Short Circuit: A Roundup of Recent Federal Appeals Court Decisions

Sitting by designation, extremely unusual hardship, and polysexual posters.

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

New on the Short Circuit podcast, YouTube version: The latest in Christmas sweater fashion plus the Virginia Readmission Act and fake environmental regulations.

1. New York ne'er-do-well on supervised release fails drug tests and gets caught on video outside the jurisdiction—among other violations of his release terms—and is sentenced to more prison time. But is it an Appointments Clause problem that the judge was promoted to the circuit court in the meantime and was only sitting back on the district court by designation? Second Circuit: Nope, we've done this designation business for two centuries. Also, you don't get a jury for the revocation of supervised release (based on a multifactor test from a Justice Breyer concurrence the last time this thorny Sixth Amendment issue was considered by SCOTUS).
2. New Jersey elementary-school mom encounters LGBTQ-pride posters at school, gets upset when her seven-year-old daughter proceeds to ask her what "polysexual" means, and criticizes the school on social media. After which military personnel at nearby base (some of whom also have kids at the school) perceive her post as extremist and involve local police and state homeland-security bureaucracy. Which leads to the social-media post's being taken down (at the urging of a police chief) and armed police officers' attending the next school meeting. Mom sues for First Amendment violations, seeking damages and a preliminary injunction. Third Circuit: Since many of the officials' behavior was pretty obviously "beyond the pale," the mom may well have a good claim for damages, but because the censorship campaign had subsided before she filed suit, she lacks standing to seek a preliminary injunction.
3. Allegation: Harrisburg, Penn. detective misrepresents and omits key facts in order to get man charged with a bevy of serious and not-so-serious crimes after 2017 shooting. Some charges are dropped, and he's acquitted of all the rest after spending 18 months in jail. Can he sue the detective for malicious prosecution? District court: Oh yes, he can. Third Circuit: There was probable cause for the misdemeanor marijuana charge, so fibbing a little to get him charged with attempted homicide was fine. Or at least a reasonable officer could have thought so until SCOTUS said otherwise earlier this year—too late to help this plaintiff. Denial of QI reversed.
4. Married guy with 3 kids and a household income of around $300 a week underreports that income to get food stamps. In 1995. Gets 3 years' probation. Otherwise has a clean record. Can that constitutionally bar him from owning a firearm today? Third Circuit (2023, en banc): Whoa, that's a Second Amendment violation. Supreme Court (after Rahimi): Give that another look. Third Circuit: (2024, en banc): Yeah, still a violation. Concurrence 1: Natural law is rad. Concurrence 2: Food stamps, seriously? Concurrence 3: I guess this guy can have a gun, but just about no other law breaker. Concurrence 4: Maybe just no guns for the maximum sentence? Dissent: The guy dissed the Sovereign.
5. Allegation: Laurel, Miss. police detain potentially intoxicated man at traffic stop. His brother, not detained, hangs around for a bit but then walks away hurriedly. An ICE agent who'd been summoned to the scene to help with translation (neither brother speaks English) shoots him in the arm, shouting afterwards: "Man, you shouldn't have put your hand in your f*king pocket!" He was unarmed. Fifth Circuit: Can't sue the ICE officer for excessive force under Bivens. Dissent: But he should be able to sue him under a Section 1983 "joint action" theory. A plaintiff only has to show the defendant acted jointly with a state official, not that they also conspired.
6. Preliminary injunction whiplash! Several businesses allege that the Corporate Transparency Act (CTA), which requires nonexempt companies to report the identity of their "beneficial owners" to the Treasury Department's Financial Crimes Enforcement Network (FinCEN) or face criminal penalties and $500 in daily fines, is unconstitutional. Should the lower court's preliminary injunction of the law be stayed pending appeal? Fifth Circuit (Dec. 23, motions panel): Yes! Fifth Circuit (Dec. 26, merits panel): Actually, the preliminary injunction should go into effect. Prior order granting the stay is vacated.
7. Allegation: The city manager conspired with other Wayne, Mich. officials to engineer a baseless stalking prosecution of a critic who advocated she be fired for running a toxic work culture at city hall. Alleged conspirators: Please grant us qualified immunity by considering a bunch of evidence outside the complaint or by saying the plaintiff needs to point to a factually identical case. Sixth Circuit: No.
8. The Constitution provides that state legislatures shall establish the time, place, and manner of holding elections for U.S. senators and representatives. Does that mean Michigan ballot initiatives liberalizing absentee/early voting are unconstitutional? Sixth Circuit: An interesting question that the legislature would have standing to raise. But individual legislators do not.
9. Aliens subject to deportation can sometimes avoid it if they can show, among other things, that it would cause "exceptional and extremely unusual hardship" to their U.S. citizen children. In a post-Chevron world, who decides what's "exceptional and extremely unusual"? Sixth Circuit: We do. Concurrence: This one is still the agency (but I agree this guy didn't meet the standard).
10. Aurora, Ill. officer pulls over suspected drug dealers; an occupant flees, and the officer gives chase. A second occupant exits the vehicle and walks quickly toward the front of the officer's patrol car and stops with hands raised in front of the dashcam. A second officer arrives and takes him to ground with a leg sweep tackles, punches him. Whoops! He's not a drug dealer. Excessive force? False arrest? Seventh Circuit: No, he was fleeing. Dissent: The video hardly puts that beyond doubt, so this should be the jury's call, not ours.
11. Allegations: Papa John's and Bloomingdales.com use "session-replay" technology on their websites, which records users' mouse movements, clicks, keystrokes, search terms, and more. Missouri woman brings putative class actions, asserting violations of Missouri statutes, the Electronic Communications Privacy Act, the Stored Communications Act, and the Computer Fraud and Abuse Act. Eighth Circuit: Under the Supreme Court's kinda-sorta-history-ish view of Article III standing, the companies' behavior doesn't bear a close enough relationship to the historically cognizable harm of "intrusion upon seclusion." Cases dismissed for lack of standing. (Which, as Justice Thomas has pointed out (footnote 9), likely has a "pyrrhic" consequence for the companies: letting the woman file a similar, removal-proof lawsuit in state court.)
12. Concerned with Chinese ownership of a telecom company, the FCC revokes its operating certificate on its own initiative. Can they, like, do that? Where's that power written down? Ninth Circuit: Well, the power to grant implies the power to revoke. Dissent: The Book of Job says the Lord giveth and the Lord taketh away, but we're stuck with what's in the U.S. Code.
13. "I don't care what Santa promised you, Chad. Unless that was Judge Collins behind that fake beard at the Oxnard Mall, he can't make the Ninth Circuit strike down a campaign contribution limit for you for Christmas." Ninth Circuit (from behind a fake beard): [wink]
14. Ninth Circuit: It's clearly established that officers can't shoot an emotionally disturbed person holding a knife to their own throat without effective warning. Grant of QI for this Phoenix officer reversed.
15. And in state court news, the Iowa Supreme Court delivers a lump of coal to freedom-loving residents of Orange City who aren't too keen on gov't invasions into their homes without a warrant based on probable cause. City officials assert that they do not need any kind of individualized suspicion to demand entry into renters' homes to conduct code inspections, but the Iowa Supreme Court says residents must first submit to the inspections before they can bring their state constitutional challenge. The word "privacy" does not appear in the opinion. Bah humbug. (This is an IJ case.)

Victory! IJ client Awa Diagne wants to open an African-style braiding salon in South Fulton, Ga., but last summer officials denied her a permit after a nearby salon owner complained. The decision nearly forced Awa into bankruptcy (as she'd had to spend tens of thousands of dollars to secure the lease and fix up the storefront before she could apply for the permit). But this month, a state trial court ordered the city to allow her to open up shop: "The only evidence articulated that could be construed to support a 'No' vote—the anticompetitive stance of the one councilmember and her constituent who wanted to maintain a haircare monopoly in the strip mall in question—runs contrary to Georgia's long history of constitutional jurisprudence that 'entitles Georgians to pursue a lawful occupation of their choosing free from unreasonable government interference.'" Hear, hear. Click here to learn more.

Comments

[Joe_dallas]

Bad link on #6 - the CA5 merits panel vacating the stay of the BOI injunction

https://www.ca5.uscourts.gov/electronic-case-filing/case-information/current-opinions
its the Texas top cop case

[Dr. Ed 2]

" City officials assert that they do not need any kind of individualized suspicion to demand entry into renters' homes to conduct code inspections, but the Iowa Supreme Court says residents must first submit to the inspections before they can bring their state constitutional challenge"

What ever happened to _Camera v Municipal Court_?
That was SCOTUS...

[Noscitur a sociis]

If you actually bother reading the opinion, you’ll see a discussion of Camara and the cases interpreting it, and an application to the situation here.

[David Nieporent]

If you actually bother reading

LOL.

[Dr. Ed 2]

I still ask how these facts differ from Camera, which is considered good law in MA.

"n 1963, a housing inspector from San Francisco's health department entered an apartment building to conduct a routine inspection to locate possible code violations. The building manager informed the inspector that a tenant might be using his space contrary to permitted policy. The inspector approached the tenant to enter the area, but the tenant denied entrance for lack of a search warrant. The inspector returned twice more, again without a search warrant, and was again denied entry. A complaint was subsequently filed against the tenant, and he was arrested for violating a city code. He filed suit under the Fourth and Fourteenth Amendments.

[Noscitur a sociis]

So the first thing to notice would be that this decision isn’t about whether the policy is legal, but rather about when the challenge can be brought in the first place. I realize it’s too much to ask you to read the actual decision, so instead I’d point you to the summary, which says “ but the Iowa Supreme Court says residents must first submit to the inspections before they can bring their state constitutional challenge.”

From there, I hope the difference should be obvious even from just what you posted. Camara was subjected to a search, so he was able to bring his challenge to it.

[Dr. Ed 2]

Camera was NOT subjected to a search -- he was charged with not permitting a search to be conducted.

[JoeFromtheBronx]

The 3rd Circuit judges seemed to have a lot of time on their hands with 164 pages total for the various opinions.

Some of the remarks rely on open-ended rhetoric. Perhaps, they are trying to impress Justice Alito, the Third Circuit justice.

The dissent is concerned with more than "dissing" the sovereign. History and tradition, says they, allows disarmament for those who commit felonies, particularly crimes against the government (food stamp fraud). The majority's position has hard line drawing issues.

[MatthewSlyfield]

#3

There was probable cause for the misdemeanor marijuana charge, so fibbing a little to get him charged with attempted homicide was fine. Or at least a reasonable officer could have thought so until SCOTUS said otherwise earlier this year—too late to help this plaintiff. Denial of QI reversed.

A fine example of everything that is wrong with "Qualified" Immunity.

[Zarniwoop]

Agreed. "We saw him jaywalking, so we kept him in jail for 18 months because reasons" doesn't pass a basic smell test.

[SRG2]

Yup. FWIW, utterly predictable that Thomas and Alito dissented in Chiaverini. Thomas could have written a much shorter dissent. "The defendant, being a criminal, doesn't deserve to sue these good police officers, so they get QI."

[John F. Carr]

From the Iowa case:

In a facial challenge, the challenger must show that no application of the ordinance could be constitutional under any set of facts. But we think that there are sets of facts where the ordinance could operate without violating article I, section 8. For instance, the ordinance expressly permits private inspectors to conduct the required inspections. When that occurs, the property is exempt from inspection by city officials. No government official will enter—nor seek an administrative warrant to enter—the rental home. In that set of facts, constitutional warrant requirements are not even implicated, much less offended.

Massachusetts Mormons built a temple in Belmont. According to news reports once it was consecrated some parts of the structure were off limits to infidel building inspectors. On theological grounds, not statutory grounds. I don't know if there ever came to be a dispute over access.

[Dr. Ed 2]

Would it have been off limits to the infidel fire department in a fire?

[CEF]

#6: the litigation has been brewing for over a year, an injunction had already been granted as to the parties to the suit, and the deadline was Dec 31st. On Dec. 3, the District Court enjoined enforcement on a nationwide basis. Two days before Christmas (and 8 days before the filing deadline), the Motions Panel stayed the injunction, causing corporate attorneys across the country to have minor heart attacks upon learning of the change on Christmas Eve. FINCen gave a 2-week grace period (until Jan. 13) and then, 2 days after Christmas, the motions panel un-stayed the injunction.

Oral argument at the 5th Circuit is scheduled for March 25, so there's a 3-month reprieve from the whiplash.