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.

Comments

[John F. Carr]

What I want to know in the Ninth Circuit police shooting case is, why are there expert witnesses in a defamation and emotional distress case?

One expert's business web page: "Professor Gregory Gilbertson (Ret.) is an expert witness in police practices. He specializes in police use of force, false arrest, officer misconduct, criminal and self-defense casework."

The other expert's Wikipedia page: "Lisa Daugaard (born 1965/1966) is an American criminal justice reform activist. She is the director of the nonprofit organization Public Defender Association and a commissioner of the Community Police Commission in Seattle. She received a 2019 MacArthur Fellowship for her criminal justice reform work."

How could either of these assist the jury in deciding whether the description of a killing as a "blatant murder" is defamatory or whether the councilor should have known the police would be upset to be called murderers?

[David Nieporent]

How could either of these assist the jury in deciding whether the description of a killing as a “blatant murder” is defamatory

Presumably by educating the jury about whether the shooting was justified or not.

[Noscitur a sociis]

You really can’t see why someone might want an expert witness on whether the police acted appropriately in a case where the police officers are claiming they were falsely accused of acting inappropriately?

[con_fuse9]

Because people are too stupid to understand when force is excessive and thus, you need an expert - right Rodney King?
You see, that wasn't kick in the head, that was coercive compliance technique.
Again, you are not qualified to identify officer misconduct because officers are aloud to conduct themselves as they see fit.
And finally, your not smart enough to identify self-defense.
THEREFOR we need an expert to copsplain it to us.

[John F. Carr]

This isn't a lawsuit for excessive force. This is a lawsuit over a statement by a non-expert to other non-experts. The speaker's liability should not depend on an expert's opinion about whether police acted consistently with an expert's notion of proper procedure.

[Dr. Ed 2]

And police officers (e.g. Sullivan) are public figures.

Not saying this is right, only that it is...

[MatthewSlyfield]

"why are there expert witnesses in a defamation and emotional distress case?"

Because a vital element of a defamation case that the plaintiff has to prove is that the statements by the defendant claimed to be defamatory are actually false.

There may be no need for expert witnesses as to whether the statements at issue are true or false in most defamation cases, this case would seem to be an exception.

[John F. Carr]

The defendant in the Ninth Circuit warned users not to post harassing anonymous messages lest they be banned or outed. Sounds like a typical threat. No, it is legally considered a warranty.

This reminds me of the reason platforms got immunity in the first place. Back in the 1990s a court ruled that an attempt at moderation left the moderator liable for what remained, while no moderation meant no liability. Overturning that decision, Congress gave us the current regime where moderation can be arbitrary, abusive, or nonexistent and the platform is never liable for users' posts.

[TextFirst]

We're back to not using the numbers. Petition for the numbers!

"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.""

I think the Second Circuit got this wrong by being too stingy with the word "available." We don't have to reach the issue of plain error because the government didn't breach the agreement in the first place. The agreement required the defendant to disclose his criminal history and expressly reserved the right for variance if he was being dishonest and there was more information not currently available to the government. Turns out he was dishonest and didn't tell the government about his convictions in Puerto Rico. I don't think it was a breach in the first place; as contemplated by the agreement, the government could seek a different range "based upon new information that the defendant’s criminal history category [was] different from that set forth." It was different from that set forth. Defendant tried to pull a fast one, thinking the government wouldn't know about convictions in Puerto Rico. Letting a defendant get away with getting off easy by lying about his past convictions, then there not being any consequences because the government could have in theory found uncovered the deception at an earlier point, would be disastrous for the plea agreement process. We could have avoided all this had the defense simply been honest from the start.

[Krayt]

Don't be lazy. I don't wanna scroll up to #17 to find out what you're talking about. This offloads your work on all your readers. You do the work and surround a quote with italics html!

[Davy C]

In the cockfighting case:

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.

One of my pet peeves is the federal government making something illegal only if it's already illegal. They should leave something like this to the states (or territories), but if they're not going to do that, it should be applicable everywhere.

[TextFirst]

I'm with you. And just substantively, I have no opinion on cockfighting but this is something states and territories can figure out for themselves. That something so trivial is a federal issue shows just how massively bloated the federal government has become.

[jimc5499]

There's a lot of things like this. By having it defined by the Federal Government, activists only have to petition the Federal Government to have it declared illegal everywhere instead of having to petition all 50 States and the Territories.

[Davy C]

Wanting it illegal everywhere is at least understandable. But as this law was originally passed, it didn't even do that - it only made it illegal in the places it was already illegal.

[Dr. Ed 2]

The rationale is to prevent any jurisdiction from making it legal where it currently isn't -- although I am at a loss to understand how Congress has any right to pass any law regulating it.

Are they somehow arguing "commerce clause"? Like people are going to fly to these distant islands to see a cock fight. No, they'll go to Mexico...

[Drewski]

Congress doesn't need a hook to pass laws in the territories. They can ban jaywalking in the Virgin Islands if they care to. That said, cockfighting absolutely was big enough to affect interstate and international commerce when it was legal, and today gamecocks are illegally imported and carried across state lines for fights. Puerto Rico alone used to have a $100,000,000 international cockfighting industry that employed dozens of thousands of people.

[Davy C]

Yes, they're arguing commerce clause. You can tell from the definitions:

the term “animal fighting venture” means any event, in or affecting interstate or foreign commerce, that...

So, supposedly, if the whole thing is in-state the law wouldn't apply. But of course you know that if you have so much as a pencil from another state, they're going to claim the whole thing is "affecting" interstate commerce.

[not guilty]

Erick Williams, whose criminal history included two convictions of aggravated robbery, one conviction of attempted murder and one prior conviction of possessing a firearm as a felon, pleaded guilty to violating 18 U.S.C. § 922(g)(1) and raised facial and as applied Second Amendment challenges to the felon-in-possession statute on appeal. To no one's surprise, his challenges failed.

I wonder how soon it will be until some shlub raises the Religious Freedom Restoration Act as a defense to § 922(g)(1) -- an infringement on his free exercise of idol worship in that his popguns are venerated objects which he must carry with him at all times. As Garry Wills observed in the wake of the Sandy Hook massacre, the gun is our Moloch. We sacrifice children to him daily. https://www.nybooks.com/online/2012/12/15/our-moloch/

[TextFirst]

That "Moloch" formulation has always been preposterous or, if accurate, means we sacrifice a lot of people to Moloch. We could drive the murder rate way down if we simply ignored the Fourth Amendment and used all the power of the state to apprehend criminals; most murders are, after all, gangsters attempting to murder other gangsters and we already have a pretty good idea who they are. Does that mean we're sacrificing people to the Moloch of the Fourth Amendment? Not really, we're just balancing our civil liberties against safety. Liberals tend to understand this in every context EXCEPT the Second Amendment.

[not guilty]

Guns don't kill people.

But gunshot wounds damn sure do.

[MatthewSlyfield]

Gunshot wounds don’t happen without human agency.

[Dr. Ed 2]

Usually….

A lot of the gang guns are in such poor shape and so dirty that they will go off if you look at them funny.

On the one hand, if you are holding a gun that discharges and kills someone, you should be responsible for that — On the other hand, a lot of gang guns (stored outdoors — in the rain/snow, etc — are in such bad shape that I’m not convinced that the perp actually intended for it to discharge…

I’m not saying where we should draw the line, but there *is* such a thing as an accidental GSW. Particularly with unsafe weapons, but then one ought not be loading such weapons in the first place. IDK…

[Dr. Ed 2]

TextFirst -- look at what they are doing in El Salvador right now -- sure it would also be an 8th Amendment violation to do anything like that here, but it IS working....

[LawTalkingGuy]

I don’t think the Hawaii medical record ruling will make much difference. There may well be a first amendment presumption of public access as a theoretical matter, but in practice the presumption won’t exist. The parties will almost always stipulate to joint protective orders or joint motions to file under seal. The trial court will grant them. In the vast majority of cases no one will try to get records under seal. And the times they do they will probably be denied based on many of the same considerations that led to the statute in the first place. Maybe there will be 1 or 2 odd cases every few years or so.

It’s not actually a presumption if it will be so easily and routinely defeated.* I know the Ninth Circuit had to resolve this case under existing doctrine, but the rule in practice will be a presumption against public access with a movant having the burden to demonstrate they have a right to it.

*And before someone brings up the presumption of innocence, while most cases end in it being overcome by guilty pleas/verdicts, it’s not so easily done.

[ReaderY]

I don’t think such a first anendment right exists at least as to things like medical records, at least absent special circumstances. But I don’t think your argument works either. There are too many people like Professor Volokh petitioning to intervene to have any confidence that party stipulations won’t be tossed out.

[Krayt]

1992 a class of voters entered into a consent decree requiring remedial actions for elections to the Louisiana Supreme Court.

A class of officials might do that. Voters only vote. What they may vote on may not be constitutional, but what they vote on is not their doing. What's to consent?

[Drewski]

Some voters sued as a class, and entered a consent decree with Louisiana. The class of voters was the plaintiff. A consent decree is basically a settlement with extra steps: Both parties have to enter it for it to have force. It's only confusing if you've never seen the term before and refuse to look it up.

[rloquitur]

From the Third Circuit case:

"But no official did so until Henry reached
Pennsylvania. Officials there discovered on September 3 that
Henry’s fingerprints did not match those of the Absconder.
Yet her detention continued for another two days before she
was released on September 5. This means Henry was
imprisoned for more than two weeks for the Absconder’s
parole violation. "

This is seriously fucked. First off, regarding the lawfulness of the arrest, the court looked to a "mistaken identity" case. But where the mistaken identity is the result of stupid government, then that case doesn't really obtain. Maybe as for the arresting officers, but what this really does is allow the government to engage in a division of labor and everyone gets off (yeah, I understand that in this case there were three separate sovereigns).

But holding this woman for two days after the fingerprint check comes back as a non-match. People need to go to jail for that sort of government bullshit. I remember a bunch of years ago when some obnoxious state rep yapped about "When did the government become the enemy?" Well, Ms. Simpson, this sort of thing is the government becoming the enemy.

[rloquitur]

"It is unfortunate that the government erroneously issued
Lall a Certificate of Citizenship in the first place. And it is
inexcusable that it quickly discovered its error but failed to
correct it for over twenty-one years. Of course, it is Lall’s own
subsequent criminal conduct that has brought the consequences
of the government’s dereliction down on his head. Still, that
dereliction has fundamentally changed Lall’s identity and
place in the world. He turns to us for assistance, but we cannot
provide the relief he seeks. Not every wrong is ours to right."

Interesting.

[ReaderY]

I have to say, I think a person receiving a certificate of citizenship is entitled not only to a presumption of validity, but to considerably more process than occurred here.

In particular, I think the burden of proof was on the government to show that there was no possible way that the formality involved here could have been lawfully waived, by anybody. The government wasn’t required to make any such showing. It was allowed to say “Oops, we used the wrong form,” and just on the government’s word, with no more process than that, defendant’s citizenship was allowed to vanish.

What next? Prisoners get executed because the governor signed the pardon form in the wrong place? Prisoners get convicted with no appeal right because the defense attorney used the wrong form or the wrong magic words to plead not guilty? Fundamental rights, and this is one if ever there was one, a real one, require more than that to be simply wished away. Clearly the INS of the day intended to make him a citizen.

He WAS a citizen until proven otherwise in the same way he was innocent until proven guilty. The strict burden of proof essential to so fundamental a right was not taken as seriously as Due Process ought to demand.

I’ve often argued against extending due process to all sorts of judge-made rights. But this is real due process. Core due process. This kind of thing is what the Due Process Clause is really and truly for. If government can strip citizenship from a presumptive citizen without meeting a high burden of proof, if the presumption of citizenship for people holding a facially valid naturalization certificate are entitled to is not taken very seriously, as seriously as the presumption of innocence, we might as well not bother having a Due Process Clause at all.

[David Nieporent]

You've confused all sorts of unrelated concepts in there. There is nothing to suggest that he did not receive full due process or that there was any burden or standard of proof that wasn't met. I have no idea why you think it was just "the government's word," or what disputed facts you think there were or could've been. In fact, the court held that even if you accept all his factual allegations as correct, he's still not a citizen, and never was.

By the way, I love Short Circuit's summaries, including the snark, but you actually need to read the opinions to understand what the cases are about. It was not actually about using the wrong form. It was about him not being qualified for citizenship under any applicable statutory provision.

[ReaderY]

You didn’t read what I said. Would a waiver have been lawfully possible if the right forms and procedure had been filled out? If so, he’s a citizen.

Moreover, more fundamentally, it should be the GOVERNMENT’s burden to prove he isn’t. He shouldn’t have to allege anything, any facts at all. Putting the burden on him, requiring him to allege things in the first place, anything, was inconsistent with what I think Due Process requires.

[Squirrelloid]

I'd go further than that - if the government makes an error to its detriment, it should lose. They told him he was a citizen, they had him take the oath - he's a citizen. Government's error, government shoulders the consequences, not the person.

[ReaderY]

After all, the government here is claiming they suborned perjury. That’s the basis of their case. Why should they benefit from that? It’s like shooting your parents and then getting to claim the benefits of being an orphan. Frankly, courts here really ought to take an oath more seriously than this as well.

[ReaderY]

The 3rd Circuit should have entertained the independent-source argument. The arguments are sufficiently similar that the court is practically requiring defense counsel to say the right magic words in order to be able to challenge his client’s conviction.

Moreover, it seems to me that saying that something didn’t happen is a pretty good argument against the claim that it inevitably would have happened. While Philadelphia inspects all impounded vehicles, this obviously doesn’t apply to non-impounded vehicles. I think the 3rd Circuit needed to address the argument and address it seriously, not in a dismissive, perfunctory way.

[ReaderY]

The Pasco County Sherriff’s Department folks really need to be given a screening of Minority Report.

[ReaderY]

On the 6th Circuit felon-in-possession case,

1. Where a plaintiff will lose under either of two proffered standards, a court should decline to decide which standard applies. It should wait for a case where deciding which standard applies will actually make a difference to the outcome.

2. I continue to agree with Justice Thomas’ view that Congress’ power to regulate interstate commerce does not extend to simple possession or use of goods that previously traveled in interstate commerce. Once goods have reached their final user, they have exited the stream of commerce and regulating their use is no longer the federal government’s concern. I think Congress can only regulate posession if it is by manufacturers or distributors, like Farmer Flilmore was, not ordinary consumers or end-users. It should not be able to regulate simple posesssion not immediately connected to the stream of interstate commerce, fairly understood.