Short Circuit: A Roundup of Recent Federal Court Decisions

Arresting the wrong Jose Vasquez. Arresting the wrong Bethany Farber. Arresting the wrong Juan Martinez.

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

This week on the Short Circuit podcast: A dog named Thor not behaving as man's best friend and speculation as to why "bigamy" is in the Mississippi Constitution.

And, over at the Fed Soc teleforum, IJ's own Robert McNamara moderates a debate on the merits of qualified immunity between Michael Perloff, interim head of the ACLU, and Prof. Chris Walker of the University of Michigan. Click here to check that out.

1. During the COVID-19 pandemic, the CDC imposed a temporary eviction moratorium that the Supreme Court held was beyond the agency's statutory authority. CDC: Which means the eviction moratorium couldn't possibly have worked a taking, right? Because takings are lawful, and we acted unlawfully, right? So, y'know, neener neener neener, right? Federal Circuit (over a dissent): That is very clever and entirely wrong. Case undismissed!
2. During 2020 police-brutality protests, D.C. police arrested quite a few people and then released them in relatively short order. They did not, however, release their cell phones for months and years—despite not pressing charges or seeking search warrants. District court: Which is fine. The Fourth Amendment only applies to the initial act of seizing the phones, not retaining them. D.C. Circuit: Vacated. Text, history, and tradition say otherwise. Concurrence: And the five circuits that have gone the other way on this employed unpersuasive reasoning. (IJ—with some friends—urged this course of action in an amicus brief.)
3. Maryland man who shares name and DOB with a fugitive wanted for a 40-year-old Illinois murder is repeatedly arrested by D.C. police. Egregiously, Illinois police had put the Maryland man's SSN on their warrant. But eventually, they correct that and instruct officers not to detain the Maryland man. Despite this, D.C. police detain him two more times. Jury: And D.C. owes him $100k for false imprisonment. District court: Vacated! Just because a D.C. officer knew the Maryland man had a different SSN than the one on the (corrected) warrant doesn't mean the officer knew he was a different person. D.C. Circuit: Doesn't it? The jury's verdict is reinstated.
4. Defendant robs a Maine bank, has a rap-sheet "longer than" the sentencing judge's "arm," and early in his subsequent prison term engaged in a fair amount of poor behavior. However, it's also true that falling on his head when he was four "'annihilated' his brain's impulse control center," that he has recently taken remedial classes in prison and has been much better at following prison rules. Worthy for compassionate release under the First Step Act? First Circuit: These are not "extraordinary and compelling reasons" for early release.
5. The Satanic Temple challenges the City of Boston's failure to invite them to give an invocation before its city council as a violation of the Establishment Clause. City: It's not that city councilors are favoring certain religions, it's that they're inviting people they like for non-religious reasons, like their good works in the community. First Circuit: Oh, well that's fine. Concurrence: The city also says that city councilors "might find it politically expedient to curry favor with a religious group and its constituent members," which seems at least a little problematic.
6. Virgin Island prisoner files a habeas petition with the territorial court in 2014, and all that court has done is since is hold a single status conference—seven years ago. So petitioner files his petition in federal court, where he has to show "inordinate delay" to excuse a failure to exhaust state-court remedies. District court: Sure, you kept filing motions and discovery requests while the territorial court dawdled, but you also could have sought the extraordinary relief of mandamus from the territorial high court, so the delay is your fault. Third Circuit: Are you kidding me? If the gov't doesn't have a very good reason for the delay, this habeas petition needs to be considered on the merits pronto.
7. In darker times, before Fortune's hand uplifted your summarist to life as a scrivener, he made a living extracting "withdrawal liability" from unwary unionized employers. (For an explanation of what that term means see this super-old and underread law review article.) Yet, one thing even he didn't do was represent a painters' union pension fund that sent its bill for $427,195 to an employer who had ceased making contributions to the fund 12 years prior. Was that "as soon as practicable" after the withdrawal? Third Circuit: A little bit long. And it's OK for us to second-guess the arbitrator.
8. Late one night a Pittsburgh man—a felon on probation—and his girlfriend see shadowy figures breaking into her car behind their house. Girlfriend gets out her handgun she keeps in a safe, hands it to the man, and takes her three kids out of the house and to safety. Man then confronts the figures, who flee, but while fleeing he fires shots and hits one in the thigh. Man dutifully calls his probation officer and admits to this—for which he's charged with being a felon "in possession" and sentenced to 84 months imprisonment. Second Amendment violation? Third Circuit: History, tradition, and Shays' Rebellion. Conviction affirmed.
9. In 2013, Maryland banned the sale and possession of so-called "assault weapons," a term that, as defined, includes the most popular rifle in the country. A coalition of firearms activists sue, arguing the ban violates the Second Amendment. Their case ping-pongs around the lower courts for years, gets a GVR at SCOTUS after Bruen, and then finally lands back at the Fourth Circuit (en banc) which says: These "arms" aren't even covered by the Second Amendment. Concurrence 1: We're drowning in history. Concurrence 2: I think the law's OK, but we're not supposed to be balancing stuff. Dissent: "Arms" are "arms." Also see footnote 2 for some opinion-drafting funny business.
10. Did Mick Jagger and Keith Richards say hi and, like a spider to a fly, steal a Spanish musician's musical compositions for their 2020 song "Living in a Ghost Town"? Fifth Circuit (unpublished): Can't say. Why'd you file this in Louisiana?
11. Man and woman conspire to kill woman's former husband, which they accomplish. Both are sentenced to death. Yikes! Turns out the judge (ex parte) tasked the prosecutor with drafting the sentencing opinion with the aid of the judge's notes. (The judge and prosecutor are publicly reprimanded.) The condemned man gets resentenced—to death by the same judge who refused to consider new mitigating evidence and in an opinion that is almost identical to the original. Sixth Circuit: Habeas granted. The judge was unconstitutionally biased. He also should've considered all relevant mitigating evidence. (For those keeping count, that's the second Sixth Circuit habeas grant of an Ohio conviction in as many weeks.)
12. Chinese spy would invite aviation experts from foreign companies to give presentations in China, cover their travel and provide additional payments, with the goal of stealing proprietary information. A GE Aviation engineer who specialized in composite fan-blade technology fell into the spy's trap—and eventually into an FBI investigation. Working with the feds, the GE engineer gets the spy to Belgium where the FBI arrests the spy. He's convicted, sentenced to 20 years in prison, based in part on the spy's intent to deprive GE of $50 mil. Sixth Circuit: Affirmed.
13. Missouri parent complains that a book in the school library system, Cats vs. Robots #1: This is War, features three pages discussing a character's nonbinary gender identity. Following district policy, the school district automatically pulls the book from the shelves and a committee votes to permanently remove it from elementary-level libraries. Parents who object to challenged books being removed automatically—with no notice or possibility to appeal the final removal decision—sue. Eighth Circuit: But they lack standing. Though hundreds of books are challenged around the country annually, who knows if it will ever happen here (again, that is)?
14. Kansas man neglects to tell his sexual partner he has HPV. When she, too, is later diagnosed with HPV, she threatens to sue her former lover and sends a demand letter to GEICO, which insured the car in which at least one of their sexual encounters took place. GEICO seeks a declaration that its policy does not cover these particular injuries. Eighth Circuit: And GEICO's right. Though an errant semicolon may suggest that the policy covers all "bodily injury" for which the insured becomes liable, context and common sense suggest the injury must be associated with the use of the car as something other than a mattress.
15. Old and busted (Supreme Court, 2020): "[A]s a general rule, our system 'is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief.'" New hotness (Eighth Circuit, 2024): Courts can compel defendants to assert qualified immunity (and then grant it), even if those defendants' counsel "didn't see grounds" to do so.
16. California woman is arrested in Los Angeles on a no-bail warrant from Texas (a state she says she has never been to) that identifies her by name, DOB, driver's license number, and more. After 12 days in jail, Gainesville, Tex. police confirm that—whoops!—they indicted the wrong woman. The real suspect (wanted for vandalism) has the same first and last name, but a different middle name. Can the wrongfully jailed woman sue the City of Los Angeles? Ninth Circuit (unpublished): No.
17. California man is detained in Stockton for public intoxication and then jailed for five days after the officer discovers a no-bail warrant from Los Angeles for a man with the same name and DOB. Yikes! The warrant actually identifies a different man who is significantly taller and heavier and has an entirely different set of fingerprints. Can the wrongfully detained man sue the Los Angeles Police Dept.? Ninth Circuit (unpublished): No.
18. Shortly before the 2022 election, the Libertarian Party of Georgia—which has run candidates for governor and lieutenant governor in every election since 1990—challenges a Georgia campaign finance law that favors Republican and Democratic nominees over those of minor parties. The district court denies its motion for preliminary injunction and the party appeals. Eleventh Circuit: Too bad the complaint didn't include any allegations in their complaint about what the party wants to do after the 2022 election. The case is moot.
19. Man is mistakenly released on bond from Orange County, Fla. jail. When officers seek to apprehend him, he shoots at them, wounding an officer in the shoulder. He flees, leaves his gun behind, and is then shot himself. While officers are holding him down, and before he can be cuffed, he jerks his arm. An officer shoots him in the back of the head, killing him. Excessive force? Eleventh Circuit: Qualified immunity. He may have been unarmed, but no reasonable jury could find that the officer knew he was unarmed.
20. And in amicus brief news, IJ is urging the Supreme Court to take up a pair of cases about outrageously short deadlines for filing Section 1983 cases, deadlines that are set by … state legislatures? As Judge Ho recently noted, that does seem passing strange: "you would think the last thing Congress would want is fifty different limitations rules." And, as we note in the brief, too short limitations periods (of, say, one year)—combined with judge-created procedural barriers like qualified & municipal immunity that require intense, time-consuming research prior to filing suit—undermine Congress' intent to allow individuals to vindicate their rights under the federal Constitution.

Victory! Friends, back in April we sued Nazareth, Penn. over an ordinance that made it a criminal act to put a "for sale" sign on a legally parked car. (Curiously, the ordinance only banned "for sale" signs, while allowing all sorts of other commercial speech on legally parked cars.) This week, borough officials repealed the ban. "I'm glad the borough has done the right thing and repealed the law, so nobody else will have to worry about facing criminal charges for simply putting a 'for sale' sign in their car window," said IJ client Will Cramer. "This case was always about making sure what happened to me doesn't happen to anyone else in Nazareth." Click here to learn more.