Short Circuit: A Roundup of Recent Federal Court Decisions

Pole cameras, real estate RICO, and the Eighth Circuit island.

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

Of late, the Eleventh Circuit has been at the cutting-edge of excessive-fines litigation. And in a recent case—United States v. Schwarzbaum—the court got some important things right (e.g., that the Excessive Fines Clause does indeed apply to multi-million-dollar civil penalties). But it also got some important things wrong (e.g., the legal standard for determining what's excessive), and wrong in ways that are hard to square with Supreme Court precedent and the precedent of other courts. In a modest but insightful paper, two of IJ's excessive-fines mavens break things down and explain why Schwarzbaum might be a decent candidate for an en banc rethink—whether or not either side asks for it!

Friends, this week marks the official Tenth Anniversary of Short Circuit. Zounds! Please do come and join us at this big thing with important people we're doing live and in person on April 3 in D.C.

New on the Short Circuit podcast: Hear from Prof. Rebecca Haw Allensworth about her new book, The Licensing Racket.

1. Looking to read a super gross opinion about what a monster convicted sex-offender R. Kelly is? The Second Circuit has you covered.
2. Teen spends 65 days in jail on suspicion of double murder at a Wheaton, Md. mall before fingerprints, DNA, and cellphone records clear him. (The perpetrator is caught and convicted.) Can the teen sue the detective who got him arrested for sloppy police work? Fourth Circuit: Nope, a school-resource officer said he recognized the teen from school and in the surveillance footage. Dissent: The school-resource officer didn't actually say that, and the detective's statement that a second officer also ID'd the teen is outright shenanigans.
3. Lawsuit claims Prosper, Tex. school bus driver sexually abused two children and school officials failed to stop the abuse. District court: Wow, this looks super bad. MTD for supervisor liability is denied. Fifth Circuit: Qualified immunity. Also, the concurrence shouldn't be saying that if the plaintiffs find new evidence in discovery—while pursuing what's left of the case—that they could replead and bring these claims against the officials back in. A judge "is not a knight-errant." Concurrence: District courts can allow amended pleadings "when justice so requires," including "for the victims of a pedophile."
4. St. Tammany Parish, La. is scandalized to learn that its public libraries not only had "Pride Month" displays but also carried LGBT-related books! Looking for ways to remove the members of the Library Board of Control, one newly elected councilman realizes that the council failed to stagger the board members' terms when the board was first created, as required by Louisiana law. The board is declared vacant, new members are appointed to staggered terms, and three of the ousted members sue for First Amendment retaliation. Fifth Circuit: No standing; the decision to stagger the board's terms does not create any individualized injury.
5. Back in 1997, Austin, Tex. made it illegal for candidates for city office to raise campaign contributions more than six months before the general election. Fifth Circuit (2018): That violates the First Amendment. Austin: Okay, what if we extend it to a year? Fifth Circuit (2025): Still unconstitutional.
6. Former San Marco, Tex. mayor was a prominent local businessman and notorious KKK member. He installed a Juliet balcony on his home with a wrought iron "Z" for his last name, which remains today, and which the home's current owners (non-KKK members) wish to remove. Alas, the home is in a historic district, and the local historic commission declines the request. District court: You can't sue about that, and even if you could, you lose. For one, you relied on a 1921 SCOTX case that can't possibly still be good law. Fifth Circuit (unpublished): They can, and they might not. "[P]recedent has no expiration date."
7. Prisoners sue the Louisiana State Penitentiary, and after two trials the district court rules that prison conditions violated the Eighth Amendment, Rehabilitation Act, and Americans with Disabilities Act. The court enters what it styled a "Judgment" on liability but also a "Remedial Order" contemplating that the actual injunctive remedy would follow later after a special masters' report. Louisiana appeals. Fifth Circuit: There's no final judgment—and hence we have no appellate jurisdiction—until that remedy is actually ordered. Dissent: The district court has been dragging this case out for a decade, imposing major costs on Louisiana, and violating the Prison Litigation Reform Act; it's time for an appeal.
8. Freight hauler in Kentucky pulls over to rest when he sees a car hit a ditch and flip. The driver asks if the hauler will hang onto a bag for him—a bag that appears to contain guns and drugs. The hauler declines. The driver asks for a ride, which the hauler also declines, after which the driver flags down another vehicle, steps in, and speeds away. The cops find the bag, and the driver is prosecuted; the hauler is the star witness. But wait! By then, the hauler had gotten into his own unrelated—but also gun-and-drug-related—legal trouble. It's raised (but not formalized) that perhaps the hauler could get a deal if he testifies against the driver. At the driver's trial, which results in a conviction, this subject is barred from cross-examination of the hauler. Confrontation Clause violation? Sixth Circuit: Um, yeah. New trial.
9. After the FBI busts Detroit narcotics officers for robbing and extorting suspects and selling drugs themselves, some officers go to prison and some officers go into a newly formed unit with a whole new acronym—but no additional training, protocols, etc. Oh no! Members of the new unit are soon busted for serious corruption and misconduct. Can a woman whose home was raided after an officer lied to get a warrant—and who was then prosecuted after officers planted evidence and she refused to pay a bribe—sue the city? Sixth Circuit (unpublished): "Although the allegations in this case are profoundly troubling," no.
10. When is an otherwise-lawful campaign contribution an illegal bribe? Sixth Circuit: When a jury says it is. Concurrence: That seems to be the law, and the Supreme Court should straighten that out. Dissent: It's actually our job to police that line, and this ruling is going to criminalize a lot of ordinary politics.
11. The owner of a beer-serving coffee shop (!) in Lexington, Ky. sues the governor and several state officials, in their official and personal capacities, alleging that they revoked the owner's alcohol license in retaliation for criticism of the governor's COVID-19 response on social media. The lower court dismisses, holding that the owner's claims are barred by quasi-judicial, quasi-prosecutorial, qualified, and sovereign immunity. Sixth Circuit: The owner plausibly alleged that the governor and two other officials retaliated in violation of his clearly established First Amendment rights. No QI. Affirmed in part, reversed in part, and remanded. Concurrence/dissent: All that *and* two additional officials shouldn't receive absolute immunity.
12. Last year, the Seventh Circuit, in a divided opinion, held that two prison officials might be on the hook for accidentally keeping a Wisconsin man on probation for nearly a year beyond his statutory maximum (leading to some jail time as well). Following a sua sponte order for en banc rehearing, the full court now holds that, actually, they get qualified immunity. Dissent: The officials were on notice that they'd been making systemic mistakes in calculating people's probation, and the majority's qualified-immunity jiu-jitsu slices the bologna a bit too thin.
13. Allegation: Man fires gunshots from his house after a plainclothes officer bangs on the door to execute a search warrant. No officers are hurt, and after a 911 operator convinces him that it's police outside, the man and his wife come out peaceably. A Maple Grove, Minn. officer throws the wife, who is 38 weeks pregnant, down onto the concrete driveway on her belly and punches her in the back, causing agonizing pain. District court: If that's all true, that's excessive force. But because the complaint didn't say whether the officer was being sued in her official or individual capacity, you lose. ("[W]e have to obey the rules of the Eighth Circuit island" and "you've got to use the magic words. You didn't use the magic words.") Eighth Circuit (en banc, over a dissent): The case can proceed. We hereby renounce our clear-statement rule, which conflicted with SCOTUS guidance and put us on the wrong side of a 12-1 circuit split.
14. Mille Lacs County, Minn. has a falling out with the Mille Lacs Band of Ojibwe (one of the six Mississippi bands of Chippewa), and the county sharply limits the Band's law enforcement abilities. The Band sues, and the county argues that the Band's reservation was disestablished by a series of treaties and laws between 1863 and 1902. While the case is pending, the state amends a law to give the Band the law enforcement authority it sought in the case. Eighth Circuit: Great, so the case is moot. And here's 15 additional pages of facts wading through the complex history about whether the Band's reservation has been disestablished, a question that will have to be resolved in a future, non-moot case. Concurrence: The facts are interesting but should be wrestled with based on the record developed in a non-moot case.
15. A mother disappears to Mexico with her minor child, and, upon returning to the U.S., is indicted for international parental kidnapping. Yikes! The mother relies on a defense, applicable where "the defendant was fleeing an incidence or pattern of domestic violence," based on allegations that she was protecting her child from sexual abuse by the father. The lower court prohibits the mother from introducing that evidence and she was found guilty. Eighth Circuit: If Congress wanted to include protecting a third party as a basis for the affirmative defense, it could have said so. Child-custody proceedings are the place to present evidence of child abuse. Dissent: I doubt the defense prohibits the mother from fleeing because of the child's abuse while allowing the mother to flee—with her child—if she is being abused herself.
16. A medical institute in Seattle, Wash. wants to treat late-stage and terminal cancer patients with psilocybin, the psychedelic compound that gives certain mushrooms their "magic" properties. Because psilocybin is a schedule I substance under the Controlled Substances Act, it may be prescribed only in the context of "bona fide research," which requires the DEA's approval. The institute petitions the DEA, requesting that one of its doctors be exempted from the research registration requirement. When the DEA declined, the institute sued, arguing that the DEA's response was arbitrary and capricious. Ninth Circuit: It was neither. It's sufficient that the DEA provided several reasons for refusing to exempt the doctor. Petition denied.
17. Woman who runs a marijuana dispensary in Oregon, where pot is legal, is arrested for possession of the drug in Idaho, where it is not. She consents to an electronic search of her phone, resulting in a copy of its contents. The charges are dropped. Meanwhile, back at home, the Grant County, Ore. sheriff's office gets wind of this and requests the copy, ostensibly to check if her boyfriend—who is a deputy—is on the up-and-up. The data turns out to have nude photos of the two of them. She starts running into people who tell her they've heard rumors of folks gathering around the water cooler at the sheriff's office to admire her in the buff. She sues, arguing this is a Fourth Amendment violation. Ninth Circuit: Pretty creepy, and also unconstitutional. But—womp womp—qualified immunity. Concurrence: We shouldn't even say if it's unconstitutional.
18. Allegation: Two law-enforcement officers from the L.A. District Attorney's Office forcibly barge into a pair of Vietnamese immigrants' homes, brandishing weapons and interrogating them about their disability applications without English interpreters. Refugees sue under Section 1983, which allows lawsuits for constitutional violations "under color" of state law. Ninth Circuit: But these officers were acting under federal law because they were in a joint state-federal task force investigating Social Security fraud and led by a federal agent. (Which matters a lot because federal officers have de facto immunity from most civil-rights lawsuits.)
19. Plaintiff sues and settles civil-rights claims based on injuries he suffered at the San Diego county jail. Media organizations intervene to unseal reports and related documents created by the county's Critical Incident Review Board, which consults with legal counsel after incidents to assess litigation risk and recommend remedial actions. Ninth Circuit: Those reports are covered by attorney-client privilege, and they should be returned to the county or destroyed. Concurrence: Our circuit's case law on the standard of review for privilege determinations is a mess and reflects a circuit split. Dissent: There is no privilege; if there was, it was waived; and in any event, much of the information in the reports clearly isn't privileged and could be disclosed.
20. The Supreme Court has oft admonished that lower courts have a "virtually unflagging obligation" to hear cases within their jurisdiction. And yet! Attend to this (unpublished) Tenth Circuit decision, and you will see the panel apply the Middlesex factors like they are the test for Younger abstention, inexplicably ignoring Sprint v. Jacobs, wherein the Court ruled unanimously that you don't even get to Middlesex unless one of three exceptional circumstances exist. But attend, we beseech you, and you will see that none—none!—exist. The mind boggles. The circuits are rent. How? How could this happen? (Plaintiff was pro se, so perhaps the briefing wasn't of much help.)
21. Florida real estate investment advisor suspects rival advisor of posting negative reviews. With an intent to "crush[] this douche" and destroy his business and his personal life, the first advisor, his wife, and accomplices crush out some fake websites, reviews, and emails containing misleading statements about the rival, including some regarding his "alleged prurient nature." Eleventh Circuit (unpublished): And it was OK for the jury to conclude that this was indeed the RICO. Judgment of $12.5 mil is affirmed.
22. Birmingham, Ala. drug dealers are convicted partly based on pole cameras that looked at the front and back of a house and ran for 10 months. Eleventh Circuit: Which is good police work. The cameras could only see what actual people could see from a public place. And even though no human cop would have just stood there for that long, you can't stop progress. Concurrence: Not sure the public-view doctrine per se justifies pole cameras, "regardless of the length of time they record nearby human activities."
23. And in en banc news, the Fifth Circuit will not reconsider its decision that a Texas federal judge exceeded her authority when she imposed $100k in daily fines against state defendants for allegedly violating a remedial decree to overhaul the state's foster care system. The original panel found that the fines violated state sovereign immunity and that the state had substantially complied with the remedial decree. It also ordered the case reassigned to a different district judge on remand. Four judges dissented from denial, disagreeing with all of that.

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