Short Circuit: A Roundup of Recent Federal Court Decisions

Corner crossing, prison typewriting, and an interview with Webster Bivens.

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New on the Unpublished Opinions podcast (which y'all should subscribe to): Impeaching judges, legal media, AI and corpus linguistics, plus golfing dreams.

1. Computer scientist creates an AI-generated image and seeks to have it copyrighted, listing himself as the owner of the work, but naming the AI he designed as the work's author. The Copyright Office denies the application. D.C. Circuit: Correctly. The Copyright Act requires eligible works be authored by humans (whether that limitation is constitutionally required is a question for another day).
2. Eight states sue the Dept. of Education, alleging it cut off grants for teacher/principal training without a reasoned explanation as required under the APA. The lower court reinstates funding via TRO; the dept. seeks a stay. First Circuit: The termination letters lacked an adequate explanation, and the agency's attacks on the TRO are mere "speculation and hyperbole." For now, funding flows. Motion for stay denied.
3. Generally, parties charged with burglary, narcotics offenses, sexual assault, and running a prostitution ring do not fare well in federal court. So how badly did Syracuse, N.Y. officers mess up a 12.5-hour search and seizure of the defendant's residence for the Second Circuit to vacate and remand (over a dissent)?
4. Allegation: At 2020 police-brutality protests, NYPD officers used a tactic called "kettling" to trap and arrest and excessively force protesters and non-protesters without first providing them a warning or opportunity to leave. Many lawsuits ensued. Several reached settlement, under which the NYPD agreed to change certain procedures. But one party refused to sign onto the settlement: the union representing line police officers that had intervened in the litigation. District court: Too bad, the union cannot torpedo the settlement agreement, so the case is dismissed via consent decree. Second Circuit (unpublished): Indeed.
5. Fifth Circuit (over a dissent): Coast Guard servicemembers who were reprimanded for refusing to be vaccinated for COVID-19 have standing to seek a court ruling that the now-rescinded vaccination requirement was unlawful. Their refusal might hurt their chances of promotion, so they face ongoing harm.
6. During 2020 police-brutality protests, Dallas photojournalist is arrested because, officers now say, he briefly walked along the right side of the highway (illegal) instead of the left (legal). Photojournalist: Not so! I was arrested for snapping photos of police brutalizing people. Moreover, I couldn't have safely crossed to the other side of the highway. Fifth Circuit (unpublished): Qualified immunity.
7. Gov't punishes pill-mill operator with several decades' imprisonment and the forfeiture of all sorts of assets, including $400k from the pill-miller's individual retirement account. Tax court: And when that $400k was withdrawn (by the IRS) from your retirement account (to go into the IRS's coffers) it became a taxable "distribution" to you, so you owe the IRS $180k in taxes on the $400k. Sixth Circuit: Reversed. (NB: The miller managed to win this appeal, pro se, on a prison typewriter. No mean feat.)
8. Bivens claims (the old chestnut goes) are available in federal court if and only if your name is Webster Bivens. Seventh Circuit: Add Kevin Brooks to the club. His claim—that federal prison staff let him linger for ten days with agonizing appendicitis—is quite similar to one of the rare Bivens claims the Supreme Court approved, back in the '80s. As to the treating staff, his case may proceed. (For the historically minded, take a look at this fascinating piece by Prof. James Pfander, who, in 2008, interviewed the elderly Webster Bivens and one of the Six Unknown Named Agents of the Federal Bureau of Narcotics.)
9. Milwaukee police stop and detain a 16-year-old boy running with a bag. Uh oh! He's up to good, delivering a holiday turkey to a less-fortunate neighbor. Seventh Circuit: No evidence of discrimination, but officers should know that simply running on a cold winter night in a high-crime area does not give rise to reasonable suspicion of a crime. Also, an admonition to keep attorneys awake at night: "We urge [counsel for both sides] to reacquaint themselves with the [rules] before proceeding on remand. It is hardly fair to their clients for lawyers to overlook deadlines and handle facts carelessly."
10. When an opinion begins with the qualification that the necessary second vote joins everything except "Section IV(B)(3)" what do you do? Exactly. And after your summarist skipped straight there he learned that overall the Ninth Circuit (over a dissent) found a Hawaiʻi law unconstitutional under the Second Amendment. The law voids permits to purchase handguns unless the purchase is made within 30 days and requires some guns to be physically inspected by the police. In the juicy section, the judges split on "opaque dicta in footnote 9 of Bruen."
11. No preliminary injunction to prevent enforcement of an Idaho law requiring public school students to use the restroom and changing facility corresponding to their "biological sex." That's partly because, as the Ninth Circuit put it, "not exposing students to the unclothed bodies of students of the opposite sex" and "protecting students from having to expose their own unclothed bodies to students of the opposite sex" are "important" gov't objectives.
12. Second Amendment enthusiasts may want to read the Ninth Circuit en banc decision upholding California's ban on "large-capacity magazines." Dissent: And they may also want to watch, like, and subscribe!
13. In 1990, California inmates file a class action against the state for providing inadequate mental healthcare in prisons. They win, but after 30 years the state has still not come into compliance with the remedial orders. District court: And that's going to cost the state $110 mil in civil contempt. Ninth Circuit: They're definitely in contempt—probably for tens of millions of dollars—but explain that specific number a bit more.
14. Perpetrator of what was then the second largest data breach in U.S. history faces a sentencing guideline range of 14–17.5 years, but the district just sentences her to time served (approximately 100 days) and five years' probation. Unreasonable? Ninth Circuit: Yes. Dissent: That may be the majority's opinion, but it's not an abuse of discretion.
15. Can Kari Lake's lawyers be sanctioned for filing her failed lawsuit challenging Arizona's voting system? Ninth Circuit (over a dissent): Yes. Also Ninth Circuit: But not Alan Dershowitz.
16. "Does a district court have the power to order an intervenor to return or destroy confidential documents that were inadvertently disclosed to it by another party?" Ninth Circuit: Intervenors are parties, so obviously yes.
17. Allegation: Intoxicated woman hits her boyfriend and takes a walk around her neighborhood to cool off. Pierce County, Wash. deputies arrive to the home, not the first time they've been there, and announce a plan to "teach her a lesson." They send Zepp the dog to find her, which Zepp does, causing long-term injuries. Ninth Circuit (unpublished, over a dissent): It's clearly established that letting a dog continue to bite someone who is physically unable to show their hands and surrender is excessive force. No qualified immunity.
18. The American West contains millions of acres platted into alternating squares of public and private land like a checkerboard. Moving diagonally across public property requires corner-crossing: stepping across adjoining corners of public land without actually touching private land—but momentarily occupying private airspace. A ranch owner on Wyoming's Elk Mountain resolutely opposes corner-crossers, erecting chains to prevent crossings, scaring away hunters' game, seeking criminal trespass charges (resulting in acquittals), and suing for civil trespass. Tenth Circuit: There is no trespass so long as the hunters don't physically touch the private land. (Fellow nerds: This case brings it all, from 13th century conceptions of airspace to Manifest Destiny.)
19. Allegation: Douglas County, Colo. deputies responding to 911 call of a break-in arrive at the home, put Sig the dog through a broken window, and order him to bite anyone he finds (child, adult, whomever). Sig obeys, attacking man asleep in bed. Man screams, cops enter house and ask questions while Sig continues to gnaw. They handcuff and arrest the man, he's transported to the hospital, and they search his home. As it's not illegal to sleep in one's own bed, he's not charged with any crime. Tenth Circuit: It was clearly established that all of this violated the Fourth Amendment. No qualified immunity.
20. Can Florida ban those under 21 from purchasing firearms? Eleventh Circuit (en banc): Yes. Dissents: No. This result differs from the Third, Fifth, and Eighth Circuits and puts this issue on everyone's circuit-split bingo card.
21. And in en banc news, the Fifth Circuit will not reconsider its decision that under federal law all mailed-in ballots must be received by election officials (not just mailed to them) by the day of an election.

Friends, there's nothing we love more than winning a big case in court. But sometimes all that's needed to make gov't officials do the right thing is a little nudge, and we'll take that too. Case in point, Broward County, Fla. officials recently ordered Leann Barber to tear out a community garden where she and her neighbors have spent years planting fruit trees, vegetables, and native plants on a vacant lot she owns in her residential neighborhood. It's also the home of her nonprofit, which teaches kids how to garden, cook, and more. Tear all that down? Ridiculous! But as it turns out, a letter from IJ with a friendly reminder that state legislators passed a right-to-garden law in 2019 was enough to get the county to drop the citation (which was purely a zoning-conformity thing, not an actual health-and-safety thing). Huzzah for happy endings! Click here to learn more.

Comments

[Currentsitguy]

Good on the gardening decision. It is nobodies business whether I garden, or where I chose to plant it. My wife is a SERIOUS gardener. She is a Certified Penn State Master Gardener. She chairs the Penn Stated sponsored County Senior Vegetable Demonstration Garden as well as volunteering at the State Historic Site Old Economy Village.

We live on a heavily wooded acre. There are 26 mature oaks packed onto this property which leave only one spot of sun that isn't permanently shaded. It happens to be in the front, along the road, adjacent to the driveway. We've got 24 raised beds jammed into that space.

We grow crazy stuff there for PA. I've got rare Mexican and Andean wild hot peppers, as well as wind precursor tomatoes about the size of peas. I've grown bananas and passionfruit to fruit. During the growing season people on motorcycles, antique cars, people just out for a drive, even the police stop or pass by to admire, ask questions, and chat. This garden is by no means an eyesore. Grass is an eyesore IMHO, but that's a different subject.

In any event, so long as no one is creating a public hazard, people should be able to do with their property as they see fit, particularly if they are benefiting the community with the production of real food.

[con_fuse9]

No.
Gardening hardly hurts a community. If they leave old rusty tractors on the lot.... OK now its an eye sore - but generally speaking no.
Beyond that, however, there are community standards - zoning laws etc. that keep things reasonable. Now, all we have to do is get the zoning and permitting departments to follow the law.

[GKHoff]

It's not an eyesore, it's yard art.

[Bwaaah]

"Now, all we have to do is get the zoning and permitting departments to follow the law."

With all due respect, no. You're a choke on creativity and development. "Community standards" is a nice way of saying, "Your property, our way."

[Krayt]

The purpose of government is to get in the way, until paid to get back out of the way.

[Thought about __ all my life]

NO, we need to undo Wickard v. Filburn.
"Filburn was a small farmer in Ohio who harvested nearly 12 acres of wheat above his allotment under the Agricultural Adjustment Act of 1938. Filburn was penalized under the Act. He argued that the extra wheat that he had produced in violation of the law had been used for his own use and thus had no effect on interstate commerce, since it never had been on the market"

[Noscitur a sociis]

What in the world do you think that has to do with this issue?

[John F. Carr]

The important part of the First Circuit case, because it applies to other members of the wave of anti-Trump lawsuits, says that the exclusive jurisdiction of the Court of Federal Claims over contract disputes does not prevent contract-related disputes from being heard in injunction-happy District Courts.

[ReaderY]

I seem to recall that you agreed with Nebraska v.Biden. Why? Since Missouri’s only basis for standing was a contract, shouldn’t their exclusive remedy for the contract breach have been the Court of Claims? What right did they have to file suit in federal district court to claim that Biden’s action violated his authority under federal law as a separate and distinct matter from their contract claim? What right did they have to ask for injunctions at all, let alone injunctions involving cancellations of any loans at all other than the ones they had contracted to process, let alone the universal injunction on Biden’s entire program that they ended up getting?

Why wasn’t a minor case in the Court of Claims awarding them maybe a few hundred thousand dollars or so for the lost processing fees on the canceled student loans they had contracted to process all the legal process and all the relief they were entitled to?

[ReaderY]

I actually raised this issue myself at the time - I wrote that Missouri might only be entitled to have its losses made good rather than get a universal injunction on the whole program. But the Supreme Court decided otherwise, and that’s that. What’s sauce for the goose is sauce for the gander, as they say, and grounds that are good enough to justify enjoining a Biden action as in excess of authority are also good enough to justify enjoining a Trump action.

[John F. Carr]

I wasn't thinking about the Court of Federal Claims at the time. I agree Missouri could have been made whole with a money judgment. I don't know if the Court of Federal Claims would have heard a claim, or if the dollar value needs to be more definite. A lot of the mass lawsuits against the Trump administration involve definite amounts of money owed under a contract. "My contract says I get 50% indirect cost recovery and the last payment only included 15%." "I did my part of a $10 million contract to spread progressive propaganda around Central America and the government refused to pay the invoice."

[John F. Carr]

I thought the checkerboard case with its history of the world was longer than it needed to be. The essence of the case is
1. A federal statute prevents people from obstructing access to public lands. The way lots are laid out in the relevant area requires public land to be accessed by crossing corners of private lots.
2. This is not a taking of a tiny slice of the corners of non-public lands because of some reason your commenter does not understand.

If public lands were the creamy filling inside a privately owned donut then somebody might need to be paid, but maybe not even then.

[Absaroka]

1)I wonder why the government doesn't seek an 'easement by necessity' across the relevant corners. Just put in a 30 ft wide easement.

2)Dunno if apropos: our (rural) land is crossed by a dirt road that has traditionally been open to the public. Only a couple of people have actual easements to that road. It is not a public road, as in no one maintains it but me (or the other easement holders if they so desire). The explanation I got from the county is that it is 'traditionally open to the public' and so cannot be gated, for example. When an upstream (uproad?) neighbor tried to put up a gate, the sheriff came out and told him to take down the gate.
Just as an IANAL dweeb, I'm OK with that; if the various landowners in the area all put in locked gates there would be hundreds of acres of public land that couldn't be accessed (except by us). That seems wrong.

3)The wealthy landowners who are upset with corner crossing because they want to use public land as a private preserve ... are not nice people.

[Bwaaah]

"3)The wealthy landowners who are upset with corner crossing because they want to use public land as a private preserve ... are not nice people."

Fred Eshelman is the name of that not nice person behind "Iron Bar Holdings." He's a pharmaceutical executive from North Carolina.

After reading the case, all I wanted to know is, "Who is/are the not nice person(s) behind this?"

[Thought about __ all my life]

The Federal govt OWNS over 50% of
Alaska, Idaho, Nevada Oregon and Utah.
AND
BLM oversees more than 247.3 million acres (1,001,000 km2) of land, or one-eighth of the United States's total landmass.
AND the crowing disgrace Ithans to stupid Biden):

August 30, 2024
The U.S. Interior Department’s Bureau of Land Management (BLM) has proposed a plan that will allow utility-scale solar development on up to 31 million acres of public land.

[Kazinski]

This is good to know:
"Moving diagonally across public property requires corner-crossing: stepping across adjoining corners of public land without actually touching private land—but momentarily occupying private airspace."

I have property that abuts National forest on one corner. one of the adjoining property owners, who is seldom there, hasn't impeded access there, but he has cut down two trees to block the dirt road which leads to another National forest access point, which has a recorded easement, and also is the only way for another property owner down the road to reach their parcel.

People can be funny.

[Bwaaah]

"People can be funny."

Yeah. But not "ha ha" funny.

[tkamenick]

Yeah, that's the key of all this. It's easy to miss the fact that you can step from corner to corner without touching the land underneath on the abutting parcels, although parts of your body will go over those abutting parcels.

A hyper technical reading of the common law would still make that a trespass, and as we're taught in law school, all trespasses to land are tortious, even if you don't cause any damage to the property. But this is still a much more sensible rule. And if you really had to deal with the underlying common law without changing it, the way to do it would be to find an easement of necessity had been created permitting brief trespass to cross from corner to corner.

[John F. Carr]

The Tenth Circuit anticipated that state courts would adopt this technical reading of the common law. The Wyoming legislature has considered a bill to explicitly make corner crossing legal.

[Thought about __ all my life]

THe Federal Govt OWNS 46.7 % of WYOMING
https://ballotpedia.org/Federal_land_ownership_by_state

[MatthewSlyfield]

#11:

No preliminary injunction to prevent enforcement of an Idaho law requiring public school students to use the restroom and changing facility corresponding to their "biological sex." That's partly because, as the Ninth Circuit put it, "not exposing students to the unclothed bodies of students of the opposite sex" and "protecting students from having to expose their own unclothed bodies to students of the opposite sex" are "important" gov't objectives.

Who are these people and what have they done with the real Ninth Circuit?

[John F. Carr]

Trump made the Ninth Circuit a lot closer to normal and there's a one third or better chance of drawing a conservative panel. A conservative panel decision on a culture war issue is likely to be vacated by the whole court. This happened in the Idaho case on emergency room abortions.

[Noscitur a sociis]

This was an opinion by Morgan Christen, and Kim McLaine Wardlaw was on the panel, so… not really.

[Krayt]

When this site first blew past this issue when it originally came up, they mentioned something about a court ruling (SC?) that government could not force people to expose their genitals to the opposite gender, nor force them to be exposed to it.

It had the feel of old school protection of female sensibilities and modesty, but no matter.

I guess people whose faces flush at a wang can be sent to psychological treatment camps. First your face flushes, then you are sent to the camp, where it fades back. Then it flushes again as you are trained to feel shame over what you felt before.

[MatthewSlyfield]

You seem to think I was criticizing the decision. I was not. I was merely expressing shock at such a sane decision coming out of the Ninth Circuit.

[Davedave]

5. seems extraordinary. Members of the coastguard claim that refusing to take even the slightest risk to their own lives to save the lives of others shouldn't harm their career prospects? If that were true, they would be able to retain their jobs while refusing to set foot on a boat.

[Archibald Tuttle]

So an AI or its creators cannot be treated as a person for copyright purposes, but an AI or its creators should be treated as a person for for purposes of libel or defamation litigation.

[mse326]

They didn't answer whether it has to be a human constitutionally. Only that the copyright act requires it be a human. Different statutes can treat the same entity differently.

Also almost all defamation is under state law, which obviously varies by state. Copyright is solely a creature of federal law. So it isn't even the same jurisdiciton treating it differently.

[Archibald Tuttle]

I'm sure you're right. It just illustrates how wildly contradictory the law can be.

IANAL. In my life, I choose science rather than law. I don't think I could tolerate law.

[ReaderY]

Nothing to do with “or its creators.” The creator in this case deliberately disclaimed any interest in the work because he wanted a precedent where the AI itself was assigned a copyright. So nothing in this case affects what would happen in a case where the creator of the AI wasn’t out to make a point and asserted ownership rights.

[TextFirst]

"In 1990, California inmates file a class action against the state for providing inadequate mental healthcare in prisons. They win, but after 30 years the state has still not come into compliance with the remedial orders. District court: And that's going to cost the state $110 mil in civil contempt. Ninth Circuit: They're definitely in contempt—probably for tens of millions of dollars—but explain that specific number a bit more."

Accepting the merits of the class action as a given, some of this seems pretty hard to do. For instance, the court is imposing a maximum 10% vacancy rate for various professional jobs. But prison work is among the least desirable career outcomes, in large part because you have to work with prisoners. It's only really possible to fully staff prisons if the economy is dire and there aren't other options. It's not as if California can just crash the economy so prison jobs look better than the alternatives.

[CindyF]

"California woman strangled to death while on overnight prison visit with quadruple murder convict husband"

https://www.foxnews.com/us/california-woman-strangled-death-overnight-prison-visit-quadruple-murder-convict-husband