Short Circuit: An inexhaustive weekly compendium of rulings from the federal courts of appeal

White House press passes, Wikipedia edits, and same-sex weddings.

New on the Short Circuit podcast: We recorded an episode at our tenth anniversary show last week. Hear from Eugene Volokh and Raffi Melkonian about video dissents and one arbitration to rule them all.

• California assesses a tax on in-state hospitals that it uses to generate matching federal Medicaid funding and then distributes the funds as supplemental payments to hospitals treating Medicaid patients. The funds are supplemental, acting as a bonus to hospitals for treating the state's Medicaid patients. But wait! Out-of-state hospitals treat California Medicaid patients and can't get any of those supplemental payments. D.C. Circuit: Which is totally fine. Because it's merely a supplement after the base costs are paid (to in-state and out-of-state providers alike), it doesn't discriminate against interstate commerce. Dissent: But it violates a federal regulation that requires the state to pay for out-of-state services to the same extent it does in-state services.
• Two types of passes are available for journalists wishing to access the White House Press Area: hard pass (expedited security line, no escort needed) or day pass (daily application and escort from gate to press area). Hard passes are only available to reporters already accredited by the SCOTUS or congressional press galleries. First Amendment violation? D.C. Circuit: No. It's a reasonable and viewpoint neutral policy for accessing a nonpublic forum.
• An expelled Tar Heel alleges (among other things) that after a fellow UNC student testified against him in a Title IX hearing, he is somehow allowed to cross-examine only her attorney, not the complainant herself. Fourth Circuit: Going forward, some kind of cross-examination of witnesses must be available in Title IX proceedings at state universities, even if just by a neutral panel. For now, though, a mishmash of immunity doctrines bar the expellee's claims for damages. He might still be able to get equitable relief.
• To discourage vexatious litigation, prisoners who have filed three or more particularly weak lawsuits can't file more federal lawsuits without paying the usual filing fee, unless they're in "imminent danger of serious physical injury." Which one Virginia prisoner might be, holds the Fourth Circuit, at least when he's alleged that prison officials made him spend six hours in the cold in a dog cage, and they continue to retaliate against prisoners who complain about mistreatment.
• Thankfully, you don't see too many concurrences these days about the 13th Amendment's authorization for Congress to pass laws against slavery. But if you want to read a sad Fourth Circuit case affirming convictions under the Trafficking Victims Protection Act, which definitely covers forced labor inside the home as well as outside it, here you go.
• The caption caused your middle-aged summarist to do a double-take, but the appellant referenced in this unpublished Fourth Circuit decision is a different convicted murderer named Willie Horton.
• Texas judge refuses to perform same-sex weddings; will perform opposite-sex weddings. State Commission on Judicial Conduct says that judges should not conduct their private activities in ways that could suggest they're biased. Judge sues the Commission under the First Amendment. Fifth Circuit: But does that rule even apply to this? Question certified to the Supreme Court of Texas!
• This rather anticlimactic Fifth Circuit decision is about strip clubs. Sounds fun at first, but all you'll get is an eyeful of res judicata.
• Are the officers who arrested a journalist for asking questions of a government employee entitled to qualified immunity in the journalist's First Amendment lawsuit? District court (2020): Yes. Fifth Circuit (2021): No. Fifth Circuit (2022): Still no. Fifth Circuit (en banc, 2024): Wait, actually, yes. Supreme Court (2024): Maybe rethink that one, guys. Fifth Circuit (en banc, this week): Shan't. It's still yes.
• Any case where there's a preliminary injunction ordering the defendant to stop making edits to its opponent's Wikipedia page and to "[r]emove all images of the cartoon East Asian woman vendor from its webpages" is a case where things have gotten a little out of hand—and also, per this unpublished Fifth Circuit decision, one where the injunction violates the First Amendment.
• Texas trespass law requires property owners who want to exclude people carrying firearms from their property to say so via a big and very specific sign. Fifth Circuit (unpublished): And requiring them to put up that sign creates a plausible First Amendment injury. (Dissent: They put up the sign because they agreed with it. How is that a First Amendment problem?)
• Can faith-based organizations state a claim under RLUIPA by alleging that local land-use decisions effectively prevented them from visiting the graves of their enslaved ancestors? Fifth Circuit: Under RLUIPA and under a bunch of other stuff as well.
• Sixth Circuit: How in the world could this prison guard have been deliberately indifferent to a prisoner's medical needs when the guard didn't even work for the two days when medical attention was denied? (But as for the part where that same guard caused those injuries in the first place for seemingly no good reason? Yeah, no qualified immunity there.)
• If you loved Brown I, Brown II, Brown III, Brown IV, and Brown V, then boy has the Sixth Circuit got a treat for you.
• Iowa prisoner injures his knee. It gets worse and worse—his hip also starts to hurt and eventually his other knee goes south as well. Along the way prison staff recommend a knee brace and ibuprofen but pooh-pooh various requests for MRIs. When he finally gets the MRIs, they lead to surgery. He claims that one reason for the delay was the possibility that he might get parole, which would have obviated the prison's responsibility. District court: And there's enough evidence to make this a question of fact. To a jury! Eighth Circuit (over a dissent): Affirmed.
• One thing you'll learn from the latest new-pronouns-don't-tell-mom case, this time from the Ninth Circuit, is that identifying fundamental rights isn't like qualified immunity. So there's that.
• If you're curious about how to write jury instructions in a Hobbs Act extortion prosecution, this little ditty from the Eleventh Circuit (where a Dixie County, Fla. defense attorney successfully overturns a conviction) should satiate that desire.
• Black HOA board member complains of racist treatment by others in the HOA, including selective enforcement of HOA rules and fees, calling people of color "monkeys," and saying "bye, Felicia" to her when that is not her name. District court: The laws you're bringing up—the FHA and Sections 1981 and 1982 of the Civil Rights Act—don't even apply to these facts. Case dismissed. Eleventh Circuit: "Home ownership has long been viewed as the heart of the American Dream." Case undismissed.
• And in en banc news, the Eleventh Circuit will not reconsider its earlier decision holding that Title IX does not provide an implied right of action for sex discrimination in employment. Two judges concur in the denial, explaining that sex discrimination in employment is a matter for Title VII, while five judges dissent from denial.

IJ's first case way back in 1991 was on behalf of African-style natural hair braiders who challenged Washington, D.C.'s requirement that they get full cosmetology licenses to practice their craft. After we won that case, we took the fight nationwide, and this week New Mexico became the 37th state to exempt natural hair braiders from their cosmetology licensing regime. Learn more here.

Comments

[windycityattorney]

Don't have anything substantive to say about the cases; just wanted to chime in to say these Fri summaries are always an interesting and enjoyable read.

Keep up the good work.

Truth social signoff: THANK YOU FOR YOUR ATTENTION TO THIS MATTER!!

[John F. Carr]

On the gun sign case:

Texas could avoid the First Amendment problem by repealing the ability of property owners to ban armed people en masse instead of on an individual basis. Then the "no guns" sign ceases to have legal effect. It means "we reserve the right to ask you to leave if you have a gun." And then you are trespassing under any definition.

The church sued the police and DA. What are they supposed to do? Prosecute people who are not breaking the law? The plaintiff wants to diminish the rights of third parties without suing them directly. I agree with the dissent on this point.

[Area Man]

Yeah, this case doesn’t make much sense. The law says that if the right sign isn’t there, then that is effective written notice. If it’s not, then notice has to be verbal. If there’s no verbal or effective written notice, then the police can’t legally arrest and the DA can’t prosecute. So these entities may be able to take down their signs—which they can do without a lawsuit—but there won’t be any basis to arrest or prosecute unless there was verbal notice. In other words, I don’t see how suing the cops and DA will make any difference, or how they’re doing themselves any favors. They’re essentially making it impossible to prevent people from entering their buildings with concealed handguns unless they tell everyone entering that they can’t have one. Put another way, federal courts can’t rewrite laws that make it possible to arrest and prosecute someone for something that clearly doesn’t violate the law as written.

[Area Man]

Correction: “The law says that if the right sign *is* there, then that is effective written notice.”

[TaioF920]

It's also wrong. They can still ask people to leave, sign or no sign. The sign just makes it illegal for someone to carry inside.

If the sign requirement is held unconstitutional, Texas can just repeal the law entirely, and then the "no gun signs" will have no legal force, just like in many other states.

That's how it should be anyway.

[Dr. Ed 2]

(Dissent: They put up the sign because they agreed with it. How is that a First Amendment problem?)

Exacly

[TextFirst]

"To discourage vexatious litigation, prisoners who have filed three or more particularly weak lawsuits can't file more federal lawsuits without paying the usual filing fee, unless they're in "imminent danger of serious physical injury." Which one Virginia prisoner might be, holds the Fourth Circuit, at least when he's alleged that prison officials made him spend six hours in the cold in a dog cage, and they continue to retaliate against prisoners who complain about mistreatment."

These rules really don't work, because the prisoner just throws in whatever allegations are needed to pass the pleading requirement. Since, as here, the court has to take the pleadings as true, the exception swallows the rule. When it inevitably turns out to be frivolous, what's the court going to do, sanction them? The PLRA was a good start, but prisoners filing frivolous litigation remains an unresolved problem that could use some public policy attention.

[The Margrave of Azilia]

If a jury finds their complaint is perjurious, add to their sentence.

[David Nieporent]

A complaint can't be perjurious. And of course you can't sentence someone to more prison without a conviction. And of course the whole point is to screen out these cases long before they get to a jury. Which almost always happens, contrary to Mr. Prisons Are Too Cushy's claim.

[The Margrave of Azilia]

"And of course you can't sentence someone to more prison without a conviction."

OK, thank you for rephrasing my point.

"A complaint can't be perjurious."

Even if it's attested to under penalty of perjury?

Or if you don't like the term "perjury," why not "serious criminal contempt"? That too would need a jury.

[Krayt]

California assesses a tax on in-state hospitals that it uses to generate matching federal Medicaid funding and then distributes the funds as supplemental payments to hospitals treating Medicaid patients.

Tangentially, this violates my rule to tax something -- anything! -- other than medicine itself to pay for medicine.

Property, income, tarriffs, carburetors, anything else. Do not hook your oxen yoke to the ones saving the lives.

[tkamenick]

Yeah, this is not well thought out. "Give us money. We'll give it back to you. Minus a cut off the top for processing though. You're welcome!"

[Absaroka]

If I'm reading it right, CA taxes the hospital $10, gets fed matching funds of $10 for a total of $20, then gives $18 back to the hospital.

(No idea if those are the right numbers, just that the 'profit' is in getting the federal matching funds)

[John F. Carr]

The Trafficking Victims Protection Act case featured a Pakistani woman forced to work excessively around the house. Her captors, her husband's family, had taken her green card away (18 USC 1592) and told her she was here illegally. The defense argued that family matters are outside of the reach of the statute, pointing to a Sixth Circuit case holding that telling your kids to do chores is not considered forced servitude even if it falls within the literal scope of the crime. The Fourth Circuit refused to extend that precedent to an adult relative. A two judge concurrence noted that the Thirteenth Amendment was intended to end forced domestic labor as well as forced cotton picking.

The complainant was rescued by her brother who came to visit and called the cops when he saw her in-laws hit her.

There was a jury selection dispute. The government removed jurors who were under 30, unmarried, and childless. They were also black. Race was not the motivating factor so no Batson problem.

[The Margrave of Azilia]

Wait, the *prosecution* removed black jurors from a 13th Amendment case?

[John F. Carr]

Right. I believe it wasn't about race. I don't believe the defendant's objection was about race. The law says complaining about race of jurors can get a conviction overturned so the defendant complained about race of jurors.

[Thought about __ all my life]

a recent Elliot Institute study reveals the facts. In a random sample of American women, the researchers report, “Compared to women who had miscarriages or other natural pregnancy losses, women who had abortions had similar levels of grief, depression, and anxiety. But the latter reported much higher levels of guilt, shame, and regret.”

Dr. David Reardon, who authored the study, writes, “Women should be told that if they feel any pressure to abort, or have maternal or moral conflicts with it, negative feelings are more likely than relief. And in many cases, these negative reactions can last for decades. Anything less is deceit.”

Reardon’s wisdom reminds us of another infrequent truth, which is that abortion is built on lies. In the mix of national rhetorical camouflage and brutal reality comes one simple, undeniable fact: Abortion is not a value-free act, it is a deadly act.

[Drewski]

So some guy with a degree from a diploma mill published a "study" he channeled through prayer. You're pretty gullible.

[Dr. Ed 2]

Abortion messes up women -- I've seen it.

[JonFrum]

"Natural hair braiders."

As opposed to unnatural hair braiders?

[Noscitur a sociis]

It’s [natural hair] braiders, not natural [hair braiders].

[Michael P]

Would [unnatural hair] braiders only work on wigs?

[David Nieporent]

I don't think that's right here. They don't specialize in a certain type of hair; they specialize in a certain type of hair treatment. They don't use chemicals and dyes and such; they just braid hair.

[The Margrave of Azilia]

If the Supreme Court is so right-wing extremist and "not normal" (when "normal"=progressive lunacy), you'd think they'd show some sign of it by overruling its same-sex marriage decision.

[TaioF920]

Obergefell is not the problem, Lawrence v. Texas is.

If the state is to be involved in marriage, who marries whom or what is not the state's concern. It is the state's concern, however, if a man is putting his penis in another man's butt, married or unmarried.

[The Margrave of Azilia]

Begging the question of what marriage is.

[John F. Carr]

Has anybody petitioned to overrule it? States kept creating abortion test cases until one of them worked. States have not been creating marriage test cases.

[The Margrave of Azilia]

Yeah, the genius lawyer representing Kim Davis waited too long before raising that issue.