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

Hapless lawyers, police auditors, and Welsh laws.

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

New case: Officials in James Island, S.C. say they are using eminent domain to take IJ-client Kyle Taylor's property to build a park. But it's a ruse! The land is ill-suited to be a park; that's just something the town made up after caving to NIMBYs who don't want anything built. Indeed, Kyle's plans are fully compliant with the zoning, and he's spent years jumping through every hoop the planning commission threw at him. The taking is pretextual, which the Fifth Amendment forbids. Boo hiss.

New on the Bound By Oath podcast: The Fifth Amendment says that the gov't must pay just compensation when it takes private property, a command that, regrettably, is often treated as a mere suggestion. On this episode, we take a look at a variety of gambits and flim-flammeries that let the gov't take property without paying for it.

New on the Short Circuit podcast: IJ's school choice leader Michael Bindas discusses a qualified immunity case about a police shooting. (Which, believe us, is actually relevant to school choice.)

1. Independent journalist runs a YouTube channel, "Long Island Audit," where he posts his encounters with police. He's arrested for trying to record in an NYPD stationhouse lobby. District court: No preliminary injunction on his First Amendment claim, but supplemental state law claims are likely to succeed. Second Circuit: Perhaps, but the state statutes are kind of unclear and new. Certified question to the New York Court of Appeals!
2. Qualified immunity is the Veg-O-Matic of modern constitutional law—It slices! It dices! It kicks plaintiffs out of court!—but it doesn't, the Third Circuit reminds us, change the basic rule that a plaintiff's complaint need only contain a short, plain statement of facts, not allege enough facts to show a right was "clearly established."
   
3. 18-20 year olds may be able to vote these days, but because at the Founding they were "infants" for purposes of contracting it's fine to prohibit them from buying handguns, says the Fourth Circuit (over a dissent).
4. Pretrial detainees: Judges in Prince George's County, Md. apply policies that arbitrarily deprived us the opportunity to be bailed out. District court: You cannot sue because of arcane principles of judicial absolute immunity. Fourth Circuit: Actually, it's arcane principles of Article III standing that mean you can't sue the judges. But you can sue the county, and it has no immunity.
5. Is a Welsh law adopted under Henry VIII "relevantly similar" to the federal ban on possessing a firearm within 1,000 feet of a school? Fifth Circuit: For this guy? (Who for days slept in his car parked by a Beaumont, Tex. school, had notes referencing Islamic terrorists on his phone, and told a concerned parent that he had a "mission" that meant that after tomorrow no one would ever see him again.) Sure, close enough. Second Amendment defense is denied.
6. Man who's high on PCP crashes car and, though handcuffed, thrashes and struggles against Harris County, Tex. officers trying to get him into the back seat of a police SUV. An officer tases him repeatedly in drive-stun mode. He dies. Too much force? Fifth Circuit (over a dissent): Nope.
7. Handcuffed detainee curses, pulls away from Saginaw, Mich. officer, who suplexes him headfirst into the ground, fracturing the detainee's skull. Sixth Circuit (unpublished): To trial this must go. No qualified immunity. No municipal immunity.
8. Another week, another Seventh Circuit panel eviscerating hapless lawyers for failing to comply with briefing requirements—this time, the requirement to include in the appendix all orders and oral rulings under review. In a charming variant on Muphry's Law, the panel also fulminates at having been obliged to waste time "pouring through the record." See generally Bryan A. Garner, Garner's Modern American Usage 643 (3d ed. 2009) ("This blunder occurs in writing not pored over carefully enough by a good proofreader . . . .").
9. Allegation: Camden County, Mo. man repeatedly criticizes local officials—for instance, accusing them of overpaying for a building purchased from a county employee. They retaliate by banning him from county property for a year and criminally investigating him after he votes at the courthouse. Eighth Circuit: To trial this must go.
10. During the War of 1812, a New York militiaman declined President Madison's call to federal duty, and, after a court martial, the state seized his property to pay off his fine. In 1827, the Supreme Court upheld the fine and upheld the president's delegated authority to call up state militias, further noting that any "wanton tyranny" that resulted could be remedied at the ballot box. Ninth Circuit: The recent unrest in Los Angeles seems unrest-y enough to fall within the president's delegated authority. TRO stayed. [PI hearing is today]
11. California probationer is subject to a warrantless search condition, which allows police to search his person, property, or residence without a warrant. Acting on a tip, police catch man with drugs and search his car and apartment. Man challenges search of his apartment, arguing that police did not have probable cause to believe it was his residence (though it was). Ninth Circuit: They had plenty of probable cause. Concurrence (joined by two judges): But we should take this case en banc to remove the probable cause requirement, which makes it easier for probationers to keep safehouses for illegal activity. Concurrence (joined by one judge): If California wants to change the conditions of supervised release, that's up to them, not us.
12. When Grants Pass, Or. public-school employees (working in part on school time) started a campaign to change the school's new policy on transgender students, a firestorm ensued, as staff, parents, students, and (apparently) internet randos all filed complaints about their efforts. Ninth Circuit: That's definitely disruption, but was there enough disruption to justify firing the campaigning employees? Who knows? You guys should go find out at trial!
13. Cameras capture two men and a woman arriving via Jeep at an Artesia, N.M. motel, leaving two hours later with the woman sobbing, and the men returning three hours later without her. Her body is found that afternoon, shot 21 times. The men are charged with federal kidnapping because, according to the feds, vehicles are instrumentalities of interstate commerce, making all car-related kidnappings federal. Tenth Circuit: "The Constitution does not tolerate such extremities" as allowing the feds to regulate everything that moves. (Ed. note: Arguable circuit split alert! Check out the Sixth and Seventh circuits.)
14. Oklahoma City police detain driver whose passenger is wanted for failing to appear in court. Ten minutes after the passenger is arrested, a drug doggie arrives on scene, does an open-air sniff of the vehicle, and alerts. Driver: Suppress the evidence? Tenth Circuit: Indeed. Vacated and remanded.
15. Colorado podcaster is subpoenaed to testify at deposition in a defamation lawsuit brought by a former executive at Dominion Voting Systems. Halfway through the deposition, the podcaster leaves the courthouse and starts bragging about it on his podcast. He's held in civil contempt and appeals the contempt order. Tenth Circuit: Affirmed, and your arguments on appeal were so frivolous that you're paying fees for this, too.
16. And in en banc news, the Second Circuit will not reconsider its opinion affirming a $5 mil award ordered against President Donald Trump for sexually assaulting and defaming E. Jean Carroll. Two judges dissent, arguing that the trial court should have excluded evidence of previous sexual assaults allegedly committed by the president, because, in their view, the evidence didn't show any particular modus operandi besides the president's being generally sexual-assaulty.

New case: In April, Perth Amboy, N.J. officials declared that properties owned by IJ clients Honey Meerzon and Luis Romero, a multi-family home and an auto-repair shop, are "blighted," a designation that allows the city to use eminent domain to seize them for a private developer. But the properties are not blighted, and the study that says otherwise is chock-full of egregious errors—claiming, for instance, police stops of passing drivers as police visits to the properties. The designation is an end run around New Jersey law, which does not allow for blighting properties absent conditions that really, truly, actually threaten public health and safety.

 

Comments

[John F. Carr]

Seventh Circuit: As I have observed before, the scolding would be a lot more effective if the decision was "The appeal is dismissed for failure to comply with Cir. R. 30(b)(1)."

Second Circuit: If the case did not involve a VIP, would there be any written opinion in the en banc order?

[David Nieporent]

Second Circuit: If the case did not involve a VIP, would there be any written opinion in the en banc order?

It should be noted that the 2nd Circuit is the stingiest in the galaxy about en banc rehearing; it might be easier to get SCOTUS to grant cert than to get the 2nd Circuit to go en banc.

[David Nieporent]

Seventh Circuit: As I have observed before, the scolding would be a lot more effective if the decision was "The appeal is dismissed for failure to comply with Cir. R. 30(b)(1)."

In a civil context, sure. But dismissing a criminal appeal, as this was, because of deficiencies of counsel is no bueno.

[TextFirst]

If the Seventh Circuit consistently has the problem that trained appellate advocates struggle to obey their rules, could the problem be on the rules' end? I've never practiced in that circuit, but the scavenger hunt of standing orders, judge rules, circuit rules, and what's just accepted practice is a real mess. And I'm hard-pressed to believe litigation in the Seventh is so different than the Fifth that the rules can't be harmonized. Some simplification and consolidation of this procedural nonsense would be great.

[orin ed deniro]

"In a charming variant on Muphry's Law," your summarist misspelled Murphy's.

[Davedave]

There's a link you could have clicked on which might have enlightened you:

"Muphry's law is an adage that states: "If you write anything criticizing editing or proofreading, there will be a fault of some kind in what you have written." The name is a deliberate misspelling of "Murphy's law"."

[IANNAL]

"There's a link you could have clicked on[,] which might have enlightened you:"

(The prescriptivists might change "which" to "that" instead of adding the comma.)

[Stupid Government Tricks]

What exactly does this mean?

3. 18-20 year olds may be able to vote these days, but because at the Founding they were "infants" for purposes of contracting

Was there some generally accepted minimum age to sign contracts back then?

I'd never thought of it before, but (a) I'd guess people didn't sign very many contracts at all in those days, and (b) people began living as adults sooner then too, what with so much less schooling.

[David Nieporent]

I mean, most contracts are oral.

[Stupid Government Tricks]

So is most dental care.

What's that got to do with my question?

[ReaderY]

For the New Mexico kidnapping case, it seems to me when the feds regulate interstate commerce indirectly, they should only be able to punish based on the actual effect. The effect on interstate commerce here would appear to be extremely slight, removing an instrumentality of interstate commerce from lawful use for perhaps a day. Anything more than maybe a $100 fine would be wildly disproportionate to the federal interest.