenged in this case."
• Twenty-five years after the murder of his live-in girlfriend, Missouri man is arrested, convicted, and spends 11 years in prison before the Missouri Supreme Court sets aside his conviction. Turns out police neglected to mention in their probable-cause affidavit that the man did not own a shotgun (the murder weapon), a gunshot residue test on his hands a few hours after the murder was negative, and . . . oh yeah . . . fingerprints on the woman's car belonged to a violent sex offender. Eighth Circuit: Denial of qualified immunity affirmed.
• When two people share a home and they disagree on whether to consent to a search, does the Fourth Amendment allow the police to search? According to the Supreme Court, if the person denying consent was arrested on the front lawn and is being held off in a squad car, a search is OK. But if the consent-denier is instead standing in the doorway and unequivocally refusing consent, the search is not OK. What, though, if the police are holding the consent-denier just down the hall and he's yelling not to let the police in? Ninth Circuit: That's more like the doorway scenario, and the search is not OK.
• In which Speech First, Inc. (a nationwide organization that advocates for free speech on college campuses) continues to bulldoze through jurisdictional bollards—this time securing a ruling from the Tenth Circuit that it can establish associational standing even if its members are identified by pseudonyms alone. (NB: One of the organization's other Article III cases, out of the Fourth Circuit, has been relisted some half-dozen times at the Supreme Court.)
• Man bombs the Olympics, abortion clinics, and a lesbian bar. He then flees to the mountains in North Carolina, where he remains a fugitive for five years. Once captured, he pleads guilty to avoid the death penalty, receives six life sentences plus 120 years. Man: My offenses are no longer crimes of violence, so I'm due for some new sentences. Eleventh Circuit: Nay. You waived the right to appeal your conviction and sentence and to collaterally attack your sentence as part of your plea deal.
• It's not often that a case is thrown out because (1) the plaintiffs lack standing, (2) the case is moot, and (3) the case is not ripe. Yet, the district court found that trifecta when an advocacy group and three individuals tried to challenge Georgia's ban on most 18- to 20-year-olds obtaining permits to carry firearms. Eleventh Circuit: Reversed in part. Among other things, the plaintiffs did not have to apply for permits when they knew it was futile to try. The group and at least one of the individuals can move forward with their challenge. [Ed. Note: Compare with Dick Heller of Heller v. D.C. who, on the advice of a friend, made a futile application, allowing his case to continue and history to be made.]
• And in marvelous en banc news, the Fifth Circuit will reconsider its ruling that a woman falsely convicted by a Midland County, Tex. prosecutor who was simultaneously working as a law clerk for the presiding judge cannot bring constitutional claims against the prosecutor and his supervisors. The original three-judge panel called the situation "utterly bonkers," but held that circuit precedent required her to successfully petition for habeas corpus before bringing suit, even though she cannot so petition because she never went to jail. (This is an IJ case.)
• And in woeful en banc news, the Fifth Circuit will not reconsider its ruling that a SWAT raid that caused $60k in damages to an innocent woman's home is not a taking that requires just compensation. Dissental: "By placing the onus on [plaintiff] to ground her right to compensation in a historical analogue—rather than requiring the City to establish some historically based exception to the compensation requirement—the panel flipped the burden that typically governs in cases involving individual rights." (This is an IJ case, and we're awfully miffed that the original panel rejected all of the City's arguments and substituted their own, which we couldn't brief.)
• And in additional en banc news, the Fifth Circuit will not reconsider its ruling that when a trucking company was forced into bankruptcy by two civil lawsuits arising out of a fatal traffic accident, $1 million in insurance proceeds paid to one of the victims was property of the bankruptcy estate and must be returned to the pot so that the other victim's estate gets its fair share.

New on the Bound By Oath podcast: In 1926, in the case of Euclid v. Ambler, the Supreme Court upheld zoning, giving elected officials and city planners vast, new, and largely unchecked power to tell people what they can and cannot do with their own private property. On this episode, the story of the lawsuit that changed everything for American property rights plus the personalities who made it happen. Featuring the esteemed professors Michael Allan Wolf and John Infranca.

Comments

[John F. Carr]

On the pardon case: Maybe next year we will have a case about whether a writing is required for declassification of a document to be effective.

[David Nieporent]

Weird phrasing in the Eighth Circuit case:

Nash, however, did not own a shotgun and failed a gunshot residue test administered a few hours after her murder.

By “failed,” they mean he tested negative for gunshot residue. Most people would characterize that as passing, not failing, the test.

[con_fuse9]

Perhaps in the context of a murder investigation. However, for those of us that enjoy using firearms at the range etc. might consider gunshot residue a badge of honor of sorts 🙂

[John F. Carr]

Eleventh Circuit: Given the state of capital punishment in America, Rudolph might have been better off if he had gone to trial and been sentenced to death.

[Noscitur a sociis]

How?

[John F. Carr]

Odds are he would not have been executed by now and he would not have waived his right to challenge his sentence.

[LawTalkingGuy]

I’ve heard two views from experienced capital defenders on the “is a death sentence better” question:

1. A death sentence is better because after that they’ll be out of prison gen pop and get attention from teams of outstanding lawyers, investigators, and outside advocates. State supreme courts and federal courts will heavily scrutinize the case. There are more places for error that can lead to a reversal or even a writ. More claims than normal are kept procedurally viable throughout the litigation. Clemency applications are more scrutinized. And in the long run, the likelihood of execution diminishes.

By contrast the person with a life sentence or an LWOP sentence doesn’t get that at all. Their conviction likely gets affirmed by the local appellate court. Their local lawyer put the handful of good issues in their brief effectively waiving the rest, making post conviction relief and habeas more difficult. Lawyers don’t take on the post-conviction and habeas proceedings for these cases as much. And courts treat them with less urgency. Effectively the person is sent away and forgotten about.

2. A death sentence is worse because people actually don’t want to die. Especially by execution. A life in prison is still a life. Death penalty litigation leads to a long series of dashed hopes through court proceedings and near misses with execution dates. And to the extent it seems unlikely that there will be an execution…that can change one day. New drugs. New methods. Officials who suddenly have an interest in carrying the sentence out. What seemed remote can become reality real fast.

Both the certainty and the uncertainty of execution evaporates when there is no death sentence.

For both views, YMMV depending on jurisdiction, prison facility, and the particular character of a particular defendant. But the first one isn’t totally illogical.

[Bob Coulson]

And in additional en banc news, the Fifth Circuit will not reconsider its ruling that when a trucking company was forced into bankruptcy by two civil lawsuits arising out of a fatal traffic accident, $1 million in insurance proceeds paid to one of the victims was property of the bankruptcy estate and must be returned to the pot so that the other victim's estate gets its fair share.

This can seem odd to people, but this is fairly standard in bankruptcy. The TLDR is that if a business declares bankruptcy and you received a payment from them within 90 days before the petition date, the money you received goes back in the pot and you're treated like an unsecured creditor. This prevents or at least mitigates a lot of mischief, such as businesses paying off preferred vendors and declaring bankruptcy a day later. There's no reason for the other victim to get screwed, so it's a pretty pure example of why this rule exists.

Note that the real issue might be that the trucking company was allowed by state regulators to operate with too little insurance.

[John F. Carr]

I believe a million dollars per incident is a common limit for a commercial motor vehicle policy around here. It's enough for a 99th percentile accident.

[Davedave]

The US attitude to this is very odd. Other rich-world countries tend to have limits of 10x that or more (if limiting is even permitted at all). Obviously, being so rare, the really huge payouts make very little difference to premiums.

A million dollars is very low, though, when it comes to lost future earnings, care fees for the permanently disabled, and medical bills (in the US; obviously not in civilised countries), let alone compensation for loss of life or loss of quality of life.

[con_fuse9]

I know in bankruptcy there is 'pecking order'.
Isn't "unsecured creditor" at or near the bottom of the list?
Any variations between actual and punitive damages? I can see punitive damages being rather low on priority, but actual damages... priority debt?
I assume the attorney is also out of luck?

[Ken Arromdee]

As a non-lawyer layman, I would have assumed that if the business's insurance company pays you, that's a payment from the insurance company and not from the business, so what you describe wouldn't apply. Even if the payment is made to the business on paper, it shouldn't count as coming from the business because the business doesn't control how to use it,

[Dr. Ed 2]

The question I have is where in line are the injured parties? Are they ahead of or behind the secured creditors? And we won't get into how Obama screwed creditors to help the UAW in the Government Motors bankruptcy.

[Brett Bellmore]

"Among other things, the plaintiffs did not have to apply for permits when they knew it was futile to try. "

Hawaii, take note.

[tkamenick]

My exact first thought.

[Bwaaah]

But Hawaii is now issuing carry permits, and has been since some time after the Bruen decision. And their approval rate does not appear to indicate a malicious level of compliance, but rather, a switch to a "shall issue" policy with reasoned regulatory exceptions. An effort to obtain a carry permit in Hawaii does not appear to be at all "futile" (now).

[Brett Bellmore]

But it was futile at the time Wilson, of State v Hawaii (Decided February 7th.) got in legal trouble for carrying without the permit they issued to nobody.

The state court held that his failure to apply for the permit they wouldn't have issued was fatal to his claims.

[Brett Bellmore]

Sorry, State v Wilson, of course.

[Mr. Bumble]

"And in woeful en banc news, the Fifth Circuit will not reconsider its ruling that a SWAT raid that caused $60k in damages to an innocent woman's home is not a taking that requires just compensation. Dissental: "By placing the onus on [plaintiff] to ground her right to compensation in a historical analogue—rather than requiring the City to establish some historically based exception to the compensation requirement—the panel flipped the burden that typically governs in cases involving individual rights." (This is an IJ case, and we're awfully miffed that the original panel rejected all of the City's arguments and substituted their own, which we couldn't brief.)"
You think that's bad? See linked article.
https://www.dailymail.co.uk/news/article-13092577/Wyoming-police-hours-long-standoff-murderer.html

[Currentsitguy]

I saw that, but it appears she is getting her house rebuilt gratis.

[Absaroka]

Indeed, or at least folks are trying. I saw a followup article that she may have a state case for compensation; apparently the Wyoming constitution is a little more protective than the US Constitution.

Either way, in these cases the cities should MTFU and pay even if they aren't required to.

[Scooter]

I'm pretty certain that their argument would be, regardless of any waivers by the injured party, that if they pay once they'd be on the hook in perpetuity. "Hard cases make for bad law" and all that. In this case, it's pretty definitive the .Gov effed up.

[Absaroka]

"if they pay once they’d be on the hook in perpetuity"

I'm OK with that. If I cause you harm, I should make it right, whether or not the law requires it. And I think that is equally true when it is 'we' instead of 'I'.

[Dr. Ed 2]

I think it is the price they have to pay to have people "back the blue."

Otherwise you start seeing jury nullification and other stuff that -- writ large -- is a lot more expensive than this.

[Commenter_XY]

Just want to say...Kudos to that bunch of people at the Institute for Justice. Short Circuit is my absolute fave at Volokh Conspiracy and has been for years!!!

Love the snappy descriptions. Some are truly inspired. All are readable. Thank You!

[The Margrave of Azilia]

Plus they avoid confusing language which makes the bottom-line result unclear – “reversed a decision to overrule a decision to reconsider a decision to set aside a ruling” etc.

[SRG2]

Yup. I look forward to it every Friday afternoon and IANAL.

[Michael Resanovic (still highly opinionated)]

The first one is alarming.

Assuming (and that's a big if) that the state may enact such a licensing regime in the first place, unless the federal government is actually hiring these people, the state's police power should prevail. A license enables someone to engage in an activity that is ordinarily illegal. It's one thing for Congress to exempt someone from its own laws, another for it to exempt someone from valid state laws. And it's not like the interstate commerce clause justifies anything here.

[Brett Bellmore]

"A license enables someone to engage in an activity that is ordinarily illegal."

I think that goes a bit far. Maybe even a lot too far.

A state licensing regime renders a previously legal activity illegal to engage in without the state's permission. Let's not elide the "previously legal" part of that. We're not discussing the state selectively expanding liberty, but instead selectively contracting it.

Selling firearms is the sort of thing you wouldn't have needed a license to do for most of our nation's history; Firearm dealer licensing was a diminution of previously existing rights.

[MaverickNH]

“When two people share a home and they disagree on whether to consent to a search, does the Fourth Amendment allow the police to search?”

Among the reasons why police try and separate people ASAP, is to ask consent from each. One might be advised to make clear from the get-go that consent to a warrant less search is denied. Cameras are a plus, as they were in this case.

[JKillion]

"If the woman you've been selling an ounce or two of meth to a couple times a month suddenly asks for a pound of it, she has definitely become a confidential informant and you will definitely be sentenced as the type of guy who routinely sells pounds of meth."

Rather doubtful that said seller of meth is one of your subscribers.

[Squirrelloid]

"Twenty-five years after the murder of his live-in girlfriend, Missouri man is arrested, convicted, and spends 11 years in prison before the Missouri Supreme Court sets aside his conviction."

So, the murder happened 36 years ago? ie, he was arrested and convicted 25 years after it happened? Then spent 11 years in prison following those 25 years? ...because that's what it says.

(I assume the murder happened 25 years ago, and the arrest, conviction, and 11 years served happened during the 25 years. But that's not what it actually says).