The Volokh Conspiracy

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Short Circuit: A Roundup of Recent Federal Court Decisions

A right to go down in flames, a machete confrontation, and a jury that only goes up to eleven.


New on the Short Circuit podcast: Duke Professor Nita Farahany digs into her book The Battle for Your Brain and what can be done about a future where the government can read your mind.

  • D.C. Circuit: We're not saying that these plaintiffs weren't on a terrorist watch list when they filed this lawsuit. We're just saying that if, hypothetically, the government's ex parte submission showed the plaintiffs weren't on a terrorist watch list when they filed this lawsuit, they wouldn't have standing. Also, the plaintiffs don't have standing.
  • The nature of "property" has beguiled philosophers from Grotius to Pufendorf to Locke, but one thing we now know, thanks to two-thirds of this D.C. Circuit panel, is that it definitely includes a federal employee's status as a member of the Senior Executive Service. Pufendorf never figured that one out.
  • Former presidential advisor Steve Bannon refused to comply with a subpoena from the January 6 committee, for which he was convicted of contempt of Congress. Bannon: Ah, but the statute requires "willful" disobedience. I may have disobeyed intentionally, but not willfully because my attorney told me not to comply. D.C. Circuit: We rejected this exact "advice of counsel" defense in 1961. So.
  • As part of the celebration for Eid al-Adha, a major Islamic holiday that spans four days, Sing Sing Prison provided a host of events, meals, and services for inmates on the first day of the holiday. But, according to one inmate, its meal service for the third day was insufficient, and he didn't get a special religious meal, in violation of the Free Exercise Clause. Second Circuit: Factual disputes over the meal denial mean that summary judgment in favor of the prison was inappropriate.
  • What happens when a Ukrainian couple with two young children separate, the mother takes the kids promising to bring them back the next day, instead travels to an undisclosed location, the war breaks out while the father is in Dubai, the mother brings the kids to New York, and now the father wants them to stay with him in Paris? According to the Second Circuit, a "rare circumstance" under the Hague Convention where a court can order the return of a child to a parent who is "temporarily in a third country."
  • On the one hand, federal patent law gives limited-time monopolies to encourage invention. On the other, it encourages generic pharmaceutical manufacturers to challenge name-brand patents while antitrust law prohibits anticompetitive deals. In balancing these competing interests, the Supreme Court has held it may violate antitrust law for a name-brand pharma company to pay a "large and unjustified" settlement to generics to get them to drop patent challenges and thus delay entry into the market. But what if the name-brand isn't just giving the generics a big payout but also entering into separate commercial deals with them? Second Circuit: At least in this case, it's kosher because the consumer antitrust plaintiffs didn't allege any facts to indicate those commercial agreements weren't legitimate.
  • If lots of jurors and alternates drop out during the course of a trial due to the unavoidable travails of life so that the jury only goes up to eleven, so that there's a mistrial, does that constitute double jeopardy? The Third Circuit says not always.
  • Parents of Montgomery County, Md. public schoolkids don't receive notice and cannot opt out from their children's exposure to certain books. One example is Pride Puppy!, an alphabet primer featuring a family whose puppy gets lost at a pride parade, with each page focusing on a letter of the alphabet and directing its three- and four-year-old readers to look for items such as drag kings and queens and underwear. The school board also provided scripts for teachers to use in responding to student questions, including, "Our body parts do not decide our gender." The parents sue, invoking the Free Exercise Clause. Fourth Circuit: With a scant record, the parents don't (yet) have the evidence necessary to preliminarily enjoin the program. Dissent: The parents have shown that the school board has put them to the choice of compromising their beliefs or forgoing a public education for their children, so an injunction is proper now.
  • Woman sues, alleging that when she was an inmate in Berrien County, Mich. jail, her roommate sexually assaulted her multiple times, and, rather than protecting her, the officers retaliated against her and placed her in solitary. Officers: Qualified immunity! Sixth Circuit: You forfeited that argument by mentioning it in summary-judgment briefing "in a perfunctory manner, devoid of applied facts or developed argumentation." But even if you hadn't forfeited it, you'd still lose.
  • Kentucky mom, dad, and their 10-year-old daughter are three days into a job painting the interior of a house when police unexpectedly arrive to execute a search warrant. Mere seconds after knocking and announcing, police shatter the front window and, responding to the family's terrified screams, begin shooting through the broken windows. They haul the family out and handcuff all three before searching the empty house and discovering no criminal activity. Sixth Circuit (unpublished): And their Fourth Amendment rights were violated. Whether the police department is liable for that is a question for remand.
  • Defendant: Look, sure, I was just convicted of drug trafficking, and, yes, I testified that I deposited all my legitimate income in the bank while I kept all my drug-trafficking money in cash, and, okay, you found a bunch of cash in my house near my drugs and my scale and my notebooks meticulously documenting my drug-trafficking transactions, but that doesn't prove the cash is the proceeds of drug trafficking. Sixth Circuit: Actually, you're right (as to some of the money).
  • Security guard at a high-crime Des Moines, Iowa apartment complex calls police after he sees a vehicle moving about very late at night to various places where it's illegal to park, with a passenger swinging a gun around. Police arrive, vehicle tries to leave, police conduct a Terry stop, and they discover the gun. Yikes! The guy with the gun is a felon, so it's a federal crime for him to have it. District court: Permitless carry is legal in Iowa so those circumstances didn't provide reasonable suspicion for the stop and search; gun suppressed. Eighth Circuit: Seems plenty suspicious to us, gun unsuppressed.
  • This Eighth Circuit opinion teaches two lessons. First, sovereign citizens' legal-mumbo-jumbo-filled parallel universe is a wild place. Second, criminal defendants have a constitutional right to "go down in flames if they wish" by representing themselves, and the mere fact that a defendant is politely pressing his "wacky" arguments before trial is not the kind of disruptive behavior that loses him his right to self-representation.
  • Allegation: White man complains that a Black woman coworker at their Missouri state agency repeatedly hits on him, including with the proposition that it's "not cheating if it's not in your race." Two-ish months later he's terminated and then sues under Title VII for race and gender discrimination, plus retaliation. Eighth Circuit: You still gotta plead a motive. Dissent: For retaliation the temporal proximity is enough.
  • When the en banc Ninth Circuit in March issued six opinions spanning 241 pages on whether the federal government's transfer of Oak Flat to Resolution Copper violated the rights of Apache Indians who hold the land sacred, your summarists frankly told you to read it yourself because we weren't going to. And because our word is important to us, we're not reading this amended opinion either. We write again only to note that—per page 13 of this newly released opinion—you can apparently petition for rehearing en banc from a decision en banc, which is both puzzling and, in any case, denied.
  • If you call 911 to report you have taken hostages and already killed two of them, and then confront the police while holding a machete, that is probably not going to end well. Tenth Circuit: And even if police might have handled it differently, they're going to get qualified immunity for shooting you.
  • Another throwback to Short Circuits past! Back in March we summarized a decision concerning Timothy Sepi, former videographer for the now-incarcerated Joe Exotic, star of Netflix's Tiger King. Last time around the Tenth Circuit threw out almost all of Mr. Sepi's copyright claims against Netflix for use of his video footage, but remanded for the trial court to take a closer look at one of the video clips. This week the Tenth Circuit vacates that opinion and requests supplemental briefing on how the Supreme Court's recent decision in Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith should affect its fair-use analysis regarding the remaining video clip.
  • One thing that nearly ten years of writing Short Circuit has taught us is that when you see a judicial opinion that needs a "Table of Contents," you're in for a ride—particularly if, as in this Eleventh Circuit opinion, the Table doesn't show up until page 12.
  • Health insurance at one Georgia sheriff's office doesn't cover sex changes. A Title VII violation? Eleventh Circuit: Sure is! The Supreme Court just held that Title VII's ban on sex discrimination includes discrimination based on gender identity. And that includes denying coverage for a surgery that only transgender people want. Dissent: The plan excludes bariatric surgery and Viagra too. "It's not discriminatory; it's just a cheap plan."
  • And in en banc news, the Second Circuit will not rehear its earlier decision that the Promoting Security and Justice for Victims of Terrorism Act of 2019 violated due process by providing that groups—such as the Palestine Liberation Organization and the Palestinian Authority—that make payments to the families of incarcerated or deceased terrorists are "deemed to have consented to personal jurisdiction" in U.S. courts. Three judges dissent from denial. Meanwhile, Judge Leval—who as a senior judge cannot vote on whether to rehear a case en banc—adopts Ninth Circuit Judge O'Scannlain's idiosyncratic practice of issuing a "statement of views" (in this case, agreeing that the case should not be reheard).
  • And in amicus brief news, IJ is urging the Michigan Supreme Court to rule that the mere smell of marijuana does not give police probable cause to stop, search, and seize people when it is legal, as the drug is in Michigan.

The words "zoning" and "justice" don't often go together, but they do in IJ's new Zoning Justice Project where IJ aims to protect and promote the freedom to use property. For more than a century, abusive zoning practices have eroded property rights, disregarding individual liberty while emphasizing top-down planning. IJ has been pushing back against zoning for years, but with the housing affordability crisis raging we wanted to put all our efforts in one place. From links to our ongoing zoning cases to our latest amicus brief we filed at the Montana Supreme Court to how-to advice on challenging zoning laws you can find it all at the Zoning Justice Project.