Short Circuit: A Roundup of Recent Federal Court Decisions

Eleven-person juries, noncustodial plaintiffs, and abdicated responsibilities.

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

New cert petition! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Fourth Circuit: Wildcard! Let's instead use a "non-exhaustive list of factors" combined with a brand-new level of "loosened," "quite different," and "more relaxed" constitutional scrutiny. Read the cert petition to learn why the Fourth Circuit's approach is decidedly not cricket and entrenches a circuit split on a question of nationwide importance.

1. Capitol police officer warns a Facebook friend to take down a video of himself in the Capitol on January 6. When the FBI becomes very interested in these conversations, the officer deletes the conversations. He's convicted of obstructing grand jury proceedings. Officer: But who could have foreseen that a grand jury would be empaneled? D.C. Circuit: Well, you, for one, especially since you posted on January 7 that every protestor who entered the Capitol should be federally charged.
2. Section 2 of the Fourteenth Amendment mandates in plain English that if the right to vote is "in any way abridged" by a state for a sufficient number of its citizens then it proportionally loses seats in Congress. Since 1868 … no state has ever lost a seat in Congress because of Section 2. Voters group: Until now! Here's evidence that there's been vote denials in a number of states. Census Bureau: Um, that's not our problem. Voters: Oh yeah? Here's an APA lawsuit. D.C. Circuit: Too bad none of the voters have standing. Concurrence: "I concede that implementing the Reduction Clause might be difficult, but that is no excuse for the Judiciary Executive Branch to abdicate its responsibility to give effect to this important part of the Constitution."
3. New York man is prosecuted for sending death threats to congresspersons and Fox News hosts. A jury of 11 convicts. Second Circuit: That's OK. A 12-person jury isn't a constitutional right. And no prejudice suffered: The threats were clearly real (e.g., "Laura Ingraham, I am going to personally kill you"), so the error was harmless. Dissent: Not OK. Twelve jurors are "fundamental" to criminal trials. A 12th could've tipped the balance or hung the jury, a real possibility given the jury spent days deliberating, couldn't reach a consensus on one charge, and sent out notes like, "Do we have to convict even if we think he is mentally ill?"
4. If you're a massive corporation—like, say, Hertz—and you have enough dough to pay all your creditors but ask for bankruptcy protection anyway, don't be surprised if a court—like, say, the Third Circuit—doesn't allow you to cancel hundreds of millions of dollars in interest in an attempt to stiff your noteholders. Partial dissent: I think a different interest rate applies.
5. Navy man returns home from deployment and tries to rent a Hanover, Md. apartment. Yikes! A tenant screening agency reports that he (1) has a criminal record and (2) might be a Mexican drug trafficker (his name is similar to a purported trafficker who was born seven years before he was). He's initially rejected but then approved two days later after explaining that (1) he does not have a criminal record. (2) does not come up, and the property manager testifies she doesn't really know what that part of the report meant and didn't rely on it. Fourth Circuit: He lacks standing to sue the tenant screening agency over (2).
6. Twenty years after being convicted of (vehemently denied) cocaine possession, IJ client Erma Wilson learned that the Midland County, Tex. prosecutor on her case was moonlighting as a law clerk for the presiding judge, a flagrant violation of the constitutional right to a fair trial. Though she never served jail time, the conviction meant she's been unable to pursue a lifelong dream of becoming a nurse. Can she sue for money damages? Fifth Circuit (en banc): Nope, she's got to get her conviction overturned first. Dissent: There is a "deep and enduring" circuit split on this, and our circuit "has been on the wrong side of this fateful split for almost a quarter-century," unjustifiably cutting off access to federal court for federal constitutional violations. (This is an IJ case. Click here to learn more.)
7. Jury: Plaquemines Parish, La. sheriff's deputy acted unreasonably and unconstitutionally when he arrested a man for calmly asking "why" when the deputy asked for his ID. Deputy: Qualified immunity, please. Fifth Circuit: No. It wasn't reasonable to think you had probable cause to arrest, and the jury was entitled to reject your qualified-immunity defense and to award punitive damages.
8. Allegation: Motorist crashes his vehicle in Austin, Tex. after leading police on high-speed chase. Police tase him and pin him down; he tells them he can't breathe and that he has a heart condition. He dies. Did an officer who held him down for 90 seconds use excessive force? Fifth Circuit: That's for a jury to decide. Dissent: If the officer had shot the motorist dead during the chase, he'd have gotten qualified immunity. Makes no sense he could be liable just for holding him down. (NB: Two other officers were acquitted of criminal charges. And the incident was recorded by the "Live PD" reality show, leading to a state ban on law enforcement participating in such shows.)
9. Allegation: University of Louisville psychiatrist is demoted and essentially fired in retaliation for expressing his views on how to treat gender dysphoria in children at a think tank panel discussion in D.C. Sixth Circuit: There may not be a prior case on all fours, but all reasonable university officials know they can't fire a professor because of his protected speech. No qualified immunity.
10. Institutional investors have to vote in thousands of shareholder meetings annually. To assist them, Proxy Voting Advice Businesses (PVABs) research shareholder proposals and sell advice to these investors. Companies don't always like this advice, and in 2020 they convinced the SEC to impose a bunch of disclosure requirements on PVABs. Sounds to this humble First Amendment lawyer like a fascinating free speech case. But we're actually here because in 2022 the SEC rescinded the requirements. Sixth Circuit (over a dissent): And the way they did that was fine.
11. Man FOIAs the TSA for sundry video footage and incident reports. By statute, the TSA has twenty days to determine whether to comply with the request. It blows the deadline. Man sues. After which the TSA formally denies his request. Agency: Sure, circuit precedent says that if we don't thumbs-up or thumbs-down within the twenty-day response deadline, FOIA requestors don't need to exhaust our internal agency-appeal process (on the theory that we've constructively denied their request by ignoring it). But since we gave this guy a thumbs down after he sued, that retroactively un-exhausts the suit he filed previously, which should be dismissed so that he can exhaust the agency-appeal process that wasn't available to him when he filed the suit. District court: That makes perfect sense. Ninth Circuit: Actually, that makes precisely zero sense, as both the Fourth and the D.C. Circuits have held. The case can proceed.
12. In 2022, Arizona passed the "Save Women's Sports Act," which bans "students of the male sex" from competing in women's athletics. Two transgender girls who have been on puberty blockers since age 11 challenge the ban as applied to them. The district court grants a preliminary injunction, reasoning that there's no sound basis for excluding transgender students who have not undergone male puberty. Ninth Circuit: Which was not an unreasonable conclusion. Preliminary injunction affirmed.
13. In which the City of Los Angeles's litigation choices earn it its second remand from the Ninth Circuit in this, the eleventh year of an excessive-fines challenge to the city's $63 late-payment fee for parking fines. Ninth Circuit (2020): "[I]n its brief to this court, the City of Los Angeles did not even bother addressing the constitutionality of its late fee." Remanded. District court (2020): The late-payment fee is a-okay. Ninth Circuit (2024): "We simply ask that the City provide some evidence that the penalty amount was actually tethered to the nature and extent of the harm caused by nonpayment" (italics and underlining very much in original). Remanded again. Dissent: It's $63.
14. Allegation: Federal prisoner in California is attacked by his cellmate with a razor. Guards decline to move him to another cell, and his cellmate attacks again. An Eighth Amendment violation? District court: Could be! The Supreme Court has closed the courthouse door to nearly every constitutional claim against federal officers, but failing to protect against prisoner-on-prisoner violence is an exception. Ninth Circuit: We join three other circuits and hold that the officers don't enjoy a special right to interlocutory review here; that's a qualified immunity thing. Dissent: The Supreme Court has closed the courthouse door to these cases.
15. In 2021, inmate in Honolulu federal prison is attacked by gang members with a lock in a sock, breaking his coccyx. The nurse who examines him tells him "to stop being a cry baby," and gives him only over-the-counter pain medicine. His injuries go undiagnosed for seven months, and in the meantime bone chips embed in the soft tissue around the break. Per oral argument this last February, he still has not received treatment. Ninth Circuit: The Supreme Court has closed the courthouse door to nearly every constitutional claim against federal officers, but deliberate indifference to an inmate's serious medical needs is an exception. Proceed! Dissent: So officials have to send inmates to the hospital every time they report extreme pain? That can't be right.
16. Latest news from the world of Where Can I Take My Gun Based on kind-of Similar Laws from 1791/1868, Ninth Circuit edition: Banks? Cha-ching! Private property in general? Oh yeah. Bars? Um, no. Hospitals? First, do no harm. Parks? I'm [not] your Huckleberry.
17. Your summarist appreciates when judges are sufficiently humble to recognize that there are "hard cases" where "both sides have tendered plausible constructions of a text," and also that the Ninth Circuit majority here credits the dissent with making some good points that "gives [the majority] pause." Beyond that, we can only agree that this is indeed a "pretty complicated" case, and we leave it to the reader to decide which side has the better view on how Congress intended indemnification and removal to work for malpractice suits against private doctors at federally supported health centers that are deemed to be employees of the Public Health Service.
18. In 2013, Sacramento police officer receives two racist spam messages and texts them to a colleague, accompanied by the message, "Some rude racist just sent this!!" Six years later, the officer is now assistant chief of police for the city of Rancho Cordova and, in that capacity, forwards a complaint about the same colleague to internal affairs. The chagrined colleague digs up the texts and turns over the racist images but not the messages condemning the images. The chief is forced to resign. She later sues for First Amendment retaliation. Ninth Circuit: The speech wasn't on a matter of public concern, so no First Amendment problem. Dissent: We used to interpret public concern broadly and this is a weird case in which to tighten it up.
19. Federal officers conducting a mock hostage standoff exercise at Florence, Colo. prison get frustrated with several prison employees who'd locked themselves in a small room and refused to come out. And even though the employees repeatedly call out the safety phrase that's meant to terminate the exercise, the officers shoot rubber bullets and pepper spray into the room, punch employees in their faces, etc. Tenth Circuit (April 2024): No QI (for now) for the official who allegedly planned and facilitate the exercise. Tenth Circuit (this week): And regarding the other officers, they were acting outside the scope of their employment, so plaintiffs' state-law tort claims can proceed against them individually (in federal court) without the federal gov't substituting itself as the defendant (which is the outcome plaintiffs sought).
20. Oklahoma man shoots his intoxicated cousin dead after the cousin (allegedly) knocked his own girlfriend unconscious and then ran at the man "like a linebacker." The man is charged with three counts, including second-degree murder. He requests that the jury be instructed that he had no duty to retreat before using force in self-defense. Tenth Circuit: And that instruction should have been given; convictions reversed and remanded for a new trial.
21. Colorado assistant principal expresses reservations about an upcoming high school production of The Laramie Project and offers to add a "Christian perspective" on the issue. He's immediately put on leave and then fired. Tenth Circuit: And he has plausibly alleged that he was discriminated against because of his religion.
22. Is talk therapy "speech" within the meaning of the First Amendment? The Ninth Circuit has said no, and the Eleventh Circuit has said yes. This week, the Tenth Circuit weighs in, siding (over a dissent) with the Ninth Circuit. Last time a petition went up on this issue, three Justices indicated they'd have granted cert., so this is one to watch.
23. And in en banc news, the First Circuit will not reconsider its decision concerning whether backpacks are categorically covered by the search incident to arrest exception. Six judges joining a statement concerning denial: This would be a really good issue for SCOTUS to address whenever it gets around to doing Fourth Amendment cases again.
24. And in more en banc news, the Fifth Circuit will reconsider its decision that waiver-based remand orders are unappealable.

New cert petition! One might think that, in determining whether a statute restricts speech or restricts nonspeech conduct (a question that tends to matter a great deal in First Amendment cases), courts should ask whether the statute … restricts speech? Or whether it restricts nonspeech conduct? Ninth Circuit: Wildcard! If the gov't declares that it is regulating conduct and not speech, then everything's cricket. Read the cert petition to learn why the Ninth Circuit's approach conflicts with recent Supreme Court precedent and entrenches a circuit split on a question of nationwide importance.

Comments

[John F. Carr]

The Oklahoma case is in federal court because half of Oklahoma is Indian Country. Presumably the defendant was an Indian.

[mulched]

Thanks! I wondered, but I didn't wonder enough to bother to click through.

[John F. Carr]

"Six judges joining a statement concerning denial"

Six judges is approximately 100% of the judges in active service in the First Circuit.

[Dr. Ed 2]

See: https://www.ca1.uscourts.gov/members

They've got five District judges they list as "members."

WTF???

[John F. Carr]

You linked to the Judicial Council, which is a policy making committee that does not decide cases.

https://www.law.cornell.edu/uscode/text/28/332

[ReaderY]

In the McNellis case involving criticism of a proposed school play, the 10th Circuit required the plaintiff to show that he was speaking as a private citizen outside his official duties rather than as an employee within them. Because the 10th Circuit concluded he was speaking as an employee, not a private citizen, his First Amendment claim was dismissed.

This approach would appear to dispose of the entire concept of academic freedom. Almost everything professors claim freedom to do - to teach, conduct and publish research, etc. - can easily be described as part of a professor’s official employment responsibilities. Accordingly, under the 10th Circuit’s interpretation of Pickering as outlined in this case, there is no First Amendment right to academic freedom at all; the public university employer has complete control over all these aspects of the professor’s speech and can fire the professor if it dislikes what the professor says.

Am I missing something?

[MatthewSlyfield]

“Am I missing something?”

How about the first three words of the summary.

“Colorado assistant principal”

And from the decision: “Plaintiff Corey McNellis is a former Athletic Director and Assistant Principal of a high school within Defendant Douglas County School District”.

This is a K-12 case, not a university. And the plaintiff isn’t a teacher.

https://www.nea.org/resource-library/first-amendment-protections-educators
“Professors at public institutions of higher education enjoy greater academic freedom than educators at the K-12 level.”

This case has zero impact on academic freedom for university professors.

[ReaderY]

But we’ve had cases that have applied Pickering balancing, straight, to universities.

[MatthewSlyfield]

But that doesn't mean it applies in exactly the same way at the university level.

[Dr. Ed 2]

"“Colorado assistant principal”

That's like a college provost -- do the administrators of public universities have less free speech rights than mere professors do?

Remember the litigation over the right of people to respond to President Trump's twitter where a private citizen could prevent them from doing so -- because he was the President?

Remember too what the AAUP initially said about academic freedom a century ago -- that the right does not extend to imposing viewpoints onto students.

[MatthewSlyfield]

"That’s like a college provost"

No it's an assistant principle for a high school, not a college anything.

"do the administrators of public universities have less free speech rights than mere professors do?"

Irrelevant, we are talking about a high school assistant principle, not a university administrator.

K-12 educators have less "academic freedom" protection than university professors do.

[ReaderY]

Regarding the 9th Circuit case about the police chief fired racist text messages redacted to suggest the future police chief approved of them, how could a matter that results in a decision to fire a town’s police chief NOT be a matter of public concern? If it was a purely private matter, its occurrence should have been of no concern to the town and certainly not a basis for firing. The fact that it was of such concern to the town is empirical evidence that it in fact was, a matter of public concern.

I suggest that matters of public concern are not purely ivory tower matters that judges decide out of their heads. They involve an empirical element. If the public was in fact greatly concerned, then it really was a matter of public concern, whether judges think it ought to be or not.

[Noscitur a sociis]

Saying that taking action against an employee is enough to make the speech on a matter of public concern would effectively read that element out of the test. That seems hard to reconcile with Pickering (or, more precisely, Connick).

[ReaderY]

I think my basic problem with this case is that it’s a libel by omission case, and the police chief didn’t get a fair hearing because false evidence was presented. It isn’t really a First Amendment case at all, and the First Amendment is a rather poor vehicle.

The reason I don’t think the First Amendment applies, and pursuing that angle may have been a huge mistake on his lawyer’s part is that he was not fired for what he said. He was fired for what someone falsely accused him of saying. Because he wasn’t fired for what he said, the First Amendment retaliation theory fails.

On reflection, I would have decided the case on those grounds.

[tkamenick]

I agree with this approach.

Also, I think the "public concern" analysis focused on the original communication of sharing the racist post with the coworker, not the later complaint.

[ReaderY]

On the 9th Circuit case involving the prisoner in pain, the prison wouldn’t have to send a prisoner complaining of severe pain to the hospital if it provided health care that included an adequate examination. Such an examination would have detected broken bomes. Choosing not to provide such an examination is not a necessity. It’s the prison’s own choice.

[MatthewSlyfield]

#2

Section 2 of the Fourteenth Amendment mandates in plain English that if the right to vote is "in any way abridged" by a state for a sufficient number of its citizens then it proportionally loses seats in Congress.

Yeah, that's not quite what section 2 of 14A says.

Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. But when the right to vote at any election for the choice of electors for President and Vice-President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.

[Krenn]

Yeah, I've never figured out who's supposed to be in charge of enforcing that clause. I'm not convinced that it even IS the executive branch or the judicial branch's job.

For example, Montana has 1 house seat and 2 Senate Seats, 3 electoral votes. The way 14.2 is written, that would SEEM to say that if Montana excludes 50% of all 21-yrd-old-male-non-criminal-non-traitors from voting, but only excludes them from voting for PRESIDENT, That Montana is therefore entitled to cast only 1.5 Electoral Votes for President of the United States. But I think the only people who would have ANY authority to actually enforce that would be Congress on Jan. 6th. Unless maybe you somehow sued all 3 electors on Electoral College Day, and demanded that they only send 1.5 Ballots to Congress in the first place?

For EXTRA fun, if Montana rules that Women can vote for President, but Men CAN'T, that would mean that Montana gets ZERO electoral votes for president. We REALLY should have updated the 14th amendment when we passed the 19th amendment.

[Noscitur a sociis]

Yes, that provision wasn't really very well thought out, which would probably explain why 1. It's never been enforced and 2. It was a good idea to do just do what we were trying to do directly with the Fifteenth Amendment.

[MatthewSlyfield]

“I’ve never figured out who’s supposed to be in charge of enforcing that clause.”

14A.5:

The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

“We REALLY should have updated the 14th amendment when we passed the 19th amendment.”

Not just the 19th, the 26th as well.
It’s kind of interesting that neither the 19th nor the 26th (lowers the voting age to 18) amendments contain modifications of 14A.2 or equivalent provisions.

“

[ReaderY]

Should states that have appointed rather than elected judicial and executive officers have their representation canceled?

[MatthewSlyfield]

"...when the right to vote at any election..."

There's no right to vote in an election that doesn't exist.

[Brett Bellmore]

I have to say that I'm not happy that they don't even bother making a show of enforcing that clause, even if only to issue a report saying only a trivial number of people had their right to vote denied, so it had no effect on the resulting apportionment.

Their specific complaint had to do with people who still had a right to vote, but who simply didn't bother doing what was necessary to exercise it. Which is hardly the situation that clause was written to deal with.

[MatthewSlyfield]

There are numerous problems with this lawsuit. Among others, they sued the wrong parties. Absent appropriate legislation from Congress the Census Bureau and the Department of Commerce have no authority to enforce 14A.2.

As to not making a show of enforcing 14A.2, that would be both legally and politically difficult.

Why? Because 14A.2 speaks explicitly about denying the right to vote to “male inhabitants of such State, being twenty-one years of age”. Neither 19A (right to vote for women) nor 26A (right to vote for age 18-20) contain either equivalent provisions or an explicit modification of 14A.2.

Also how would you calculate the reduction as 14A.2 says “shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.”?

You are stuck with either only counting males 21 or older or arguing that one amendment modified another by mere implication.

14A.2 can not be enforced today on it's plain text without violating both 19A and 26A.

[Krenn]

Speaking of 12-person Juries, I'm still hoping that someone will eventually try a system of TWO 6-person juries, instead of ONE 12-person jury.

Both 6-person juries would have to reach the SAME conclusion for a conviction to be binding. I really want to see how often they would disagree with each other. It would be very important data on exactly how precise and repeatable our legal system really is.

[Stupid Government Tricks]

I'd like to separate all 12 into individual rooms and see how close they all come. Eliminate that peer pressure.

[Noscitur a sociis]

It would be very important data on exactly how precise and repeatable our legal system really is.

Apologies if I'm being dense, but... why?

[Krenn]

Let's say that some state law tries very hard to make clear the legal distinctions between, say, four different kinds of manslaughter. To most lawyers, it all makes perfect sense. To most other people, it's at least a little confusing.

A certain prosecutor always charges defendants with the WORST kind of manslaughter, and then includes the other three lesser kinds of manslaughter as lesser included offenses. In that State, the laws allow him to charge things that way.

Now, in THEORY, the whole idea BEHIND our current legal system is that the judge, and the prosecutor, and the defense, and the witnesses, working together, will give the jury all the information they need in order to understand how the law actually works, and what the witnesses say actually happened, and to follow all the procedural rules for when a witness is or isn't "impeached", and in THEORY, the Jury will always understand all of those issues, and will always obey instructions about what to disregard, and future appellate judges will always be able to tell which mistakes in trial procedure were 'harmless', versus which ones might actually have tainted the jury.

But the big assumption behind all of that.... is that juries are fundamentally fair, and predictable, and orderly, and DON'T just make random decisions based on how good their pizza is and whether or not the Jury Forewoman is really cute or not.

If we had two separate juries, who watched the same trial, but were never allowed to talk to each other, and delivered two separate verdicts...

And if in one hundred test cases, 40 verdicts were SLIGHTLY different from each other, and 10 verdicts were DRAMATICALLY different from each other...

That would imply that half the time, either the courtroom is incompetent at talking to juries, or the Juries are being fundamentally slightly random no matter how they're talked to.

That would be a very important fact about juries which we've always suspected MIGHT be true, but we've never had good NUMBERS for. Now we would. It would be exactly as important as, say, the invention of DNA testing making it possible to go back in time and prove how many past rape or murder convictions were of defendants who were now provably innocent in actual fact. The question of whether the DNA-proven error rate in our court system is 1 in 10,000 or 1 in 100 is ALSO a very important data point on how good our justice system is, really.

Data points on exactly how good juries are at following instructions and doing their jobs would be very useful for all sorts of poly-sci and criminal-justice and legal-procedure debates. Maybe some of the rules for how to 'properly' instruct juries could be proven to NOT MATTER, or to matter a very great deal. Maybe Jury-pairs who always get "type A" instructions are 99% likely to return the SAME verdict, but Jury-pairs who always get "Type B" instructions are only 90% likely to return the same verdict. That's important knowledge we didn't have before.

[Dr. Ed 2]

A better test would be on the definition of "peers" meaning what it de-facto meant in 1789 -- before suburbia and regional polarization.

No Republican is ever going to get a fair trial in DC today, guilty or innocent, it is not going to be a fair trial. Conversely, the case can be made that jury nullification precludes the prosecution of Black defendants in certain urban areas, e.g. Baltimore.

And the other question involves the single sentence rule -- that any criminal offense ought to be articulateable in a single sentence without commas -- i.e. "didn't pay his taxes" or "gave information to the Chinese." Donald Trump may have been convicted of 34 felonies, but other than being unpopular, can anyone tell me exactly what they are?

[Noscitur a sociis]

A better test would be on the definition of “peers” meaning what it de-facto meant in 1789 — before suburbia and regional polarization.

The Constitution, of course, doesn't say a word about "peers"—but does contain a requirement that trials be held and juries be drawn from the district where a crime happened.

And the other question involves the single sentence rule — that any criminal offense ought to be articulateable in a single sentence without commas — i.e. “didn’t pay his taxes” or “gave information to the Chinese.”

What question do you think is raised by a "rule" you just made up?

Donald Trump may have been convicted of 34 felonies, but other than being unpopular, can anyone tell me exactly what they are?

Trump was convicted of making and causing other people to make false entries in his organization's records for purpose of concealing criminal activity. This information isn't exactly hard to come by.

[Bwaaah]

If “repeatability” is your question, wouldn’t two 12-person juries be the test? Still, I doubt the practical value of that test. (I, like Noscitur a sociis, am feeling kind of dense about this.)

[Krenn]

Yeah, two 12-person juries would arguably be the better experiment, especially short-term, but I'm trying to keep costs down long-term. We could try both systems, see if it makes a difference.

[Dr. Ed 2]

It also raises an interesting question relative to jury nullification.

If the jury thinks he is crazy, what would happen if the jury simply voted to acquit and stated this as the reason why.

"We find him not guilty because he is crazy."

[David Nieporent]

As an empirical matter, has something that Dr. Ed has labeled as an "interesting question" ever actually been an interesting question?

[Brett Bellmore]

Of course this is an interesting question. It's pretty clear that the jury could do this, and couldn't legally be sanctioned for doing it. I am curious how the court would respond. Presumably once the jury has already issued their verdict it's too late to declare a mistrial and seat an acceptably ignorant jury. But would the court see it that way?

[Dr. Ed 2]

I went one step further than that -- presuming that the jury explicitly stated "we find him not guilty because he is mentally ill", could the court then use that finding to civilly commit him to a psych hospital?

For example, using Massachusetts law as an example: 123 MGL 12A reads, in part: "... a police officer who believes that failure to hospitalize a person would create a likelihood of serious harm by reason of mental illness may restrain such person and apply for the hospitalization of such person for a 3-day period at a public facility or a private facility authorized for such purpose by the department."

221 MGL 70A says "Court officers and those authorized to act as court officers within the judicial branch may perform police duties and have police powers in or about the areas of the court to which they have been assigned."

So could the judge use the jury's finding that the defendant was crazy as ground to order his court officer to haul said defendant off to the psych ward?

[Noscitur a sociis]

So could the judge use the jury’s finding that the defendant was crazy as ground to order his court officer to haul said defendant off to the psych ward?

No.

Thanks your assistance with another round of incredibly easy answers to remarkably stupid questions.

[Burkhard]

Scotland calling: The CORRECT number of jurors is 15, of course

[Stupid Government Tricks]

#13: "Dissent: It's $63."

That attitude ("it's so little!") always annoys me. It's $63 for the city too, it works both ways.

Kid coming on my ship in the Navy would never make any effort to give the nickle change when buying the paper (Navy Times?) with a quarter. Ask him for it and he'd whine, "It's only a nickle!" and I always responded, "Then sell it for 15 cents." If the kid had offered the nickle change, I'd have told him to keep it. But to assume I don't want it ... nope, sorry kid, it's only a nickle to you too.

[Drewski]

That NC case has to be a personal favor to a donor, right? For all Ross's bloviating in the blurb, the courts each applied intermediate scrutiny in a very typical fashion and found that, indeed, one of the most closely-regulated professions in history can be regulated. IJ argues that maps are speech, strict scrutiny (or, alternatively, heightened intermediate) applies, and the law fails. There's no way they're doing this one to rile up their donor base, and certainly they aren't playing to win, so I'd guess they're trying to please a single, large donor that just hates land survey licensing laws.

[Dr. Ed 2]

Maps, per se, ARE speech. It's the seal that you crinkle onto the side that says "registered something" that needs the license.

[Bwaaah]

I got stuck in an iterative loop on "bloviating."

[Dr. Ed 2]

Regarding the DC cop who called for all Jan 6 protesters to go to jail, I routinely call for the use of snow plows (and wing plows) to clear protesters off highways -- it doesn't mean that I expect the state to do it.

After BLM's "summer of love" and seeing no grand jury prosecution for that, why should he have expected to see one here?

Imagine if he had written something like this: "If the incompetent schmucks in the Justice department ever decide to do their job, those pictures you have posted could come back to haunt you.

That means he thinks there IS (as opposed to should) going to be a grand jury?

[David Nieporent]

After BLM’s “summer of love” and seeing no grand jury prosecution for that, why should he have expected to see one here?

You mean aside from the fact that many thousands of people were prosecuted for their actions during BLM protests?

[Dr. Ed 2]

Name them.

[Magister]

Here are the first two Google results searching people prosecuted for BLM riots.

https://apnews.com/article/records-rebut-claims-jan-6-rioters-55adf4d46aff57b91af2fdd3345dace8

https://www.justice.gov/opa/pr/over-300-people-facing-federal-charges-crimes-committed-during-nationwide-demonstrations

[Krayt]

Is talk therapy "speech" within the meaning of the First Amendment? The Ninth Circuit has said no, and the Eleventh Circuit has said yes. This week, the Tenth Circuit weighs in, siding (over a dissent) with the Ninth Circuit. Last time a petition went up on this issue, three Justices indicated they'd have granted cert., so this is one to watch.

Some of these therapies are sketchy, but the purpose of speech is to change the behavior of others. Ergo...

[Dr. Ed 2]

"And regarding the other officers, they were acting outside the scope of their employment, so plaintiffs' state-law tort claims can proceed against them individually (in federal court) without the federal gov't substituting itself as the defendant (which is the outcome plaintiffs sought)."

Federal has deeper pockets.

But if they were prison guards training for a situation that they theoretically could encounter (hence the rationale for training for it), how could it possibly not be construed as being part of their employment -- and doesn't it speak volumes to what they would actually do in a real life situation?