Short Circuit: A Roundup of Recent Federal Court Decisions

BB guns, late deliveries, and a defaulting guard.

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

New on Unpublished Opinions, IJ's roundtable podcast: public interest attorneys and social media, specialized courts, and judges wearing wigs.

• Narrow ruling (for now) in buzzy nondelegation case. Issue: Does FINRA, a private corporation that stockbrokers must join, wield too much power by expelling members without any government oversight? Stockbroker Alpine Securities: Absolutely—FINRA can't expel us! (Even if our alleged client fees are outrageous.) D.C. Circuit: We'll meet you halfway—no expulsion until SEC review, but FINRA hearing moves forward. Partial dissent: Majority's partial injunction "is a victory for the Constitution" but doesn't go far enough. Private regulatory hearings without government oversight are flat-out unconstitutional.
• Fans of the book Planet Narnia will be familiar with the theory that C. S. Lewis' seven-part Chronicles are actually about the seven medieval planets, even though Lewis literally never told anyone about it and no one supposed it until decades after his death. Well, a Short Circuit reader has a similar theory about Harry Potter and this First Circuit appellate-waiver opinion by Judge Selya. The clues: "transmogrify" (self-explanatory), "umbrage" (Dolores Umbridge), "paint the lily" (Harry's mother), and the fact that the defendant/appellant is named Ronald (Ron Weasley). We report, you decide.
• Guatemalan woman seeks asylum, claiming gang members killed her family and were targeting her next. Immigration judge: Asylum denied. Board of Immigration Appeals: Appeal dismissed—you filed a day late. First Circuit: Remanded. This was FedEx's fault for delivering later than promised. BIA's own precedent says this, yet the Board "inexplicably" ignored it.
• Inmate at New York's Fishkill Correctional Facility sues five guards, alleging that they assaulted him while he was having a seizure. Guards 1–4 argue administrative exhaustion. Guard 5 raises the same affirmative defense but then misses his deposition and stops communicating with his lawyers. District court: Guard 5's answer is stricken, a default judgment is entered against him, and the inmate is awarded $50,000. But as for Guards 1–4—yeah, the exhaustion defense is sound, and the inmate's case against them is dismissed. Second Circuit: Notwithstanding Guard 5's poor behavior, we apply the "longstanding principle" that a default judgment cannot be inconsistent with a judgment on the merits. But wait! Is a default judgment against a defendant whose affirmative defenses have been stricken as a sanction actually inconsistent with a judgment in favor of co-defendants whose affirmative defenses were, um, not stricken? Second Circuit: Did we stutter?! The inmate loses!
• Scientific article about the withdrawal of COVID sequencing data by the NIH leads to a flurry of FOIA litigation during which the NIH blows deadlines, withholds items, suffers blows in court, and finally turns over several hundred pages of documents, many of them redacted. The matter winds its way to the Fourth Circuit, where the plaintiffs demand justice for the administrative delays. And yet, "there is no standalone cause of action for a violation of FOIA deadlines."
• Allegation: Norfolk, Va. cop arrests man on a trespassing charge. Cop lies on the stand and man is convicted. He appeals, uses a recording to show cop lied—and wins. Two weeks later, man is seriously injured in a car accident. Norfolk officers arrive and recognize him as the one who gave "a ration of s**t." Even though the other driver's BAC is north of 0.30, they falsely report the man as at fault. Can he sue the officers for retaliation? District court: No harm, no foul. Fourth Circuit: Being believed as at fault for a serious accident is kind of a big deal. Undismissed.
• Mississippi: Under state law, medical-marijuana dispensaries can lawfully sell medical marijuana (and we will gleefully tax the proceeds), but, simplifying slightly, they can't advertise that they sell medical marijuana. Heroic dispensary: But since you've said it's legal for me to do the selling, it sure seems like a First Amendment violation to stop me from saying I'm doing the selling. Fifth Circuit: No, no, no. Because, you see, it's separately illegal under federal law for you to sell the "marihuana." So it's totally fine for Mississippi to legalize your conduct while prohibiting your speech about that conduct, see? (This is an IJ case, and for our part, we see things . . . differently.)
• On habeas review, a prisoner convicted of rape in Mississippi state court argues that his trial and direct-appeal lawyers provided ineffective assistance by failing to assert his insanity defense. Has the prisoner overcome the Antiterrorism and Effective Death Penalty Act's relitigation bar by showing that the state court's adjudication resulted in an unreasonable application of clearly established federal law? Fifth Circuit (en banc, over a dissent): Nope. The prisoner failed to preserve his insanity defense in the trial court, and failing to raise an unpreserved claim on appeal is not ineffective assistance.
• The federal government grows worried about Tornado Cash, "an open-source, crypto-transaction software protocol that facilitates anonymous transactions." Among other things, it's used by North-Korea-linked hacking groups to launder their loot. But can Tornado Cash itself be sanctioned, and not just the bad dudes using it? Fifth Circuit: The contracts for the cryptocurrency aren't "property" as that term is used in the International Emergency Economic Powers Act, so the feds' authority is lacking. (Note: Although perhaps they wouldn't change the result, someone in the crypto biz has questioned the accuracy of some of the techy factual details the court provides.)
• Did a Centralia, Ill. man convicted of various drug and gun offenses constructively waive his Sixth Amendment right to counsel when he dismissed his third appointed counsel and represented himself at his own sentencing hearing? Seventh Circuit: Sure did. The district court clearly warned the man that he would represent himself pro se if he dismissed yet another appointed counsel and failed to get another attorney by the hearing. Conviction and sentence affirmed.
• Hawaii Disability Rights Center sues the state's Department of Education and Department of Human Services, alleging that, by failing to provide Applied Behavioral Analysis for students with autism, the state is violating a host of federal laws. The district court dismisses the case for failure to exhaust administrative remedies. Ninth Circuit: That's correct for claims under the Individuals with Disabilities Education Act (, but plaintiff wasn't required to exhaust IDEA remedies for its claims under the ADA, the Rehabilitation Act, or the Medicaid Act.
• Oklahoma City teenagers enter a vacant house and are playing with BB guns. A concerned neighbor, thinking that a burglary is underway, calls the police. Police show up and, within minutes, shoot one of the boys twice. He survives and sues for excessive force. Officer: He was holding what looked like a gun when I shot him. Plaintiff: I was holding my hands up, and my BB gun was inside the house. Tenth Circuit: And at this stage that dispute of fact is enough to defeat qualified immunity.
• Laramie, Wyo. high schooler is decidedly and loudly not happy with a mask mandate in Sept. 2021. She organizes walk-outs, carries signs in front of the school, and refuses to wear a mask, leading to her suspension and then trespassing charges when she comes to school anyway. She brings state and federal claims in state court, the case is removed to federal, and then thrown out on standing, partly due to her injuries being "self-inflicted." Tenth Circuit: That's not how standing works. Case undismissed.
• Meanwhile, in breast-bearing news, the Seventh Circuit has quietly clarified (p. 15) that it was referring (p. 15) to breasts being bared, not borne (and, due to the timing of the quiet clarification, we believe it was the result of our intrepid reporting).
• In other bear-related—albeit given the timing less-likely-due-to-us (although it's close)—news, the First Circuit has loudly clarified that the murder of Lizzie Borden's father and stepmother was grisly, not grizzly.

Comments

[JoeFromtheBronx]

The last case involves Lizzie Borden, coffee, ghosts, and trademarks. A coffeehouse has an interesting sign:

Its storefront signage displays the words "Miss Lizzie's Coffee" between a cup of coffee and a stylized hatchet spewing blood. A second sign, with similar accoutrements, advertises Miss Lizzie's as "The Most Haunted Coffee Shop in the World!" The hatchets on both signs include handles and dramatic blood splatters.

https://law.justia.com/cases/federal/appellate-courts/ca1/23-2000/23-2000-2024-11-15.html

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

Here is a picture
https://misslizziescoffee.com/
Always great for lawyers and politicians to have something to distract from actually doing their jobs.

Bet you could put an abortion facility next to a Church because , hey, freedom of expression.

I saw a sign when I lived in Memphis , front window : All unattended children will be sold into slavery"
And only offensive people got offended.

[JoeFromtheBronx]

The issue was not just "offense" but concern that a trademark was being violated. The argument was rejected.

I suppose a health facility, which might include on some floor abortion services, next to a church is possible. Many religions support abortion rights, especially in specific cases, anyhow.

It would likely be a zoning question. A church, like "crisis pregnancy centers" sometimes do, might even want to be next to one to "save souls" or whatever.

[Davy C]

>So it's totally fine for Mississippi to legalize your conduct while prohibiting your speech about that conduct, see?

Mississippi is not capable of legalizing the conduct in question, as there is a federal law prohibiting it.

It seems ridiculous to me to argue that a state can't ban a shop from advertising something which is illegal under federal law. You might as well say that Illinois cannot ban someone from advertising a hit that would take place in Ohio, because it is not otherwise illegal under Illinois law to kill someone in Ohio. No, that argument doesn't work. It's illegal in Ohio where the act will take place, so the act is illegal, so Illinois can ban any speech in Illinois facilitating that illegal act.

Similarly, marijuana is illegal in the US thanks to federal law, so Mississippi can ban talking about any selling of marijuana which will violate that federal law. And Mississippi, along with any dispensaries it contains, just so happens to be in the US. You don't like it, repeal that federal law. Until then, it is *not* legalized.

[Currentsitguy]

There are plenty of things illegal under Federal Law that are either explicitly legal under state law or are simply not addressed. Generally speaking state and local authorities are not in the federal law enforcement business.

[Noscitur a sociis]

Okay? What does that have to do with the price of weed in Tupelo?

[Krayt]

If the feds still consider it illegal, presidential promises to not prosecute notwithstanding, then the feds should be in the business of prosecuting advertising of illegal items for sale.

I always thought if it as it's not illegal for a random person to say drugs are sold in that house over there, unless said person is a salesman for them.

[Lennyk78]

Most Americans dislike that federal law, just like they dislike uncontrolled third world migration, but they both continue on.

[Brett Bellmore]

"FINRA, a private corporation that stockbrokers must join, "

This strikes me as utterly self contradictory. At the point where the government requires you to join an organization, it ceases to be 'private'.

[Bwaaah]

It seems overreach to cast the corporation as not being "private" simply because the government forces people to "join" it. For example, if, as a condition of reinstatement of driving privileges, a court orders a person to enroll in a defensive driving program administered by a private corporation, should that change the status of the driving school?

It sounds like a delegation problem, responsibility for which falls squarely on the government. At such time as the government requires a person to participate in the proceedings of a private enterprise, the government should become responsible for all actions of the enterprise that affect that person. (Don't throw me to the wolves and then pretend you're not the head of the wolf pack; for me, you are.)

[Lennyk78]

Yes, if a court orders you to enroll in a defensive driving program, and that driving program is fully complicit, I do think that driving program becomes a state actor.

[Brett Bellmore]

The courts can require all sorts of things that Congress can't do by statute, when dealing with people who've been convicted in a trial.

For instance, the courts can look you up in a room, or even have you executed, while Congress can't do that by statute.

So, it's genuinely not the same when the courts order it, and when Congress does.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

When a goverment requiers you to join an organziation without questions of "do you have any other group you could join instead" then it is probably trying to force certain kinds of people out of the stockbroker trade. Else what is gained. Can you lbe a teacher without joining a union. I have taught for years with no uniion, am I in the eyes of the law not worth a stockborker's contempt

[John F. Carr]

Without having read all the briefs, I think I have to agree with the Fifth Circuit in the marijuana advertising case. The First Amendment does not protect advertisements for illegal conduct. Strict scrutiny does not apply. We're back to a rational basis analysis. There is a rational reason to restrict advertising of a legal product. People might be tempted to unnecessarily use the devil's weed. Marijuana, the state says, is good for people with medical problems but not good for people who simply want to get high. It's not just a conceivable rational basis of the kind that gets IJ podcasters worked up. It's a genuine reason. "Medical" marijauna is a joke, or turned into one in some states. The state is pretending that marijuana is medicine.

If I'm on the Fifth Circuit, the state wins. Put me on the Supreme Court and I'm itching to overturn Gonzales v. Raich.

If marijuana ever gets federal approval for marketing as a medicine but not for recreational use, the ads are going to look like other drug ads. Ask your doctor if Nelsonotol is right for you. We can't tell you what it is.

[Peter Kreeft taught me LOGIC, BEWARE !!!!!!!]

But if you are advertizing an illegal prodcut the adveftisement is Exhibit A whan an agent goes in and sees the acutal illegal subsance sold. I would think you would want to encourage this; it makes police work so much easier.

[Harvey Mosley]

Can the state ban advertising the sale of a "product that complies with state law XYZ" if state law XYZ allows the sale of marijuana?

[ReaderY]

Congress and the State of Mississippi are prohibiting two different things. The federal governent is prohibiting only interstate commerce in marijuana, while Mississippi law covers intrastate conduct, commercial or nor.

The fact that there may be some overlap between the two does not make them the same for constitutional purposes. Marijuana itself is not constitutionally subject to federal law. Only interstate commerce in marijuana is. But marijuana itself is subject to Mississippi’s general police power.

So the fact that something is illegal under federal law does not decide the question of state law. They are two different sovereigns with two different powers. The fact that the powers may have some overlap, even considerable overlap, does not make them identical.

[Noscitur a sociis]

Congress and the State of Mississippi are prohibiting two different things. The federal governent is prohibiting only interstate commerce in marijuana

That is incorrect. Federal law prohibits any distribution, 21 U.S.C. § 841, or possession, 21 U.S.C. § 844, of marijuana. These laws are justified as an exercise of the interstate and foreign commerce power. But unlike many federal laws, they do not require any showing that any specific act of distribution or possession had any specific connection to interstate commerce.

[ReaderY]

It’s still derivative interstate commerce power, not general police power. It’s not the same thing. Although I’m skeptical of the line of cases that say states can’t prohibit solicitation to do something while permitting the thing itself, they’re there. And I think the federal probibition is irrelevant to the analysis ofehat Mississipi can do.

[RoyMo]

That an officer like McLanahan is still employed as a peace officer in Norfolk after being caught committing perjury and the committing retaliation by falsifying an accident report is a big part of what iscwrong with this country.