Short Circuit: A Roundup of Recent Federal Court Decisions

Firearm privacy, trial transcripts, and a Good Samaritan.

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! Mason Murphy was arrested for walking on the wrong side of a rural road in central Missouri. OR WAS HE? He would like to argue that in fact he was arrested as punishment for his protected speech, and that there's pretty darn strong evidence of the officer's true motive. For one thing, no one is ever arrested for walking there. For another, the officer's bodycam caught him calling others to ask, "What can I get him on?" But the lower courts are deeply split on what evidence people can use to prove up retaliatory arrest, and SCOTUS should surely take a look.

New on the Short Circuit podcast: We grab some bricks and consider if the Anti-Riot Act might be overbroad. And then: an "amazing" qualified immunity case about a Good Samaritan's arrest.

• In a rare sua sponte en banc hearing, the Third Circuit unanimously abandons its previous practice of reviewing dismissals of shareholder derivative actions for failure to plead demand futility under an "abuse of discretion" standard. Instead, it will now review those dismissals de novo. Unfortunately for the plaintiffs, they lose under that standard, too.
• Catholic high school in North Carolina fires teacher who intends to marry his same-sex partner. When sued for sex discrimination under Title VII, the school raises several defenses, but expressly waives any argument under the "ministerial exception" to Title VII. Nevertheless, the district court considers the question and holds that the exception does not apply. Fourth Circuit (over a dissent): Actually, it does apply, the school's waiver notwithstanding.
• Baltimore County, Md. jail oversees a "work detail" program under which detainees work for various arms of the county, including the county's recycling center, where they are paid $20 per day despite regularly working nine-to-ten-hour shifts sorting recycling. Former detainee files a class action, alleging that he's owed unpaid minimum wage and overtime under the Fair Labor Standards Act. Fourth Circuit: Maybe so. The FLSA doesn't apply to work in or for the prison directly, but it might apply here. Case un-dismissed.
• "For those who worry that qualified immunity can be invoked under absurd circumstances: Buckle up." From that opening line, you can correctly predict this Fifth Circuit barnburner will not be kind to these Houston officers who arrested a Good Samaritan while letting a dangerous drunk driver go, and then submitted a wildly misleading affidavit to kick off a baseless prosecution. (Your summarist's query: Why again do such "absurd" invocations of qualified immunity get a rare and special right to interlocutory appeals, adding years to litigation?)
• Washtenaw County, Mich. man fatally overdoses on fentanyl in 2000. His family claims that he got the drugs from a worker at a University of Michigan pharmacology lab that tested the effects of controlled substances on animals, and they sue the lab worker, the university, and the professor in charge of the lab for his death. (Police investigated the lab worker; prosecutors never charged him.) Sixth Circuit: Can't sue the university or the prof running the lab on account of immunity (sovereign and qualified). Being a little lax about locking up drugs doesn't shock the conscience.
• Wisconsin man is convicted of murder in 1996 and sentenced to life imprisonment. Contrary to his instructions, his lawyer fails to file his appeal. Yikes! He spends the next two decades trying to get the state courts to let him get his appeal. In 2016, they finally give him the thumbs-up. Huzzah! But in order to appeal, he needs a transcript of the original trial. Which he tried to get in 1997 but couldn't because he lacked the money. And the court reporter's notes have since been destroyed. Yikes again! State trial court: Given the absence of a transcript, it's only fair he gets a new trial. Huzzah! State appeals courts: Au contraire, it's his fault he doesn't have a transcript since he should've ordered it back in the '90s. ::Sigh:: Yikes. Seventh Circuit: Which he tried to do. But you all said no because he was too poor! Wisconsin's behavior is a "travesty of justice." If you don't start a new trial within two months, the guy needs to be released on bail. And if you don't start it within three, he's to be released unconditionally.
• California law requires the state to disclose information from its databases of registered firearms owners to a research center at the University of California-Davis and gives the state discretion to disclose the information to other accredited research institutions. Registered firearms owners sue, alleging, among other things, violation of their right to informational privacy and the Second Amendment. Ninth Circuit: They lose. The data is not "highly sensitive" and, in any event, is subject to strict data security precautions.
• When Inglewood, Calif. police officers make to pull car over, a passenger tosses a gun out of the window; he's later convicted of being a felon in possession—he has five prior convictions. But does the fact that they were all non-violent make this latest conviction unconstitutional? Also, is he a member of "the people"? Ninth Circuit (over a dissent): The people he is. And there's no historical analog for disarming non-violent felons. Only, arguably, "British Loyalists, Catholics, Indians, and Blacks."
• A woman is murdered in Torrance, Calif. in 1979 with a handmade garrote. The investigation stalls, but detectives pick up the cold case and home in on an ex-boyfriend of the woman. Based only on circumstantial evidence—such as picture-hanging wire found at his mother's house that is similar to the wire used in the garrote—the man is tried in 2014. The court does not allow him to present exculpatory evidence of another viable suspect, an ex-boyfriend of the woman who had had dinner with her the night of her murder. He's convicted. Ninth Circuit: That evidence was powerful for the defense and most definitely should not have been excluded. Habeas granted. Dissent: The evidence shouldn't have been excluded, but it was harmless error.
• University of Colorado, Apr. 2021: All employees and students must get the COVID-19 shot, although we do have a religious exemption. Various applicants: Hey, we're religious. School: Oh no, see by "religious" we meant super-against-all-vaccines-religious. Which really is just Christian Scientists and Jehovah's Witnesses. The rest of you are just objecting on "personal" grounds. I mean, some of my best friends are Catholic, and they're fine with vaccines. Plus, some of you aren't even members of an "organized religion." Tenth Circuit: Wow, that's super unconstitutional. Dissent: Animus? What animus?
• Aurora, Colo. police investigate a call about men in a parking lot taking guns in and out of their pockets near an SUV. The SUV drives away at a normal speed, leaving one man behind. The man immediately complies with an order to raise his hands and is detained; officers learn the man's name and that he's a convicted felon. Other officers stop the SUV after it runs a red light and discover a stolen gun. Officers use the detained man's name to get a warrant for his DNA, which ties him to the stolen gun. Should the man's name have been suppressed? Tenth Circuit: Suppress! Officers violated the Fourth Amendment by detaining the man without "any hint of any kind of illegality whatsoever." Concurrence: The 911 call described suspicious activity, but the man didn't match the caller's description.
• Federal prisoner alleges guards beat him and nurses failed to provide medical care, and he sues for constitutional violations under the Bivens doctrine that allows suits against federal officials directly under the Constitution. Defendants: Bivens is dead. Tenth Circuit: As with Schrödinger's cat, we cannot say—because you don't get to skip ahead to an appeal before final judgment. Dissent: Bivens is as dead as Marley from A Christmas Carol, and we should just say so now. (Ed. note: This strikes us as an odd allusion because Marley nevertheless played a famously important role in the story. Perhaps Bivens's ghost likewise has some vitality left?)

Flawless victory! It is with great fellowship and soaring spirit that we report to you that the Tennessee Court of Appeals has ruled that the state constitution cannot abide state wildlife officials' practice of skulking around on private land in search of hunting violations without notice, consent, or judicial oversight. Indeed, according to the court, that practice bears a "marked resemblance" to the very abuses that sparked the American Revolution. Just so! Click here to read the opinion. And click here for a lovingly-crafted, documentary-style podcast on the history of the "open fields doctrine," which okayed gov't trespassing on all private land (save the immediate vicinity of the home) under the federal Constitution.

Ignominious defeat! It is with horror and shame that we report to you that the Michigan Supreme Court, in a unanimous decision, has okayed warrantless drone surveillance for the purpose of civil code enforcement. The court dodged the question of whether repeated drone snooping is a "search" under the Fourth Amendment, instead holding that, no matter the answer, the gov't can still use the drone evidence in court. "Courts ordinarily order evidence from unconstitutional searches excluded, to disincentivize officials from violating our Fourth Amendment rights," said IJ Attorney Mike Greenberg. "The court's holding creates a massive hole in that rule, removing that incentive for officials who pursue civil, rather than criminal, violations." Click here to learn more.

Comments

[John F. Carr]

If you have a victory/defeat pair, I require a picture of John Ross as Vinko Bogataj acting out the agony of defeat jump. A photoshop or AI product will do for now.

[Commenter_XY]

OMG, is that hilarious. Yes! ROTFLMAO.

[mulched]

Well then, I am happy and sad for you.

[Krayt]

We could consider an amendment, any civil violation with penalty > $1000 suffers 4th Amendment protections.

[ReaderY]

For the North Carolina Catholic school and the gay teacher, why in the world would such a school, in today’s legal climate, stipulate that it is not relying on what would seem to be its most straightforward defense? It just doesn’t make any sense.

[Noscitur a sociis]

From the opinion:

CCHS “touched briefly” on two First Amendment-based defenses. According to CCHS, the “church autonomy” doctrine protects religious organizations against discrimination claims brought by certain employees who fall outside the scope of the traditional ministerial exception. And in addition, the First Amendment freedom of association recognized in cases like Boy Scouts of America v. Dale, 530 U.S. 640 (2000), permits all organizations engaged in expressive activities – religious or not – to refrain from associating with employees whose presence would impede the transmission of their messages, as Billard’s allegedly would here. CCHS conceded that neither of its First Amendment theories had “been applied on facts like these.” J.A. 1348, 1351.

As noted above, CCHS had stipulated that it would not rely on the better-established First Amendment defense provided by the ministerial exception. At the summary judgment hearing, however, the district court noted that CCHS appeared to be “arguing the ministerial exception” in substance if not in name. J.A. 1350. In response, CCHS explained that its constitutional defenses swept further than the ministerial exception. Id. It also confirmed that it had waived the ministerial exception, as it did not think Billard would qualify as a ministerial employee “under the test articulated [by] the Supreme Court in Hosanna-Tabor a few years ago.” Id.

[Ed Grinberg]

A private employer -- whether religious or not! -- should be free to hire / fire whoever it wants for any reason whatsoever.

[Noscitur a sociis]

Whether or not they should be is up for discussion, I guess, but whether or not they are is not. So I don’t think it’s too surprising that didn’t get much air time here.

[David Nieporent]

A private employer — whether religious or not! — should be free to hire / fire whoever it wants for any reason whatsoever.

To quote Donald Rumsfeld, you go to court with the constitution you have, not the constitution you want.

[Ed Grinberg]

The people who wrote and ratified the Constitution would fully agree with what I said. The legislation that limited private employers' discretion was not based on the Constitution.

[bernard11]

And???

[jimc5499]

That's easy. The School supports the teacher, but, doesn't want to be seen doing that. So they throw the case so they can say "we tried" and blame the Court.

[tkamenick]

Or they care more about a broader legal principle they are trying to win more than the result in this particular case. You might expressly avoid making an argument, even if it's stronger, to try and force the court to address the new theory.

[ReaderY]

For the Baltimore proson labor case, the 4th Circuit fails to make an important distinction between immigration detainees and the prisoners at issue in this case. The 13th Amendment prohibits involuntary servitude except as punishment for crime. Because immigration detention is not criminal punishment, detainees cannot be made to work involuntarily. The same is true for pretrial detainees. But convicted prisoners CAN be made to work involuntarily. This makes their situation different from ordinary workers and different from the immigration detainees the 4th Circuit compared them to.

[ducksalad]

That's true, but maybe not super relevant for the wage issue.

You can't subject non-criminals to involuntary labor, no matter how much you pay them. Conversely, work imposed as punishment for a crime doesn't have to be paid minimum wage at all.

[ReaderY]

Regarding the University of Colorado vaccine case, I think the University has point. Although the protections of the Religion Clauses apply to unorganized religions, adherents of all religions need to show sincerity of belief, which in my view requires supplying evidence of some relevant pre-existing doctrine, showing they didn’t just make stuff up ad-hoc, whatever suits their fancy.

The fact that organized people are usually better at winning legal cases requiring the martialling and organization of evidence than unorganized people does not reflect a prejudice or animosity of the judicial system against unorganized people. It’s just a side effect of the fact that organized people are better at martialing the documentation and other evidence needed to win legal cases than unorganized people.

[Aubrey LaVentana]

"it's his fault he doesn't have a transcript since he should've ordered it back in the '90s. ::Sigh:: Yikes. Seventh Circuit: Which he tried to do. But you all said no because he was too poor! "

This reminds me of Prof Volokh's pseudonmity cases, having to do with the public's right to have the work of the courts in plain public view, to assure the public of the quality of the courts' work. If the trial transcript is open to view by the public, it should be a simple matter to obtain the transcript, as simple and inexpensive as downloading a post from this weblog.

[Noscitur a sociis]

The issue in this case isn’t that the trial transcript isn’t public. It’s that there is no transcript of the trial, public or otherwise.

[Aubrey LaVentana]

If so, what amount of money is needed to create a transcript, how does the court verify that the transcript is accurate, and how does a plaintiff go about that? "Too poor" suggests there is a method, though expensive. And it returns to my argument: how can a court claim that its work is legitimate and promotes justice, if its work is not recorded?

[Noscitur a sociis]

One common practice is for a stenographer or court to take notes in shorthand during the court proceedings. The reporter will only actually turn that into a transcript if someone orders it, and the person ordering it has to pay their bill for doing it. An indigent criminal defendant would typically be entitled to have the government pay these fees, but that didn’t happen here (presumably at least in part because of the issues with getting the courts to actually accept the appeal).

[Aubrey LaVentana]

Thank you.

[KenveeB]

"Dissent: Bivens is as dead as Marley from A Christmas Carol, and we should just say so now. (Ed. note: This strikes us as an odd allusion because Marley nevertheless played a famously important role in the story. Perhaps Bivens's ghost likewise has some vitality left?)"

I'd say the reason for the allusion is because roughly the first page of A Christmas Carol was dedicated to the assurance that Marley was dead, to begin with.