Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

Rolodexes, rabbit holes, and challenge coins.

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: Does the Supreme Court want to overturn Kelo v. New London? We're asking them to overturn Kelo v. New London. Swear to heck. Click here to learn more.

New on Unpublished Opinions, IJ's roundtable podcast: Is a pun worth keeping if you have to explain it in a footnote? Plus, other weighty jurisprudential questions.

New on the Short Circuit podcast: UCLA's Joanna Schwartz and Kasia Wolfkot of the Brennan Center talk with IJ's Anya Bidwell about civil rights reforms at the state level.

1. Sometimes our creations escape our control—sometimes our monster pushes a little girl into a well or our dinosaurs eat the guy from Seinfeld—but this is not the case with Pennsylvania's Joint Underwriting Association, which, holds the Third Circuit, is purely a creature of the state and thus incapable of either asserting constitutional claims against its creator or (one assumes) devouring any beloved character actors.
2. Following a trial, jury finds that Pennsylvania prison guard twice sexually abused a prisoner. It awards $20k in compensatory damages for each assault, $25k in punitive damages for the first one, and $200k in punitive damages for the second. Guard: Maybe it was a different guard who did the assaulting. And the punitive damages are too punitive. Third Circuit: No and no. The jury could reasonably have concluded that you were the guy who did the assaulting. And given that you repeated your "egregious behavior," it sure seems like these punitive damages are needed to deter future wrongdoing. (Fun fact: The Pennsylvania Attorney General's Office appears to take a decidedly more . . . nuanced view of reprehensibility for prison guards found liable for sexual abuse ("Reprehensibility has to be considered on a spectrum . . . .") than it does for elderly widows facing forfeiture of their homes because their sons sold $190 worth of weed ("Including a claimant's culpability as a specific consideration in the [Excessive Fines Clause] balancing test is not only contrary to established precedent, it is illogical.").)
3. South Carolina ACLU wants to record and publish an interview with a death row inmate, but the South Carolina Department of Corrections forbids "personal contact" interviews with inmates, including those by telephone (exchanging letters is fine, though). ACLU-SC challenges the prohibition as a violation of the First Amendment. Fourth Circuit: The press has no special right of access to prisoners that is not enjoyed by the public generally, and the ACLU doesn't dispute that the inmate is unavailable to the public. Case dismissed.
4. This unpublished per curiam opinion from the Fifth Circuit—affirming a denial of qualified immunity—gives no hint of the outrageous allegations in the case (which involve the innocent plaintiff being tackled and hogtied for meeting the description "Hispanic male"). For the full scoop, you'll have to check out the district court opinion.
5. Maverick County, Tex. judge, who is presiding over a meeting of the county commissioners, orders resident removed for speaking out of turn (though it's unclear that she did). On the judge's say-so, the resident—herself a former county judge—is detained outside in the rain for three hours and then taken to jail, booked, and released. But wait! Was the arrest actually retaliation for her criticism of the commission? Fifth Circuit: Let's find out. The judge is neither protected by sovereign immunity, nor judicial immunity. And he doesn't even get to invoke qualified immunity because judges don't have authority—outside of their courtrooms—to hold people in contempt. You have to be operating within the scope of your authority to ask for QI.
6. Apparently the Fifth Circuit thinks some of their readers are so modern that they won't understand what a "rolodex" is without a footnote. Of course, discerning Short Circuit readers know that it is, as the court says, "a genericized portmanteau referring to a desktop card index used to record names, addresses, and telephone numbers." This is relevant to the court's conclusion that Section 230 does not immunize Salesforce in a lawsuit brought by sex trafficking victims where Salesforce provided services for Backpage.com. This is because Salesforce did not act as a "publisher" but instead did rolodex-type stuff. The court also footnotes Lewis Carroll to justify its use of the term "rabbit hole."
7. After a series of seemingly random shootings into homes in Detroit, the police chief announces that a man who open carries an AR-15 around the neighborhood is a person of interest. But the open carrier is not the shooter, and he loses customers and gets assaulted by private parties as a result of the announcement. Sixth Circuit (unpublished): There's no prior case like this. QI.
8. If a person repeatedly buys distribution-level quantities of drugs from a supplier, is that enough to show he has entered a "conspiracy" with the supplier to distribute drugs? Seventh Circuit (en banc): Yes, and in so holding we realign our circuit with the Supreme Court's precedent. Dissent: False! You need more than that to show intent to enter a conspiracy.
9. Bodybuilder "Chuck Diesel" sells a testosterone-boosting herbal supplement called Diesel Test. Then, a different enterprise, "Revolution Laboratories," starts selling a nutritional supplement called . . . Diesel Test. After disgruntled customers of Company B start mistakenly complaining to Company A, cease-and-desist letters and trademark-infringement litigation ensue, culminating in an award of $2.5k in compensatory damages to Company A, disgorgement of ~$550k and punitive damages of $900k ($300k each against Company B and its two owners, respectively). Seventh Circuit: This all checks out, not least because in comparing the ratio of punitive damages to the harm suffered, disgorgement amounts can count towards the harm-suffered part of the equation.
10. Nonpartisan legislative specialist in the clerk's office of the Missouri House sends a super-polite email in August 2020 to the Speaker of the House and the President Pro Tem of the Missouri Senate, requesting that they implement a mask policy to protect visitors to the capitol from COVID-19. Three days later he's fired. He sues for First Amendment retaliation. Defendants: It's a total coincidence; we actually fired him for poor job performance. Eighth Circuit: A jury disagreed, which wasn't unreasonable given his seven years of sterling performance reviews. Pay the man.
11. Pursuant to the Indian Gaming Regulatory Act (IGRA), Indian tribes located in Washington State are authorized to offer gambling (including sports betting) on their land by entering into tribal-state compacts. After Washington denies a (non-tribal) gaming company the right to engage in sports betting, the company sues, alleging that Washington's tribal-state compacts are unconstitutional. Are the tribes required parties to the company's lawsuit? Ninth Circuit: Indeed, but the tribes can't be sued because they have sovereign immunity. The company is out of luck. Dismissal affirmed.
12. After protest in 2017, Phoenix police officers sell/obtain/possess a "challenge coin" commemorating the events of the day that depicts a protestor being hit in the groin by a munition and that bears the inscription "Making America great again one nut at a time." Ninth Circuit: Immature. Distasteful. But of minimal relevance. The crowd was unruly, and using chemical irritants and flashbang grenades to disperse them was fine.
13. This en banc Tenth Circuit case has a little something for everyone. Bickering over en banc procedure. (The court sua sponte ordered it to be heard en banc after the appeal was briefed and argued at panel but before the decision issued.) A prosecutor who misconducted so egregiously that she was later disbarred. (Her rap sheet is long, including framing an innocent man of double murder who spent 23 years in prison before being exonerated.) A court overturning its nearly 30-year-old precedent. (The Tenth Circuit no longer has a per se Sixth Amendment violation if a prosecutor listens in on a defendant's calls with his attorney. The defendant now must show prejudice.) An intense circuit split. (Four positions, as identified in the dissent's footnote 34, a citation that presumably will make its way to a cert. petition in short order.) So pour yourself a tipple this holiday season and pore over this decision.
14. And in en banc news, the Sixth Circuit will reconsider its opinion that a class-action lawsuit against GM for certain transmission problems may proceed even though not all putative class members actually had those problems in their GM vehicles.

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Comments

[Area Man]

Re #5, many people may not know that, in many Texas counties, the "county judge" is in reality more the mayor of a county rather than anything resembling a judge. The position is the successor to the old Spanish alcalde, which was a multipurpose regional government functionary and magistrate.

[Stupid Government Tricks]

If memory serves, Harry Truman was a similar county judge in Missouri.

Some Sherlock Holmes stories have a justice of the peace who doesn't seem to be what I think of as a judge, even though carrying out some similar functions. I've never investigated enough to know if that is a time or country difference.

[SRG2]

JPs are magistrates. They try only misdemeanours - or what in Britain are now called summary offences.

[TwelveInchPianist]

What's next?

Defendant Reinhold's motion to dismiss based on Judicial Immunity is DENIED.

[KenveeB]

I was thinking about that too. Presiding over a county commissioners meeting is squarely within the county judge's official function.

[ReaderY]

As I note in my comment below, I wonder why he didn’t claim legislative immunity as an obvious alternative theory. If it’s not a judicial function, it’s clearly a legislative one.

[Alan Vanneman]

Since it was Lewis Carroll who invented portmanteau words (though not the word "portmanteau" itself) and the use of the phrase "portmanteau words" to describe them, it was only appropriate to cite him in connection with the use of the phrase "rabbit hole".

[Noscitur a sociis]

But… rabbit hole isn’t a portmanteau word.

[John 4]

rabbole

[Dr. Ed 2]

I'm thinking one of those judges struggled with a dissertation where you have to cite EVERYTHING...

[Morbo]

Carroll did coin the usage of "portmanteau" to describe blend words, but he did not invent blend words themselves. Blend words pre-existed Carroll and are common in many languages.

See for example "Gerrymander", which is a portmanteau from 1812 which is a blend of "Gerry", referring to then Massachusetts Governor Elbridge Gerry, and "salamander" to describe the shape of a partisan district in the Boston area that was created by a bill Gerry signed into law.

[Dr. Ed 2]

The issue was that it went from Chelsea, which borders Boston, to the New Hampshire border. See: https://www.historynet.com/wp-content/uploads/2022/09/gerrymander-cartoon-1812-1568x1642.png

[Jason Cavanaugh]

"The Tenth Circuit no longer has a per se Sixth Amendment violation if a prosecutor listens in on a defendant's calls with his attorney. The defendant now must show prejudice."

What the fuck?

[Krayt]

You have to prove the government acted on the secret knowledge? Wtf kind of argument is that?

[Davy C]

>Before the hearing, Hohn stipulated that the six-minute attorney-client call was not introduced at trial, did not affect his trial, and did not affect his sentencing.

Really shouldn't have conceded that - probably they only did so because what *was* the precedent said they'd win anyway. The call discussed, among other things, "what he believed the evidence against him to be and problems with that evidence". That is *plenty* for it to have affected how things went.

>The handbook advised Hohn that if he failed to abide this process, then his calls would be monitored and recorded for security purposes. Hohn admitted that he knew how to privatize attorney-client calls, yet he did not follow that protocol for the call he placed to his new attorney on April 23, 2012.

What kind of expectation of privacy do you have in a conversation if you know it's being recorded, and have the power to stop it from being recorded but don't do so? The argument that he waived privilege here is a strong one.

That said, I disagree with the holding. The prosecution intentionally listening to attorney-client communications is something the judicial system cannot tolerate.

[David Nieporent]

Really shouldn't have conceded that - probably they only did so because what *was* the precedent said they'd win anyway. The call discussed, among other things, "what he believed the evidence against him to be and problems with that evidence". That is *plenty* for it to have affected how things went.

According to the dissent, the majority misrepresented him: he didn't concede that; the only thing he conceded was that he couldn't prove that it had affected the trial. (The dissent argued that the burden of proof should be on the prosecution in this situation.)

[Lennyk78]

It's absurd to argue that someone must be a party, and legally can't be a party, and thus the plaintiff has no recourse.

[Dr. Ed 2]

Tribal sovereign immunity is a big issue in the Indian artifacts litigation. I was of the opinion that a sovereign could waive immunity if it wanted to be a party in a suit.

[Syd Henderson]

I think you're right. I've heard of states waiving sovereign immunity, perhaps so a given issue can be resolved or public relations.

[ReaderY]

But here it could equally decide the merits. The lawsuit claimed that it violated the plaintiffs’ constitutional rights to treat them differently from the tribes. The merits problem with that is that Tribes ARE different for constituional purposes. Tribes are sovereign entities. And of course sovereign entites get treated differently from private individuals. For example, they have sovereign immunity.

[Krayt]

depicts a protestor being hit in the groin by a munition and that bears the inscription "Making America great again one nut at a time."

In Baldur's Gate 3, I found a rock on the ground (you can use them as impromptu weapons) with the inscription, in Goblinese, "Nutbuster".

[Dr. Ed 2]

How was that coin different from the officers gifting an officer a ham after he fatally shot a Black perp (ruled legitimate shooting)?

The gift of the ham, became a *big* issue with the Springfield (MA) Police Department 30 years ago when there were all kinds of racism stuff circling. The department was troubled, they had cruisers with holes rusted through the floor (a flagrant violation of the MA state inspection law) and much of the city leadership would go to jail a decade later in a Federal prosecution.

It was alleged that a ham was a traditional gift given to a man in the south when he killed a Black man. Maybe it was, maybe it wasn't.
Union argued that they were trying to support a guy who had been through a lot of admin grief -- give him and his family a good meal.

I leaned with inappropriate but the coin isn't?

[MatthewSlyfield]

"I leaned with inappropriate but the coin isn't?"
The issue isn't whether or not the coin was inappropriate, but whether is is material to the plaintiffs lawsuit.

[Commenter_XY]

I thought it was rather humorous, actually, the coin that is. 🙂

[Eric (the OC tanker)]

There is nothing funnier that some rioter taking a nut shot.

Just say'n

[Drewski]

I agree with the PA AG that unfair-but-legal forfeiture of property is less reprehensible than rape by force of a restrained prisoner. That the IJ disagrees with this concerns me.

[Michael P]

For #2, the PA AG seems to be arguing that they must throw the book as hard as possible when someone else sells contraband on the first person's property, but nuance is required when deciding how bad repeat sexual predation is.

[MatthewSlyfield]

I read the summary from IJ the other way around. That the PA AG thinks that the elderly woman (not the theft by forfeiture of her house) who's son sold weed from her property is more reprehensible than rape by a prison guard.

[Drewski]

That wouldn't make any sense. The quote they gave from the AG said she's not particularly culpable - so implicitly not very reprehensible - while the AG agrees that the guard's behavior is reprehensible. The only reasonable way to read that is they find the guard to be the more reprehensible, and therefore the IJ believes the opposite.

[David Nieporent]

I too was a bit confused yesterday when I read IJ's comment, so I went back and looked at the underlying material. Matthew is more correct: the state was arguing that the prison guard's conduct was not very reprehensible, and therefore the punitive damages should be knocked down. More specifically, it was arguing two points: (1) the court has to consider how reprehensible the conduct was; and (2) when it does so, the court should conclude that it wasn't very reprehensible.

Meanwhile, the state had previously argued (in an unrelated matter, obviously) that the court should not even consider whether the property owner's conduct was reprehensible before forfeiting the property.

[Noscitur a sociis]

I think you’re summarizing the state’s position correctly, but I still don’t think IJ’s jibe really works. In the forfeiture case, they presumably agree that the property owner isn’t very culpable, which is why they don’t want culpability to be a consideration. In the prison case, they apparently think that the guard isn’t very culpable, which is why they want that to be considered. You can disagree with their moral judgment on the latter assessment, but the principle doesn’t seem that weird: clearly some sexual misconduct is worse than others, so it doesn’t seem unreasonable to take that into account.

[David Nieporent]

That comment deserves a "whoosh." You got all the facts and yet managed to put them together in a way that completely missed the point.

IJ: The government is being hypocritically inconsistent.
You: IJ's argument is wrong because in each case the government is taking the position beneficial to the government.

Um, yeah, that's the point of the criticism.

You can disagree with their moral judgment on the latter assessment, but the principle doesn’t seem that weird: clearly some sexual misconduct is worse than others, so it doesn’t seem unreasonable to take that into account.

Clearly some drug related crime is worse than others, so it seems unreasonable not to take that into account.

[Noscitur a sociis]

Maybe I’m just obtuse, but I’m still not seeing it. There just doesn’t seem to be anything inconsistent with believing a certain factor is a relevant consideration in one context but not in a different one, particularly if that position is based on precedent saying that.

I also read the briefs a little more closely, and I think IJ is actually mischaracterizing their position: contrary the quote’s suggestion, they aren’t saying that culpability is irrelevant: they’re saying it should be considered in the context of an innocent owner defense, rather than as part of whether the forfeiture is an excessive fine.

[David Nieporent]

they aren’t saying that culpability is irrelevant: they’re saying it should be considered in the context of an innocent owner defense, rather than as part of whether the forfeiture is an excessive fine.

The state's position is that once the innocent owner defense is overcome — if it's not, there's no forfeiture at all — then degree of culpability should be irrelevant.

As for consistency: obviously we're talking about two different statutes/contexts, and therefore it's not legally inconsistent. It's however morally inconsistent to say that' punishments imposed on government actors must be proportionate to their culpability but private citizens' punishments must not be.

(Literally the only reason the state gave for the latter position, btw, was that it would make it harder for the government to seize property if they also had to prove the property owner was culpable.)

[David Nieporent]

BTW, I wanted to apologize for the snarkiness of my previous comment (the one with 'whoosh'). I misidentified who I was responding to, and was thinking it was one of the perennially clueless commenters here. I still think you're completely wrong on this point, but you're not clueless.

[John F. Carr]

In the Pennsylvania insurance company case, the state was barred from oversight of a state agency for six years while the appeals worked their way through the system. The Joint Underwriting Association is the medical malpractice equivalent of an assigned risk pool. It demanded fees far in excess of its actual costs and sat on a fortune worth hundreds of millions of dollars. There was no statutory authorization to return excess revenue.

The District Court did allow enforcement of a state law requiring the JUA to disclose its employees – who is the beneficiary of that eight figure fortune?

[ReaderY]

It appears the money just sat there.

I agree the case was correctly decided. But it’s understandable why the District Court went the other way. There had been several cases involving similar-seeming bodies in other states that courts had found to be private rather than public. The Third Circuit carefully distinguished them all. For example, in the analogous Utah case, the statutory scheme explicitly said its analogous entity was a private for-profit corporation. In the analogous Texas case, the statutory scheme had provided for distributing any profits to the members, which the 3rd Circuit said indicated the members had an owner-like interest in the Texas entity, making it private. The Pennsylvania scheme had none of these features. Its founding statute made it a public entity, and it had no provision for distributing surpluses to any private party.

But you had to go into the details to see the differences. From a surface point of view, it had certainly seemed that every court deciding a case involving a similar body had found it to be a private entity rather than an alter ego of the state.

[John F. Carr]

I thought the Richard Jewell case showed that calling somebody a suspect was actionable. "Person of interest" is the same as "suspect".

[Absaroka]

>"Person of interest" is the same as "suspect".

Interesting. My sense is more in line with this:

"The suspect in a crime is a specific person who authorities believe may have committed the crime.
...
A person of interest refers to someone who authorities believe may have information pertinent to a crime."

So e.g. if a security camera shows a mugger, victim, and witness, the mugger is a suspect and the witness a PoI.

Usage may vary regionally, but the first few hits I got searching for 'person of interest vs suspect' tend to make the distinction.

[MatthewSlyfield]

My sense of "person of interest" is broader. It could be a witness or a suspect.

[Absaroka]

Oh, I agree. The suspect definitely "has information pertinent to a crime".

Let's say the police know the crook drives a red van and have a partial plate. DMV records show 4 people with red vans and matching plates. All 4 will be PoI. When one of their cell phones is geolocated to the place and time of the crime, 3 of them are no longer PoI and one is now a suspect.

Again, that's just the usage I'm familiar with; YUsageMV.

[John F. Carr]

In theory a person of interest could be a witness. In practice "person of interest" is a euphemism for suspect. When police are genuinely looking for a witness they know how to say so. This is how language naturally evolves. Words escape their etymology. Instead of a suspect/witness dichotomy we have a charged/not-yet-charged dichotomy.

I recently said "I'll be there soon" to a small child who was calling for help. I was thinking he doesn't know how to use a dictionary. He has to learn by experience. If he notices that "be there soon" is usually followed by an adult's appearance he will learn the prescriptive meaning. Otherwise he will learn it means "I'm busy."

[Bruce Hayden]

Except that don’t Suspects require a Miranda warning, while Persons of Interest do not?

[Noscitur a sociis]

That is not, in fact the test for when Mirand a warnings are required.

[John F. Carr]

The judges in the rolodex case were born from 1966 to 1975.

The opinion quotes Roberts' concurrence in Dobbs, "If it is not
necessary to decide more to dispose of a case, then it is necessary not to
decide more." It is a quotable line. It has been quoted against Roberts himself.

[ReaderY]

In the case of the county judge who allegedly held a grudge, while I agree presiding over a meeting of the County Commissioners is not a judicial function, this doesn’t strike me as ending the inquiry. It is most certainly a legislative one. So the county judge involved may be entitled to legislative immunity. And failing that, because legislative and administrative bodies have the constitutional right to maintain order and conduct public business with order and decorum, if the petitioner had in fact resorted to heckling after the County Commission had turned down her petition, as the opinion states in summarizing the underlying facts, on the merits the county judge may well have been fully within his rights to have her ejected from the meeting and quite possibly to have her arrested as well.The petitioner does not have a First Amendment right to heckle in a disruptive matter after her allotted time to speak had ended and the Commission decided not to adapt her position.

[ReaderY]

In the Pennsylvania insurance pool case, the decision rule for whether the JUA was a public or private entity came from the famous Dartmouth College case. I wonder if the lawyers for the JUA had paraphrased Daniel Webster’s famous quip from that case. “It’s a small underwriting association, Sir. But there are those who love it.”