Short Circuit: A Roundup of Recent Federal Court Decisions

Private islands, signal fires, and a salmagundi of sadness.

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: Our long-time friend Robert Thomas stops by to proclaim his support for "old property."

1. Friends, we wish to honor Judge Selya of the First Circuit, whose sesquipedalian style graced many an edition of this newsletter, with a vocab quiz: dithyramb, perfervid, panegyric, anent, obsequies, catafalque, velivolant, encomiastic, columbarium, salmagundi.
2. A trio of finance bros, one of whom owns a private island, puts together a sophisticated operation that aggregates small class action claims and submits them to settlement funds. Its clients are supposedly hedge funds registered in Gibraltar, the Bahamas, and Colombia. The only problem? The whole thing is a sham, and the clients are in fact defunct shell companies. One bro appeals his conviction and restitution order. Third Circuit: This guy is such a jerk that not only do we affirm his conviction but we're vacating the restitution order—which we admit is tricky, as there are a lot of defrauded class action members—so on remand so he can pay more.
3. Allegation: Fort Worth, Tex. police respond to reports of a house with an open front door at 2:00 a.m. They walk around the house, looking for signs of a burglar. When the homeowner hears the noise and goes to the window to see what it is, one of the officers shoots her through the window before he can even finish saying, "Put your hands up! Show me your hands!" She dies. Fifth Circuit: And it is extremely clearly established that you can't shoot people under those facts, so no qualified immunity.
4. After 11 years of service, man retires from job at Wayne County, Mich. and begins drawing $5.4k/mo. pension. Then he returns to work at Wayne County full time in different positions, continuing to draw his full pension (as is fully permitted). But when he starts appearing at public meetings and testifying that he—and many other retirees—are being systematically underpaid, county officials terminate his pension. Jury: Which was unconstitutional retaliation for his protected speech. Sixth Circuit (unpublished): Affirmed, in part because his speech made clear his concern was more for his fellow retirees than himself.
5. Police go to Knoxville, Tenn. high school to arrest teen who assaulted his girlfriend. Officers find him in a bathroom stall, and during the ensuing struggle a gun falls out of the teen's pocket. It discharges but doesn't hit anyone. Four seconds later, an officer shoots the teen, as he yells, "Wait, wait, wait, wait!" The officer fires again moments later, striking a fellow officer. The officer lives. The teen dies. Sixth Circuit (unpublished, over a dissent): No qualified immunity for failing to provide medical assistance as the teen bled out.
6. It is the dream of all young lawyers to use their finely honed reasoning skills to carefully parse timeless philosophical questions about the true nature of reality. Also, here's a Seventh Circuit opinion considering whether a cavity inspection is part of a jailhouse strip search or whether it is instead a separate search requiring a separate justification.
7. Tech-savvy airman thinks one of his friends has been the victim of a theft by a fellow airman, metes out some rough justice by rerouting the thief-airman's next paycheck to an orphanage in Siberia. Maverick move! And one that leads to a court-martial, conviction, and dishonorable discharge. Seventh Circuit: And now, after 20 years and many, many appeals, we can give this prankster no relief.
8. In 2020, after parties unknown posted an athletics department poster with the hashtag "#BlackLivesMatter" on his office door, an Illinois State U football coach replaces it with a handwritten note saying, "All Lives Matter to Our Lord & Savior Jesus Christ." He's fired. Unconstitutional retaliation for his protected speech? Seventh Circuit: It's too soon for school officials to invoke qualified immunity. Try again at the summary judgment stage.
9. Jefferson County, Mo. prisoner: May I have a Bible while in administrative segregation? Prison: No. "[F]eel free to quote the constitution all you want to—I don't mind at all." Prisoner: Lawsuit for you. District court: The Religious Land Use and Institutionalized Persons Act doesn't allow claims for money damages. Eighth Circuit (over a partial dissent): Yes, it does, at least against the county that took federal money on condition of respecting religious liberty. Not against the prison administrator who wasn't part of that bargain, but she can be sued under good-ol'-fashioned Section 1983.
10. Human Rights Defense Center wants to send Arkansas prisoners information on their legal rights and news stories about the criminal justice system, but the Baxter County Jail limits all nonlegal mail to inmates to postcards. HRDC sues, alleging the ban violates their First Amendment rights. Eighth Circuit: Correct. We've upheld similar postcard rules before, including against this plaintiff, but Baxter County also bans the internet and any other means through which HRDC could communicate with inmates, which is going too far.
11. Look, your summarist is just gonna put his cards on the table and say he's bumping up against a deadline and doesn't have time to decipher this 156-page opinion of the Ninth Circuit holding (over a dissent) that various provisions of Arizona voter registration law are legally … not good … in some fashion.
12. Practical tips for the outdoorsy in Arizona. Tip #1: Don't go on a daylong hike in the hot, parched wilderness alone without a compass. Tip #2: If you ignore Tip #1, and then get lost and set a series of indiscriminate signal fires that end up burning 230 acres, don't expect much sympathy from the Ninth Circuit.
13. Bad news for the founders of your favorite now-shuttered blood-testing-technology company: the Ninth Circuit affirms Elizabeth Holmes's and Sunny Balwani's convictions and sentences. Turns out that their business was built on a house of lies: they used third-party devices to run tests instead of their own (while pretending to use their own); they inflated revenue (projecting $230 mil profits when running at $57 mil+ losses); they said the military was using their product on the battlefield (it was not); they said that their partnership with Walgreens was expanding (it was contracting); and they said that pharma companies were vouching for their tech (they did not). For this, they're convicted of a bunch of kinds of fraud and sentenced to 135 months (Holmes) and 155 months (Balwani) in prison, plus $452 mil in restitution—all of which is fine, per the appellate court.
14. You know those terms of service that nobody reads when you get an online account? Well, turns out if you lie (like we all do) and say you've "read" them—but weren't forced to actually view their text—that's different than the website forcing you to scroll through them before you lie. So says the Ninth Circuit (over a dissent), ruling a California woman, and her class, doesn't have to go to arbitration over the automatic renewal of her gym subscription and therefore "eludes the Gordian knot that Ross Geller and Chandler Bing struggled against."
15. Allegation: Though a bystander frantically tries to roust them, Honolulu police remain in police station as a mentally ill man beats homeless woman to death in the station's parking lot—with a tree that he had uprooted—over the course of about 30 minutes. Ninth Circuit (unpublished): Her estate's constitutional and state tort claims fail.
16. This (unpublished) Tenth Circuit opinion reminds us not to live our lives in such a way that the local police department announces a zero-tolerance policy arising out of our decade of disputes with our neighbors and also, separately, to live our lives in such a way that our warrants explicitly incorporate their supporting affidavits by reference when necessary.
17. Man is charged with four counts of assault with a deadly weapon in Indian country after stabbing his then-girlfriend. (She survives.) After being read his Miranda rights, he keeps quiet until trial, where he first testifies that he acted in self-defense. The jury convicts after the gov't repeatedly references his post-Miranda silence to cast doubt on his credibility. Tenth Circuit: The right to remain silent implies that you won't be punished for exercising it. And that violation may have changed the outcome in this "credibility contest between two proven liars." Reversed and remanded.
18. Family members call Las Cruces, N.M. police for help with mentally ill, septuagenarian woman who is threatening them with knives. When an officer arrives, however, the woman has calmed down, and he's asked to "please be very careful with her." Instead, he screams at the woman to drop the knives and shoots her dead as she steps toward him. Tenth Circuit: Grant of QI reversed. To trial this must go.
19. Allegation: When indigent Alabama inmate complains (and shows evidence) of an ear infection to a nurse, she blows him off. His repeated efforts to obtain care after that are ignored. Yikes! Six months later, he has a seizure and is diagnosed with "an untreated sinus infection" that resulted in a ruptured ear drum, bone infection, and brain abscess. Eleventh Circuit: He gets another chance to prove his deliberate indifference claim, which accrued only when he became aware of his injuries at the hospital, not when he interacted with the nurse. Reversed and remanded. Concurrence: "District courts should also reconsider the "special report process" used for pro se prisoner cases, "an informal and opaque pseudo-summary-judgment process" that isn't even authorized by the federal rules."
20. Allegation: Domestic violence victim calls 911 for help, but Palm Beach County, Fla. deputies arrest her despite a total lack of even arguable probable cause. District court: It's too soon for the officers to invoke qualified immunity. Try again at summary judgment. Eleventh Circuit: Vacated. It's never too soon to invoke qualified immunity.
21. And in en banc news, the Third Circuit will not reconsider its opinion that 18-20 year olds are members of "the people." One judge "dissenting sur denial" says the original panel don't know much about history.
22. And in cert denial news, the Supreme Court will not review the Fifth Circuit's grant of qualified immunity to a SWAT commander who ordered his team to raid the wrong home.

Victory! Last September, Kalispell, Mont. officials voted to shut down the Flathead Warming Center, a 50-bed homeless shelter that is clean, well-organized, and had never been cited for any code violations. Asked by a federal judge where he expected people to sleep instead (in below-freezing temperatures), the mayor said, "They have to go back into the trees." But this week, the city agreed to permanently reinstate the shelter's permit. The shelter, consistent with its long-standing commitment to being a good neighbor, agreed to organize cleanup patrols and to maintain its high standards for its guests' behavior. "With this legally-binding agreement in place, we can finally look ahead with renewed hope," says the Center's director, Tonya Horn. "Addressing homelessness is divisive in our community. We seek reconciliation and collaboration. The work is far from over; we cannot do this work alone." Click here to learn more. Or click here for a neat little interview about the case.

Comments

[John F. Carr]

The unpublished Tenth Circuit plaintiff was not only subject to a zero-tolerance policy, he and his neighbors were assigned their own personal pair of police officers who knew who were the good guys and who were the bad guys in the ongoing dispute.

[John F. Carr]

Ask your doctor if dithyramb is right for you.

[SMP0328]

17. Man is charged with four counts of assault with a deadly weapon in Indian country after stabbing his then-girlfriend. (She survives.) After being read his Miranda rights, he keeps quiet until trial, where he first testifies that he acted in self-defense. The jury convicts after the gov't repeatedly references his post-Miranda silence to cast doubt on his credibility. Tenth Circuit: The right to remain silent implies that you won't be punished for exercising it. And that violation may have changed the outcome in this "credibility contest between two proven liars." Reversed and remanded.

If Miranda could be used against a defendant at trial, it would be useless. This should be common sense for any trial judge.

[Noscitur a sociis]

The trial judge didn’t rule on the question, because the defendant didn’t object to the comments and questions that he challenged in the appeal. However, while it’s certainly true that invocation of post-Miranda silence can’t by used against you, see Doyle v. Ohio, 426 U.S. 610 (1976), I’m not sure a different rule would make it “useless”. After all, plenty of people invoked their right to remain silent at trial even when that could be explicitly held against them.

[SRG2]

As I noted in the daily SC thread, the modern English caution would have applied here, that "it may harm your defence if you do not mention when questioned something which you later rely on in court"; As a constitutional matter, the ruling is right. As a matter of logic, no.

[post hoc ergo propter hoc]

it was used as impeachment on cross, though, where you can use evidence from illegal searches (suppressed, fruits of poisonous tree etc) and even unmirandized confessions, to impeach the testimony offered-- generally to stop perjury of 'i had no drugs' when they had lots of drugs but illegal search. that rule in effect prevents defendant from testifying even if he wants to.

I agree the silence goes too far, especially in a case where it's he said/ she said but it's not so far afield of other miranda etc cases and reasoning and impeachment rationale. inferring from silence is just an inherently weak inference though, that's a good reason to exclude it.

[John F. Carr]

"rerouting the thief-airman's next paycheck to an orphanage in Siberia"

Was the check cashed in Siberia? It's not clear if the conviction for larceny means the check was cashed or the check was stolen from its rightful owner.

During the Iran-Contra affair there was a typo in a wire transfer and a random third party got the money instead of the Contras. I believe the money was never seen again. Millions dropping into your bank account uninvited must be the day to day routine of international finance.

[Rossami]

Since all servicemembers have been required to use ACH (that is, direct deposit) since ... sometime in the 80s if I recall correctly? ..., the check is automatically "cashed" when it is routed to any legitimate bank routing number and account. There was no paper check involved.

[John F. Carr]

In the Arizona voter registration case the opinion doesn't begin until page 16. There are long lists of parties and lawyers and a summary by overworked court staff.

[LawTalkingGuy]

Seventh Circuit strip search opinion is absolutely terrible. Complete lawyer-brain disengagement from how violating it would be for a person to endure a body cavity search. “Oh they only had to stand there naked holding their butthole and vagina open while an armed stranger looked inside for 20 seconds. It’s okay because there wasn’t penetration.” What the actual fuck!?

And I don’t see how this is reasonable in the context of the incredibly dumb reason this person was arrested in the first place. Literally was baking cookies while people had a loud college party. Decided to arrest her for a misdemeanor. Instead of just dispersing the party.

https://law.justia.com/codes/indiana/title-7-1/article-5/chapter-7/section-7-1-5-7-8/#:~:text=Sec.,alcoholic%20beverage%20to%20a%20minor.

If they had to charge couldn’t they have done a fucking summons? Absolutely no reason, none, to think this person had contraband in her body.

If you explained to a jury this set of facts I don’t think it’s reasonable to assume they’d side with the cops/guards as the court does.

Even if the legal result is correct, which I find highly dubious, this opinion is still absolutely terrible. It’s remarkable that not one of them excoriated the police/guards here. Circuit Judges will go on all sorts of rants in concurrence about all sorts of things, but the State violating someone in such a serious manner over a misdemeanor, particularly this one, isn’t worthy of comment. College aged people of legal drinking age letting under 21 college kids have alcohol happens literally all the time. I bet these assholes, their kids, their clerks, or their friends have done this at some point. Do they think that it would be okay for a stranger to force them to bend over naked while they looked inside?? I doubt it. And they should put themselves and that position and at least say: this is wrong.

American federal judges are the most likely to use florid language about liberty and also the most likely to see the grossest degradations of it by the government as A-okay and barely worthy of comment. Absolutely shameful shit.

[Noscitur a sociis]

Also, here's a Seventh Circuit opinion considering whether a cavity inspection is part of a jailhouse strip search or whether it is instead a separate search requiring a separate justification.

I don’t think that’s an accurate description of the issue: at least as framed by the opinion, the plaintiff’s position was that they were required to stop the strip-search process as soon as they found out she was wearing a body suit with snaps that fastened between her legs.

[JoeFromtheBronx]

I appreciate references to Friends. The author was born in 1971, so he could have been a fan when it was first on.

[vaadu]

21. Should have provided more context. This is a 2nd amendment case pertaining to the earliest age for purchase of firearms.

... the right of the people to keep and bear arms, shall not be infringed.

[arpiniant1]

AS long as they are in the militia
funny how bobbleheads cannot read more than one sentence

[MatthewSlyfield]

No, that's not what it says. And the whole 2A is only one sentence.

[Davedave]

"Addressing homelessness is divisive in our community"

It's a failed state. Shut it down, break it up, send the occupants to camps and repopulate. It's the only way, at this point.

How the actual fuck can anyone object to helping the homeless? That isn't a thing that happens anywhere else, but it's been normalised in the good ol' USA.