Short Circuit: A Roundup of Recent Federal Court Decisions

Nonaggressive dogs, tactical vests, and the entire internet.

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

Good news for fans of the Short Circuit podcast: We're now on YouTube! Get all the legal analysis of the federal courts of appeals you're accustomed to, just now with the smiling faces of IJ attorneys. This week's episode: Qualified immunity gets a judge out of trial duty and geofence warrants in the Fifth Circuit.

1. The old saw is that strict scrutiny is strict in theory but fatal in fact, but when it comes to the curfew New York City imposed amidst the pandemic and the George Floyd protests of 2020, the Second Circuit says strict scrutiny is not so much "fatal" as it is no impediment to dismissing a case on the pleadings.
2. Circuit Split Alert! Monsanto faces thousands of lawsuits alleging that the popular herbicide Roundup causes cancer. When plaintiffs have alleged that Monsanto failed to adequately warn them of this risk, Monsanto has argued that state duty-to-warn requirements were expressly preempted by federal law regulating the labels on its products. The Ninth Circuit (2021) previously rejected this argument, but this week the Third Circuit accepts it, putting this case on a rocket ship to the Supreme Court.
3. Allegation: Inmate at Pennsylvania federal prison is sexually assaulted by a guard on several occasions and subjected to inhumane conditions of confinement, like being forced to sleep on a cold metal bunk in below freezing temperatures for months. Can he bring constitutional claims against the guard and the warden? Third Circuit: Absolutely not. Concurrence: Congress just passed a new federal prison oversight law, and the absence of a civil remedy for victims of staff-on-inmate assaults is noted.
4. Palo Pinto County, Tex. officials recently enacted electioneering regulations that restrict where, when, and how people are permitted to electioneer on county property. Fifth Circuit: And they might have even written constitutional ones if they'd paid a little more attention to what SCOTUS has said about this stuff. As it is, though, preliminary injunction granted.
5. Collingsworth County, Tex. deputy responds to a domestic disturbance call and enters home without a warrant. He then gives contradictory orders to the home's two occupants while pepper-spraying them, shoots and kills their two dogs, and then continues to pepper-spray them while shouting profanities and demanding they lie down on the floor covered in their dogs' blood. District court: Qualified immunity for all but one claim. Jury: For that claim, about killing one of the dogs, we find a constitutional violation. District court: Nevertheless, QI on that claim too. Fifth Circuit: "It should come as no surprise to an officer that he may not go around shooting citizens' nonaggressive dogs." Verdict reinstated, and some other claims can also go forward.
6. In 1971, man pleads guilty to killing his wife. After a few years behind bars he gets out, gets a girlfriend, and then kills her. He agrees to trust his fate to a 3-judge panel (whose identities he knows ahead of time) instead of a jury. Which gives him the death penalty. And after some appeals gives him another one. Later he wins at the Sixth Circuit in 2007 to receive another resentencing. Only problem is it's been so long that all 3 judges are dead or retired. So they use a new 3-judge panel. Which gives him the death penalty. Sixth Circuit (2024, en banc): Which is fine. Habeas denied. Dissent: He waived a jury for the original 3 judges, not any old judges.
7. Buyers: We bought GM cars because we thought they were super clean and green. Turns out that was all lies. And it means GM did the RICO. District court: State law claims are preempted by the Clean Air Act and no RICO standing. Sixth Circuit: State law claims are not preempted but still no RICO. Dissent: We should leave this pollution stuff to "expert agencies."
8. Franklin County, Ky. jail sergeant sexually assaults female inmate he's transporting to hospital. He's fired, convicted—and offered to avoid jail time if he re-enlists in the military. (She remains behind bars.) He's not the first county jailer to engage in sexually inappropriate behavior—three came before him. Sixth Circuit: But those staffers' misconduct is too dissimilar to the sergeant's to hold the county liable. The sergeant went rogue, so he alone should face liability.
9. It's often said that in Illinois elections you should "vote early, vote often." In fact, state law kind of allows the opposite, where as long as a voter puts their ballot in the mail by election day it'll be counted as late as two weeks afterward. But does that conflict with federal election law? Seventh Circuit: Can't say, these voters and candidates have no standing. Partial dissent: I think the plaintiff Congressman has standing, though.
10. Cabot, Ark. high school screens video on how to respond to an active shooter after notifying families of the plan. The day of the screening, a pair of brothers wear tactical vests (military style, not actually real or bulletproof) to school, and one carries a green duffle bag. School resource officers arrest the boys for disorderly conduct, despite not disciplining other students wearing military gear previously. They're acquitted, sue the officers. Eighth Circuit: No QI for the arrests. "In today's climate of school shootings, school officials and police officers are justified in having heightened concern around attire that might suggest a student is armed. But context matters, and schools have many mechanisms to discipline students."
11. You're not going to believe this, but the Ninth Circuit just held that it will not decertify the results of the 2020 general election.
12. If you're gonna buy a bunch of handguns for your convicted-felon son, it's best not to document the entire scheme on WhatsApp. And if you do, don't hand your phone over to a federal agent and allow him to search through it without a warrant. Because, as the Ninth Circuit explains, the Second Amendment isn't going to protect your right to falsely certify on ATF Form 4473 that you're not a straw buyer.
13. California enacts a law requiring online businesses to create "Data Protection Impact Assessment" reports opining on the risk that children may be exposed to potentially harmful material online and take steps to mitigate the risks. NetChoice—which is basically the entire internet—sues. Ninth Circuit: And they get a preliminary injunction.
14. Allegation: Inmate at Honolulu federal prison is hit in the head with a lock in a sock by other inmates, receives no treatment, and has headaches to this day. Can he bring constitutional claims for deliberate indifference to his medical needs? Ninth Circuit (unpublished): Absolutely.
15. Class action in Arizona alleged that the Maricopa County Sheriff's Office conducted racially discriminatory traffic stops under the guise of immigration enforcement. In 2011, a federal district court agreed, issued an injunction against the Sheriff's Office, and appointed an independent monitor to ensure compliance with the injunction. In its fifth appeal, the Sheriff's Office challenged the district court's authority to require certain remedial measures as part of an order to enforce the injunction. Ninth Circuit: Fifth time's not a charm. "[W]e are all too familiar" with this case, and the district court's order is affirmed.
16. Google Chrome users brought a class action alleging that Google illegally causes Chrome to record and send user data to Google despite a Chrome-specific privacy notice that allows users to opt out of data sharing. The district court concluded that the plaintiffs consented to Google's other general, "browser-agnostic" policies, making the Chrome notice irrelevant. The plaintiffs appealed. Ninth Circuit: The question is whether a reasonable user would believe that they consented to data collection based on the various disclosures—not whether a data collection policy is "browser agnostic." And facts material to applying the correct standard are in dispute. Reversed and remanded.
17. Allegation: In 2011, Colorado prosecutor presents false testimony to get two criminal-trial witnesses (the mother of the defendant and a family friend) arrested. (They had not in fact failed to appear.) Malicious prosecution? Tenth Circuit (2020): No absolute prosecutorial immunity; case undismissed. Tenth Circuit (2024): No qualified immunity; case undismissed.
18. Allegation: Inmate at Atlanta federal prison is attacked on several occasions by other inmates and his serious wounds are not properly treated. Can he bring constitutional claims for deliberate indifference to his medical needs? Eleventh Circuit: Absolutely not. For starters, he didn't die.
19. Railroads are public utilities and so generally authorized to use eminent domain to build rail lines—though, as the Pennsylvania Supreme Court reminds us, that means they can take land to build rail lines for the public, not to build a rail line for just, like, this one particular guy.
20. And in en banc news, the Ninth Circuit will not reconsider its (unpublished) decision that a convicted murderer was unconstitutionally denied the right to represent himself after the state trial court hearing his case reappointed counsel for him. Fourteen judges argue the case "cries for reversal," and that the convicted man's obstructionist tactics and equivocal statements—including "I did would [sic] like to have my counsel back"—made it reasonable for the state court to reappoint counsel.

New case! Awa Diagne had hoped to open an African-style braiding salon in South Fulton, Ga. this summer, and she spent tens of thousands of dollars securing a lease and preparing the storefront. But the city council rejected her business permit, not because of any legitimate concerns, but because there's an existing salon nearby. According to one council member, it's "not fair" for that salon to "have to compete" with Awa. But the Georgia Constitution says that, to the contrary, it is naked economic protectionism that is unfair, unlawful, and un-American. Click here to learn more.

Comments

[John F. Carr]

The courts of Massachusetts have also determined that the Prison Rape Elimination Act did not require elimination of prison rape. The Act encouraged states to take steps towards having a plan that might be expected to reduce prison rape.

[TextFirst]

Seems to me that a good step would be "prison rape --> automatic solitary for life." Partly that would deter would-be predators, but also it keeps them out of circulation for the rest of their stay. One thing we should really working on is simply building more solitary confinement cells; they're not hard to do, but we haven't even really kept prison construction up with population growth.

[Rossami]

You'd have to actually get to a trial and prove your case against the rapist first. The criminal prosecutor already failed to act and this guy is being denied the right to even make his argument about a civil claim.

Harsher penalties don't do any good when prosecutors won't prosecute.

[John F. Carr]

In the Massachusetts case and the Third Circuit case the rapists were guards. They can't be locked up in solitary without a trial.

[SRG2]

From the 3rd Circuit decision: "recognizing a cause of action for officer-on-inmate sexual abuse would invariably implicate a broad range of potential officer misconduct and sensitive line-drawing considerations that courts are ill-positioned to assess"

Who the fuck is well-positioned to assess? The very prison guards and admins who are responsible for the sexual assaults.

It would not be immoral, IMO, for a nameless assailant to assault Lt. Middernatch with a baseball bat.

[John F. Carr]

In the Ninth Circuit election case, the request to decertify the election was withdrawn (opinion at page 7). It would be moot by now.

[John F. Carr]

The plaintiffs suing the Colorado prosecutor won because of the intervening Supreme Court decision Thompson v. Clark. The case against the plaintiffs was dismissed before trial, which used to mean they were probably guilty but now means they are probably innocent (in the context of a malicious prosecution case).

[TextFirst]

Re: 6. So he murdered his wife during an era when we were even softer on crime and of course promptly got out on parole to kill again. Which he did in 1983 and I believe is currently in his late 70’s. Guy is going to die of old age rather than actually face justice. The laws that allow this nonsense to go on for decades need to be amended ASAP. This is absurd.

Re: 20 A procedural mess, but much more of a barn-burner than the summary implies. Opening graph outright calls for a SCOTUS reversal:

I regret the need to issue this statement regarding the denial of rehearing en banc, but this case cries for reversal. I write for two reasons: first, as a suggestion to the U.S. Supreme Court that the case should be summarily reversed; and second, as a warning to lower federal courts and, especially, our colleagues in the state courts not to rely on our deeply flawed memorandum disposition.

[SMP0328]

Allegation: In 2011, Colorado prosecutor presents false testimony to get two criminal-trial witnesses (the mother of the defendant and a family friend) arrested. (They had not in fact failed to appear.) Malicious prosecution? Tenth Circuit (2020): No absolute prosecutorial immunity; case undismissed. Tenth Circuit (2024): No qualified immunity; case undismissed.

The prosecutor's good buddy, the district court judge, did his best to help his friend. At least he was able to delay the trial for a good long while. [/sarc]

[santamonica811]

"Inmate at Honolulu federal prison is hit in the head with a lock in a sock by other inmates, receives no treatment, and has headaches to this day. ..."

The inmate got cocked, and his head isn't rock. So, when hit by a lock, that was stuck in a sock (thank God, not a Glock!), he now suffers from shock, and he cannot take stock, or 'round the Yard take a walk, and can now barely talk . . .

(Of this tale; feel free to mock.)

[Kleppe]

Check the links in #20. They go to the same opinion.

[TextFirst]

Check your browser settings, they link to two different PDF's, one of which is 10 pages and the other is 41. And I know I was like that earlier because I read it when it was initially posted...

[ReaderY]

The de facto legal standard for allowing Bivens claims seems to have a de facto gatekeeping question:

Question 1. Is your name Bivens?

Could plaintiff have overcome this barrier by legally changing his name to Bivens before filing suit?

[ReaderY]

In the Google Chrome case, under general legal principles a specific agreement that gives a consumer an additional right regarding a specific product or service supercedes a general one. Moreover, ambiguities in contracts are construed against the maker. The 9th Circuit seems to be prone to turning both maxims on their heads in disputes between technology companies and consumers.

[John F. Carr]

"ambiguities in contracts are construed against the maker"

Some companies insist that customers waive that rule of construction.

[ReaderY]

In the Pennsylvania railroad eminent domain case, I am not sure the result is good policy or consistent with traditional legal principles, although the Pennsylvania Supreme Court is free to construe Pennsylvania law as it wishes.

Municipalities routinely build dead-end and cul-de-sac roads that serve only one or a few properties. There are various legal and equitable rules compelling easements when one landowner blocks another landowner’s ability to enter and exit that benefit only the one landowner. So traditionally, where roads, sidewalks, slectric wires, water and sewer, and similar traditional public utilities are concerned, including right-of-way easements, the use is considered public and eminent domain is allowable even if only one or a few landowners end up benefiting.

I don’t see why railroads should be any different.

[vaadu]

For the Youtube podcasts, please use something like the Rumble studio which can simultaneously post on multiple platforms(Youtube, Rumble, X, etc). This provides you with a wider audience and helps reduce the Youtube monopoly.