Short Circuit: A Roundup of Recent Federal Court Decisions

Equity training, intrusive questions, and a sorry mofo.

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

New case! Last year, Macon-Bibb County, Ga. officials demolished IJ client Eric Arnold's house without any notice or any kind of court proceeding—one of 800 houses to be demolished in the county over the last three years as part of a secret code enforcement program that lacks the most basic due process safeguards. Eric was renovating the house, which he planned to give to family; and while there was still work to do, the yard was neat, the exterior was clean, and it was in vastly improved shape compared to when he bought it. Click here to learn more.

New case! In 2022, a Broward County, Fla. officer arrested IJ client Jennifer Heath Box on a warrant for a woman with a somewhat similar name but completely dissimilar age, address, SSN, driver's license #, and much, much more. (It turned out officers in Texas had mistakenly put Jennifer's driver's license photo on the warrant.) She spent three days in jail in miserable conditions that included a strip search, freezing temperatures, and a male inmate who repeatedly tried to get into her cell when she was alone. "[The officer] had so much evidence that he had the wrong Jennifer, and he either ignored that evidence or deliberately misled other Broward County officials," says IJ Attorney Jared McClain. "We must be able to hold government officials accountable when they overlook glaring evidence and arrest the wrong person." Click here to learn more.

1. Ecuadoran national challenges his conviction for illegal reentry into the United States on the grounds that his initial removal was unlawful and the prohibition on reentry was enacted for racist reasons. Second Circuit: His initial removal was lawful. And though the law's legislative history contains some shocking comments—one legislator observed in 1952, "though I am not a follower of Hitler . . . there is something to it"—those views can't be attributed to all of Congress.
2. "Ghislaine's in prison?!" Second Circuit: And there she will stay.
3. Fifth Circuit: Judicial estoppel means if you say the trust agreement was a contract for purposes of the motion to dismiss, you're stuck with that at summary judgment. Dissent: Speaking of holding people to what they say, the district court never said anything about judicial estoppel, so why should we?
4. NFL Hall of Famer and former cheesehead Brett Favre took great offense to a few phrases his fellow Hall of Famer Shannon Sharpe uttered on a radio show after news broke that Favre was in hot water over potentially misusing public funds. One was: "The problem that I have with this situation, you've got to be a sorry mofo to steal from the lowest of the low." Sorry mofo or not, Favre sues Sharpe for defamation. District court: That's all "mere rhetorical hyperbole." Case dismissed. Fifth Circuit: Perhaps, but we're gonna affirm because Sharpe was either expressing opinion or just relying on "publicly known facts."
5. University of Tennessee pharmacist student posts statements to social media with accounts that never identify her as a student at the school. Nevertheless, someone at school finds out and takes offense, calling them "sexual," "crude," and "vulgar." She is reprimanded twice, and the second time a board recommends she be expelled (although she successfully appeals). Did school officials unconstitutionally retaliate based on the content of her speech? Sixth Circuit: She's pleaded a claim and enough to get past qualified immunity at this stage.
6. Springfield, Mo. school employees are compelled to attend "equity training" where they must complete online quizzes parroting the district's views, even if they disagree with them. When they express views like "Kyle Rittenhouse acted in self-defense" they are told they are "wrong" and "confused." Several employees sue, alleging violation of their First Amendment rights. District court: That's not only wrong, it's so frivolous that you owe attorneys' fees to the school district. Eighth Circuit: It's wrong, but it's not that wrong.
7. Ornery Oregon state senator is made to give 12 hours' notice before he enters the state capitol in 2019 after making threatening remarks. He sues for First Amendment retaliation, and after a successful trip to the Ninth Circuit (2022), he wins in the district court. Ninth Circuit (2024, unpublished): Who's to say whether he's right or wrong, but qualified immunity and standing doctrine together make this rabblerouser's claims kaput.
8. At George Floyd protest in Salem, Ore., officer allegedly fires rubber bullet into crowd, hitting a protester in the eye (ending her promising collegiate athletic career). Officer: I didn't shoot into the crowd; she must have been injured by another protestor. Jury: Don't believe that; pay her $1 mil. District judge: Qualified immunity! Ninth Circuit (unpublished): No QI; pay up.
9. For those looking for a Title VII case that tackles "sex-plus" (also known as "intersectional") claims as well as mixed-motive theories of liability, there's a lot going on in this Eleventh Circuit case, even though the older women lose their discrimination and retaliation cases.
10. Allegation: Georgia state police pull over truck driver and detain him for 91 minutes. He's asked intrusive questions about his religion, and his truck was searched without consent, all because he was on FBI's No Fly List—even though the FBI notice told the officers they shouldn't detain somebody based on presence on the list. Eleventh Circuit: The notice confirms what should have been obvious: there wasn't reasonable suspicion (much less probable cause) to do any of that. No qualified immunity.
11. Minister is dismissed and excluded from Polk County, Ga. jail's volunteer ministry program following a dispute with jail officials about baptism. The minister sues two jail officials, alleging that his exclusion from the program was retaliatory and based on the officials' unbridled discretion, in violation of his free-speech rights. Eleventh Circuit (over a partial dissent): The minister was engaged in protected speech and the officials' unbridled discretion to deny participation in the program violates the First Amendment. No QI for the officials on either claim. Reversed and remanded.
12. Are city council meetings in Homestead, Fla., a traditional public forum, a limited public forum, a nonpublic forum, or some different fourth thing? Eleventh Circuit (en banc): Our case law got too far out of step with Supreme Court precedent, but we now confirm that it's a limited public forum. So the future exclusion of the plaintiff—a self-styled "citizen activist" who previously got thrown out for flipping the bird, grabbing his crotch, and cursing—must be viewpoint neutral and reasonably tailored.
13. In which the Eleventh Circuit's Judge Newsom voices well-founded "suspicio[n] of court-concocted abstention rules that, in substance if not form, deprive federal courts of jurisdiction that the Constitution expressly authorizes and that Congress has expressly vested." Sadly, in dissent.
14. And in en banc news, the Ninth Circuit will not reconsider its decision that the Suquamish Tribal Court had subject-matter jurisdiction over the Tribe's suit for breach of contract concerning its insurance claims for lost business and tax revenue and other expenses arising from the suspension of business operations during the onset of the COVID-19 pandemic. Sixteen judges issue a statement defending the denial, while six dissent. Somewhere, Neil Gorsuch starts salivating.

Victory! Friends, if you've been reading this humble newsletter for some time, you will no doubt remember IJ's three separate lawsuits against the FBI for raiding a Beverly Hills, Calif. safe-deposit box business, lying to a judge, and seizing hundreds of millions of dollars of assets from box owners who were not accused of any crime. Earlier this year, in Case #1, the Ninth Circuit ruled that the raid violated the Fourth Amendment. And this week, in Case #3, the feds decided to throw in the towel after their incompetent property-management practices (described as "malpractice" by one FBI evidence technician) came to light. Which means IJ client Don Mellein will be compensated for 63 gold coins that went missing after being left unsecured. (Moreover, a judge has ordered the gov't to pay $21k for stonewalling discovery.) Click here to learn more. And stay tuned for updates on Case #2, which is pending before the D.C. Circuit.

Comments

[ReaderY]

I think the 11th Circuit’s analysis designating a city council meeting as a limited public forum and proceeding under limited public forum criteria still gets it wrong. A government tribunal, legislative or judicial, is not simply a special kind of public forum. It can impose rules beyond ordinary public forum rules that simply limit the subject matter of speech. It can also impose order, decorum, and other rules designed to ensure that the tribunal can proceed with its business. To that end, a city council can impose the same kinds of limitations on speech that judges can when they manage their courtrooms. There is no reason the first amendment should contain special exceptions for the judicial branch. If legislators have to live with first amendment limitations on their ability to maintain order and decorum, judges should to. And if judges can impose a rule in their courtrooms, legislatures ought to be able to impose the same at their meetings. What’s sauce for the judicial goose ought to be sauce for the legislative gander, so far as the First Amendment is concerned.

I think it’s pretty clear a judge would have power to discipline or expel someone who did in a courtroom what the plaintiff did before the city council. So I don’t helieve he has a first amendment claim.

He may have other claims. He might not have gotten sufficient notice he wouldn’t be allowed back to support an arrest for e.g. trespass. Perhaps most importantly, what he did, while sufficient to support kicking him out of the city council and perhaps an arrest for trespass if he came back (and was given adequate notice), may not have amounted to disorderly conduct. What constitutes disorderly conduct is based on what’s permitted in an ordinary public place, not the more restrictive standards of a government tribunal. While he might have been guilty of a trespass, he may well not have been guilty of the crime charged.

But nonetheless, because a tribunal can impose more restrictive decorum/order rules than a general (or limited) public forum, the city council’s action did not violate the first amendment, whatever other claims the plaintiff might potentially have.

[Rossami]

I disagree. Pretty strongly. The right to speak at a city council meeting is inherent to the right to seek redress. While there may be opportunities for the council to operate in closed session for some discussions (a right which is not in dispute), there is no justification whatsoever for viewpoint-based discrimination in the time explicitly scheduled for public comment.

Even judges don't have the unbridled discretion you describe. They may act to maintain order and decorum but only within the limits of the court's proper role. A judge might have the power to discipline or even expel a random courtwatcher but if a judge arbitrarily expelled a witness for mere incivility, that would be pretty clear grounds for a mistrial.

All of this is besides the point. Even a city council has the right to establish reasonable restrictions for time, place and manner - this council just couldn't be bothered to do that. So when an "activist" took advantage of the lack, the council was left with no leg to stand on.

[TwelveInchPianist]

"A government tribunal, legislative or judicial, is not simply a special kind of public forum."

I'm not sure what this means, other than that you disagree with the concept of a limited public forum.

If a judge were to create a limited public forum in his courtroom (by, say, inviting members of the public to speak for three minutes on matters pertinent to the court), I don't see why the judge wouldn't have to follow the rules for a limited public forum.

[David Nieporent]

I think it’s pretty clear a judge would have power to discipline or expel someone who did in a courtroom what the plaintiff did before the city council. So I don’t helieve he has a first amendment claim.

Not only is your argument that a city council meeting and a courtroom are the same thing inherently wrong, but your comment here is also based on a factual misunderstanding. He did not sue because he was kicked out of a meeting for misbehaving. He sued because he was banned from future meetings for past misbehavior. A judge could indeed hold someone in the courtroom in contempt for misconduct and punish that person, including perhaps by having him removed from the courtroom. A judge could not, however, order that the person not be allowed in his courtroom in the future.

It can impose rules beyond ordinary public forum rules that simply limit the subject matter of speech. It can also impose order, decorum, and other rules designed to ensure that the tribunal can proceed with its business.

And here you're just confused. Government can impose "order, decorum, and other rules" — e.g., time, place, and manner restrictions — on public forums, particularly "special kind of public forums." That's what a limited public forum is.

[Malika]

So, the Springfield case. If the facts were as presented that presentation is the epitome of why "DEI" is attacked so much, whatever outfit did that presentation should have been named (to be shamed) in the opinion...So, is the idea that if the employees had, say, walked out and been docked the pay or credit then they would have standing? Because, if so, ugh.

[Rossami]

According to yesterday's more in depth article, yes, that's the case. The judge reasoned that because no one stood up to the bully and never took the risk of being sanctioned, there was no harm, therefore no standing.

[Jerry B.]

Macon-Bibb County is majority Black and voted over 60% for Biden in 2020, so it’s not MAGAs tearing down the guy’s house.

[verochkax]

More likely that majority black towns tore down the house of a white man out of racial spite.

[Noscitur a sociis]

Many people are saying!

[David Nieporent]

Voltage!

[Krayt]

Second Circuit: His initial removal was lawful. And though the law’s legislative history contains some shocking comments—one legislator observed in 1952, “though I am not a follower of Hitler . . . there is something to it”—those views can’t be attributed to all of Congress

Some time circa 2050: “History contains some shocking comments — one hundred years ago, a legislator observed in 1952, “though I am not a follower of Hitler . . . there is something to it” when passing a law against immigrants. Then, another shocking comment, this one a mere 25 years ago, the Second Circuit said about that very law, “those views can’t be attributed to all of Congress, so the law’s Okayay!”.

[TextFirst]

What's the alternative? If one Congressman votes for a law for a bad reason, the entire law is invalid? Very little would be left on the books if we took that approach, there's at least a couple dozen crazy congresscritters at any given time.

[Krayt]

I’m very much against the judicial branch deciding policy contra the legislature, outside constitutionality, which is a big enough can of worms as it is.

But assuming blocking races for racist reasons is unconstitutional, the courts are usually good at rooting out real, First Amendment-violating speech and religious violations, regardless of surface argument.

I think we can all thank goodness America is well past that era.

[Michael P]

courts are usually good at rooting out real, First Amendment-violating speech and religious violations, regardless of surface argument.

What does that have to do with the price of tea in China?

To make the cases analogous, you'd need to look only at cases where courts review alleged 1A violations based on improper legislative intent, which are a very small fraction of all 1A cases. Typical 1A violations are based on misapplication of a broadly defensible policy, and facially overbroad policies are normally challenged quickly after enactment. I suspect there are so few cases where courts review decades-old laws for 1A violations that one cannot fairly say courts are "usually good at rooting out" such violations.

[ReaderY]

Prior to Dobbs, the 7th Circuit had struck down an Indiana law prohibiting sex-selection abortion on the grounds the constitution PROHIBITS imposing restrictions on decisions that the constitution commits to unfettered discretion.

Constitutionally, the United States government is to an immigrant exactly as a woman is, after Dobbs, to a fetus. Government can base its decisions on moral principles just as a woman can. But neither are REQUIRED by the constitution to abide by any particular moral principles.

Just as a woman can choose to abort a fetus based on race or sex, Government can choose to exclude an alien on the same grounds. Any reason a woman can have to abort a fetus (absent legislation), government can have to exclude an alien.

[John F. Carr]

The Second Circuit reminds us that non-prosecution agreements raised as defenses are construed according to the law of the circuit where the subsequent prosecution is brought, and not according to the law of the place where the agreement was made. This is important because some circuits say prosecutors in other districts are not bound by the agreement. If you fly a minor around the country dozens of US Attorneys in several circuits could prosecute you after the first one lets you get away with it. On the other hand, if you plead it down to following too closely then double jeopardy applies (or not) uniformly in all the federal districts.