Short Circuit: A Roundup of Recent Federal Court Decisions

Public use, ballot selfies, and a bonkers closing statement.

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

The "open fields" doctrine permits gov't officials to roam private land without consent, a warrant, or probable cause as long as they don't enter the "curtilage" around a home. The Fourth Amendment does not apply. So just how much land is unprotected? Over at Regulation, IJ's own Josh Windham and Dave Warren have crunched some numbers and come to some startling conclusions. Click here to learn more.

But wait, there's more! The very same open fields "doctrine" turns 100 years old this May. Please join us in Arlington, Va. to confer, commemorate, and kvetch with an all-star lineup of scholars, including Laura Donohue, Maureen Brady, Morgan Cloud, Daniel Epps, Luke Milligan, and James Stern. Click here for details! And be sure to click here for a lovingly crafted podcast episode on the history of the doctrine.

• Boston U students sue for breach of contract for having to go remote in Spring 2020. They lose in district court, and, after they appeal, the legislature passes a law retroactively barring COVID-19 suits like theirs against higher ed institutions. Students: Hey, no fair, due process violation! First Circuit: Today's lesson is about rational basis. Class (and case) dismissed.
• Teenager is convicted of murder in a 1992 shooting in the Bronx. Two eyewitnesses testify and identify him. But almost 20 years later one of them recants! And two alibi witnesses, who did not testify, come forward! Defendant asks for habeas relief, claiming actual innocence and witness tampering. District court: Wow, this sounds pretty bad! That is, bad enough to address the merits but not so bad that you get habeas relief. Second Circuit: We'll assume you can make a freestanding innocence claim, but not give it to you.
• SEC goes after former investment advisor for submitting $290k in false expense reports—including for personal vacations, flights to the Super Bowl, and shopping—that were ultimately paid by the funds he managed. Second Circuit (over a dissent): But he only intended to rip off his employer; it was his employer who ripped off the funds. So he's off the hook (on these charges, at least)
• The Fifth Amendment allows gov'ts to use eminent domain to take property only "for public use." If a town takes your property because it doesn't like you or what you're planning to build, but it says as a pretext that it'll leave the land as an empty field for a "passive park," is that bad-faith purpose still a "public use"? Second Circuit: Sure; who are we to second-guess the sagacity of town officials? Dissent: The "Constitution contains no Fake Park Exception to the public use requirement of the Takings Clause," and for good reason—the town here admitted that the majority's view would allow it to "seize the homes of disfavored minorities" in order "to drive them out," "as long as the Town said it would build parks." By blessing that, we've now created a split with several other circuits and state high courts. (This is an IJ case.)
• Defense attorney: So we've got a deal? You'll recommend a sentence of just one year over the mandatory minimum? Delaware prosecutor: Absolutely. . . . Your Honor, this "gangsta," this "puppet master" who "may as well have" pulled the trigger in a botched robbery that left two dead deserves only 22 years, and not the maximum sentence of life in prison. Defense attorney: No objections, your Honor. Court: Life in prison it is. Third Circuit: The gov't has to honor its plea deals, and it may have fallen short here, but the prosecutor didn't tell the judge anything she didn't already know. Harmless error.
• Allegation: Witness to barfight tells Meadville, Penn. officer that the attacker had braided hair and resembles an individual (the plaintiff) in Facebook photos who had a different hairstyle. The officer tells a judge that the witness "identified" the plaintiff as the attacker, omitting the discrepancy about hairstyles. The plaintiff is arrested. (All charges are dropped.) False arrest? Malicious prosecution? Third Circuit: If true, the officer "exaggerated and hid facts to manufacture probable cause." No qualified immunity.
• Defense attorney: So we've got a deal? We agree on a total offense level of 14? Federal prosecutor: Absolutely. . . . Actually, your Honor, let's make that 18. Does that breach the agreement? In that case we take no position on whether it should be four higher than 14. Defense attorney: Objection, your Honor! Third Circuit: The gov't has to honor its plea deals, and it really fouled this one up. Remanded for resentencing before a new judge.
• There are few things more fragile than trust, except perhaps for the ego of a gov't lawyer subject to even the mildest sanction for misleading a judge. In related news, the Third Circuit holds that a federal judge did not abuse his discretion when—after concluding that the Philadelphia District Attorney's office misled the court about the depth of its investigation regarding a death-row inmate whose habeas petition the office conceded—he ordered DA Larry Krasner to apologize to the family of the murder victims and be more forthcoming in the future.
• Relatedly, no habeas for the death-row inmate mentioned above, who was convicted in 1985 for torturing and killing two people and leaving their infant daughter to freeze to death (miraculously, she survived). Per the Third Circuit, he suffered no prejudice from his counsel's failure to offer his prison records as mitigation evidence at sentencing because, among other things, that would have opened the door to evidence of his repeated escape attempts.
• HHS's Title X program provides hundreds of millions of dollars to clinics to distribute contraceptives and other family planning services. Grantees must "encourage family participation." But Texas law gives parents a right to consent before their children obtain contraceptives. Does Title X preempt Texas law? Fifth Circuit: Sure does not. If Congress intended to nullify state requirements that parents consent to their teenagers' getting the pill, it should've done so more explicitly.
• It takes a lot for a lawyer's closing statement to be so bonkers that the court of appeals will reverse the judgment entered in their client's favor. And these lawyers win the prize, says the Fifth Circuit, after cataloguing how "they employed nearly every type of improper argument identified by our court, including highly improper and personal attacks against opposing counsel, remarks about [the plaintiff's] wealth, a discussion of matters not in the record, insinuations that [the plaintiff] had lower moral standards because he was from Michigan, and suggestions of [the plaintiff's] bad motives through counsels' opinion." This tight 14-pager is worth a read in full. (And the oral argument, for those whose interest is piqued, is worth a listen too, with both sides' appellate lawyers acquitting themselves with distinction.)
• Ohio law makes it a crime to display your filled-in ballots, and gov't officials have repeatedly issued public statements emphasizing the illegality of posting "ballot selfies." Plaintiff: I have taken ballot selfies in the past and refrained from posting them because doing so is a crime, and I would like to post ballot selfies in the future but am chilled from doing so. Because it's literally a crime. Ohio officials: This woman obviously has no standing. District court: Yeah, definitely no standing. Sixth Circuit: "Defendants in this case have not only failed to disavow enforcement, they have also publicly doubled down on the ballot prohibitions." Sure sounds like a case or controversy to us.
• University of Oregon employee blocks Portland State University professor on one of Oregon's (then-called) Twitter accounts in response to professor's quote tweet. Professor sought to learn what policies governed his blocking and, when unsuccessful, sued for a First Amendment violation. Ninth Circuit (unpublished and over a dissent): The professor has raised serious questions on the merits of some of his claims, and the University's post-case-filing unblocking is not enough to limit the professor's sought relief.
• Denver man has armed standoff with police in his mother's home, and police throw teargas cannisters into the house causing a fire. Mother sues under state law, but police invoke a Colorado immunity that shields officials unless their actions were "willful and wanton." District court: That's a fact question for the jury. Tenth Circuit (unpublished): "Willful and wanton" requires showing that the police knew the teargas would cause a fire, not just that it might cause a fire. Mother can't show that, so immunity granted. Concurrence: Also, this Colorado immunity is a legal issue that should have been decided by the judge, not a jury.
• Wherein the Tenth Circuit gives some side-eye to a Colorado prison's "troubling" DEI programming—warning that "race-based training programs can create hostile workplaces when official policy is combined with ongoing stereotyping and explicit or implicit expectations of discriminatory treatment"—but holds that in this particular case it wasn't so bad as to violate Title VII.
• Atlanta firefighters respond to a housefire and find the remains of a married couple; they may have been strangled and the fire was intentional. The couple's son is arrested and spends a year in jail. Yikes! The investigating officer neglected to tell the judge that the son has a video-supported alibi. (All charges are dropped.) District court: The officer didn't know or have reason to know about the exonerating evidence. Qualified immunity. Eleventh Circuit: Reversed.

New case! Illinois holds more than $5 billion in unclaimed property—uncashed checks, forgotten accounts, and misplaced savings. And David Knott helps people go about recovering their property before it is escheated—that is, surrendered to the state. (Fun fact: "escheat" is the etymological origin of the word "cheat.") But state officials now say David must obtain a private detective license, which means learning about firearms handling, crime scene investigation, and electronic surveillance, and then apprenticing with a licensed private detective for three years. None of which has anything to do with the work he actually does, searching publicly available databases and helping people with paperwork. "It just doesn't make sense," said David. "My clients are happy, my business is providing a useful service, and now after years of helping people and companies reclaim their rightful property, Illinois wants me to get a totally irrelevant license. It's counter to the primary goal of the program." It's also unconstitutional. Click here to learn more.