Short Circuit: A Roundup of Recent Federal Court Decisions

A tardy oath, old-timey drunkards, and telling it man to [redacted] man.

New on the Bound By Oath podcast: Civil forfeiture is a civil rights nightmare. On this episode, we dig into the birth of the modern forfeiture regime (which we put at 1984, give or take), and we dig into forfeiture's historic roots (1789). And we ask what forfeiture's historic pedigree means for its constitutionality today. (It's still unconstitutional.)

And check out recent episodes of the Short Circuit podcast, some of which are now on YouTube. Proving that our host and guests are (or at least resemble) real people.

• The Postal Regulatory Commission is tasked with ensuring that USPS competes fairly in its non-monopoly package-delivery market. UPS contends that it has not done so with peak-season costs, allowing USPS to subsidize December costs with its first-class mail market, in which it has a monopoly. D.C. Circuit: Don't be a Scrooge, UPS. The rates are fine.
• Remember how during the Sarah Palin v. New York Times trial the judge threw the case out in the middle of the jury's deliberations, let the jury give its 2 cents anyway because he hadn't told them about his ruling, but some of them saw what he did anyway via "push notifications," and he was like whatever? Well, the Second Circuit says that wasn't exactly tip-top courtroom management. New trial granted.
• Look, if the government induces you to enter a plea bargain by promising to advocate for one sentencing range and then argues for a different, higher sentencing range, the government has breached the plea agreement, but you can't expect the Second Circuit to do anything about that if your lawyer only protested that this was unfair instead of saying the magic words "the government is breaching the plea agreement."
• In which the Third Circuit reminds us that the easiest way to remember the nuanced differences between the independent-source doctrine and the inevitable-discovery doctrine is the simple mnemonic "if you invoke the wrong one your client will go to prison for 240 months."
• This farcical, Coen-brothers-esque caper starts with a "fight-club-style altercation" among motorcycle gang members, proceeds to an alleged kidnapping, and escalates to an abortive robbery/murder attempt. It ends with one of the gang members convicted of the alleged kidnapping. Third Circuit: But his jury trial rights were violated. The convicted defendant argued there was no kidnapping (i.e., that the kidnappee was a willing participant in the robbery). His acquitted co-defendant argued that he was coerced into going along with the whole scheme. Both can't be true, so they required separate juries.
• In 1988 a 15-year-old immigrates to the U.S. and is adopted by U.S. citizen parents. At 17 he applies for citizenship. A few months later, after turning 18, the INS interviews him and—congratulations!—has him take the Oath of Allegiance and says he's a citizen. Except: Later they realize he's actually ineligible under the form they used because he's over 18. They don't tell him this for . . . 21 years. At which time he's in prison. He's later deported. He appeals on statutory grounds and also pleads equitable estoppel. Third Circuit: You might win if you had taken the oath before your 18th birthday. But you didn't. Plus, equity delights to do justice unless you're asking for citizenship.
• Allegation: In 1993 a woman skipped parole in Pennsylvania. In 2019 state authorities get around to issuing a warrant for her arrest. However, they use the address and photo of a different woman with the same name. The innocent woman is arrested and held for two weeks despite repeated pleas that she's innocent. She sues. Third Circuit: And loses. Too bad for her, but federal officials, not state, did the bad things and unless your name (and the woman who skipped parole, of course) is "Webster Bivens" you have no claim.
• Most Marylanders must obtain a license before purchasing a handgun, which requires that they submit fingerprints, be at least 21 years old, complete a safety course, and not be barred by law from having a gun. Fourth Circuit (en banc): Which is fine. Shall-issue licensing laws, like Maryland's, generally don't infringe the right to keep and bear arms. Concurrence: Laws regulating acquiring a handgun are encompassed by the Second Amendment's text but are nevertheless constitutional. Partial concurrence: Too much dicta. Dissent: The Supreme Court created a test, which the majority didn't apply and under which the law fails.
• In qualified-immunity news, the Fifth Circuit says that reasonable officials should probably have known that "declining to treat the broken screws in a prisoner's ankle and then sending him out to do manual labor in the fields while standing on that very ankle" was less than perfectly constitutional.
• Louisiana law prohibits automobile manufacturers from selling directly to consumers, and the commission that enforces the law is run by folks associated with auto dealerships. Chagrined by electric-car manufacturer Tesla's business model of selling direct to consumers, the commission opens an investigation. Tesla sues. Fifth Circuit: And the company's due process and antitrust claims should not have been dismissed. There is indeed something amiss about the way these market participants run things.
• Judge Jerry Smith is so displeased with the Fifth Circuit's ruling that the New Orleans Parish Sheriff's Office must abide by a 2013 consent decree and complete construction of housing for prisoners with mental health issues and medical needs that he dissents a la Ricky Bobby: "The result? An opinion with reasoning that, at every turn, is fatally compromised. Some parts are totally unhinged. And the remainder is incomprehensible. I respectfully dissent."
• Judge Smith seems happier to dissolve an older consent decree. 1992 a class of voters entered into a consent decree requiring remedial actions for elections to the Louisiana Supreme Court. In 2021, Louisiana moved to dissolve the decree, primarily on the ground that it had complied. The district court and a panel of Fifth Circuit judges decline to dissolve the decree. Fifth Circuit, en banc (written by Englehart, J., joined by, inter alia, Smith, J): Everyone agrees that Louisiana has fully complied with everything, so the consent decree is dissolved. Dissent: The consent decree imposed a "future compliance obligation" that the majority fails to reckon with.
• On the one hand, Texas man is charged with being an illegal alien in possession of a gun and ammo. He raises a Second Amendment defense. Fifth Circuit: We've already said that "illegal aliens are not 'law-abiding, responsible citizens'" and the Bruen case doesn't change that. Concurrence: They're not members of "the people" in the first place.
• On the other hand, police arrest an El Paso, Tex. man outside his home and begin speaking to his wife. She tells them she sometimes smokes pot for medical reasons. She is not high during their conversation. Yet, because she owns some guns she's prosecuted for being a "user" in possession. Fifth Circuit: When we analogize this lady to the Founding she's more like a drunkard than a lunatic so this law (as applied) cannot stand.
• It's not quite the Judean People's Front vs. The People's Front of Judeah, but if you want to learn the latest on what faction properly controls the Libertarian Party of Michigan (or at least can use the LP's trademarks) the Sixth Circuit will get you up to speed.
• In 1970, Congress created a grant program for family-planning projects. Since then, HHS has repeatedly flip-flopped between whether recipients may not or instead must provide counseling about and referrals for abortions. Today, HHS is in must-provide mode. After Dobbs, Tennessee largely banned abortion, and when it refused to comply with HHS's requirements, it lost its grant. Sixth Circuit: Which is OK because HHS's rules are permissible implementations of the statute. Partial Dissent: The statute says no funds "shall be used in programs where abortion is a method of family planning"—notwithstanding precedent that relied on the now-defunct Chevron doctrine.
• After Rahimi, the Sixth Circuit was obviously going to hold that the Second Amendment doesn't prevent disarmament of a felon convicted of robbery with a deadly weapon. But was it just going to say that felon-in-possession laws are presumptively lawful, or was it going to engage in a lengthy and nuanced historical analysis leaving open the possibility of as-applied challenges by people with less serious felony records? Sixth Circuit: A lengthy and nuanced historical analysis leaves open the possibility of as-applied challenges by people with less serious felony records. (A concurrence preferred the short version.)
• Malta, Ill. vocational high school teacher searches a student's bag and finds a suspected vaping product. When confronted, the student proffers "let me tell you something man to [expletive] man. How would you like it if I searched you?" Student then repeatedly tries to reach into the teacher's pants and physical contact ensues. Teacher is arrested and prosecuted for assault—and the judge directs a not guilty verdict after the prosecution rests. Can the teacher sue the officers who submitted the arrest warrants? Seventh Circuit: Arguable probable cause is all you need for qualified immunity.
• Missouri: Various federal gun-control laws "shall be specifically rejected by this state" and "shall be invalid to this state." Eighth Circuit: You see, it's the supremacy part of the Supremacy Clause that doesn't let you do that. You don't have to assist with enforcing federal laws you don't like, but that can't be premised on saying those laws don't exist in your state.
• In 1976, Congress welcomed the Commonwealth of the Northern Mariana Islands (CNMI) into the American political system. That same year, Congress banned animal fighting, but continued to allow it in states and territories—like the CNMI—where it was permitted by law. But in 2018, Congress banned it everywhere. A Northern Mariana Islander with a penchant for cockfighting challenges the amendment. Ninth Circuit: Nope, it's fine. The original law existed when CNMI entered our political system, and the Covenant between the U.S. and CNMI makes the amendments applicable as well.
• Idaho's Constitution requires the legislature to provide "free common schools." Idaho Parents: That means that all the fees I pay for my kid to take extra-curriculars are "takings" under the Fifth Amendment! Ninth Circuit: It does not mean that, no. (Also, here's some bonus guidance for district courts on the "law of the case" doctrine.)
• You might think this case is boring because it's just about whether police officers can sue a sitting city councilwoman for defamation after she claimed they murdered an innocent man while on duty, but the Ninth Circuit wisely publishes only the sexy part, which concerns whether the federal rule that says each party must pay for the deposition of opposing experts means that each party must pay for the deposition of opposing experts.
• Ninth Circuit: Section 230 of the Communications Decency Act means the defendant cannot be held liable for the fact that its product was a cesspool of hateful cyberbullying, but it can maybe still be held liable for falsely promising people that its product was something other than a cesspool of hateful cyberbullying.
• If you're a litigant in Hawaii state court and are counting on the court system's practice of sealing all medical and health records then you probably should read this Ninth Circuit opinion that says it violates the First Amendment.
• Allegation: The Navy misled San Francisco officials when leasing a contaminated former shipyard riddled with radiation to the city, resulting in police officers working at the site being exposed to contaminants. Officers sue the United States, but the gov't asserts it has sovereign immunity because Congress has not waived immunity for tort claims "arising out of . . . misrepresentation [ or] deceit." Ninth Circuit: And that is broad enough to bar these claims, even if it was the city rather than the officers who relied on the misstatements about the contaminated site.
• Oregon attorneys must join the Oregon State Bar and pay dues that fund its activities. A member objects to some of the speech that OSB engages in, including lobbying and statements in its membership magazine. Ninth Circuit (2021): SCOTUS precedent forecloses a speech claim but a freedom of association claim can go forward. District court: And I see no unconstitutional associating. Ninth Circuit (2024): But we do. Couldn't the OSB include a disclaimer that not all members agree?
• And in en ban news the Eleventh Circuit will not reconsider its decision to not enjoin the enforcement of Alabama's ban on providing certain puberty blocker hormones to minors. One of the dissents opens with words that at IJ would be awarded the prize for understatement of the year: "Substantive due process is hard."

To trial! The Sheriff's Office of Pasco County, Florida ran a program called "predictive policing," harassing people and their family members in their homes because they suspected those people might commit crimes in the future. The program unfolded like a dystopian nightmare for many county residents, including Robert Jones and his son (who was on the future-suspect list). When deputies decided Robert wasn't cooperating fully, they arrested him several times on bogus charges. IJ went to federal court to stop the Orwellian scheme in 2021. And after the Sheriff resisted our efforts at every turn this week the court allowed the case to go to trial.