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

Rebellion, bullet control, and vulgarity cloaked in euphemism.

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

At IJ's Center for Judicial Engagement, we've long argued that having judges who can say "no" to the executive branch are a crucial, necessary condition to freedom, prosperity, and the "rule of law." But just what does it mean to have a "rule of law"? Over at our blog, Anthony Sanders discusses the essentials.

New on the Bound By Oath podcast: For the final episode of Season 3, we survey several strands of Supreme Court precedent that make it really, really hard for Native Americans to put their property to peaceful and productive use.

1. Gov't watchdog group brings FOIA lawsuit to force DOJ's Office of Legal Counsel to make several categories of its written opinions publicly accessible. D.C. Circuit: FOIA doesn't apply to any of the requested opinions, including those about interagency disputes, as they are neither adjudicatory nor adopted as the agency's working law. Watchdog group gets nothing. Concurrence: They should get nothing because they lack standing.
2. New York requires ammunition sellers to conduct a background check on anyone buying ammunition. Ammunition sellers and gun owners sue and seek a preliminary injunction, alleging the law violates the Second Amendment. District court: The law is consistent with our historical traditions. Second Circuit: Actually, we don't even have to look at the history, because having to fill out some paperwork to buy bullets doesn't meaningfully constrain the right to keep and bear arms.
3. Unlike some other circuits, the Fourth Circuit says there's really not ever going to be anything cruel and unusual about holding prisoners past their release dates. It might conceivably shock the conscience. But not in this case, where Virginia men convicted of attempted aggravated murder spent an extra year in prison before the state supreme court ruled that a new-but-retroactive state sentencing law did indeed apply to their convictions.
4. Allegation: During "fraught, tense, and combative" five-hour interview, teen is told she can't leave police station until she names man who (she'd told a therapist) had sexually abused her as a child. The teen names the now-plaintiff, whose prosecution is dropped over a year later when prosecutors learn the teen had previously identified a different perpetrator. Can plaintiff sue the Prince William County, Va. detective who knew (or should have known) about the earlier ID and left it, and other exculpatory info, out of an arrest warrant affidavit? Fourth Circuit: The probable cause bar is a low one. Case dismissed.
5. A few fellas were drinkin' moonshine in a Tishomingo County, Miss. trailer when things get out of hand and one is arrested for shooting some bullets—which he denies. Due to a prior conviction he's held awaiting trial. That lasts 1,233 days, during which he's given four attorneys—some of whom he's not told of—and three judges and files four pro se speedy trial motions. He's convicted. District court: Speedy trial violation, but only on one of the two counts in the indictment. Fifth Circuit (over a dissent): On the whole indictment. Habeas granted.
6. It's hard to tell who's having the most fun in this Sixth Circuit case—whether it's the majority opinion carefully identifying which expletives were intended by which historical euphemisms, the dissent diligently cataloging the personal insults lobbed at American presidents over the centuries, or the middle-school-student plaintiff who complied with the directive to remove his "Let's Go Brandon" sweatshirt only to reveal a "Let's Go Brandon" t-shirt underneath—but everybody seems to be having a good time.
7. Allegations: After five members of the University of Kentucky football team arrive at a frat party and attendees respond by physically assaulting them and hurling racial epithets, Lexington PD does the only responsible thing—fabricate information and very, very publicly charge the five teammates with burglary. ::Record scratch:: After grand jury refuses to indict, the teammates sue various denizens of the police department. Sixth Circuit: Yes you were arraigned and summoned to testify in court; yes one of your phones was seized; yes your reputations were tarnished nationwide when media picked up the cops' press release; yes the allegations, if true, "reflect extremely poorly" on Lexington's finest. But none of that amounts to a "deprivation of liberty," so your Fourth Amendment claims are non-starters. And your beef with the allegedly defamatory press release is a non-starter too, since all it did was parrot the charging documents, meaning it enjoys absolute privilege.
8. Protesters have protested at an ICE facility a few miles west of Chicago for the past 19 years—with somewhat more intensity recently following the announcement of Operation Midway Blitz. A month after the announcement, the president federalized the Illinois National Guard. District court: Enjoined. Seventh Circuit: Just so. Political opposition is not rebellion, and a protest doesn't become a rebellion merely due to a few isolated incidents of violence. Without that, none of the statutory predicates for federalizing the National Guard have been met.
9. Feds: We know this asylee and her kids have been in limbo for over a decade and we won't defend the Board of Immigration Appeals' application of the law, but can we have a remand so that we can kick her out in a way that's less transparently unlawful? Tenth Circuit: No.
10. Allegation: In pre-dawn hours, naked, partially deaf man hears banging outside his home. Thinking it's his adult son returning home, he opens the back door a crack and heads back to his bedroom. Yikes! It's Levy County, Fla. officers (looking for the son, who isn't there). Without a word, an officer follows the man into the house and confronts him at gunpoint, allowing him to put on pants but then tasing him without warning. Officers: We didn't have a warrant, and there was no exigency. But the man consented to our entry when he opened the door. Eleventh Circuit: No qualified immunity. To a jury this must go.
11. And in en banc news, by a vote of 8 to 6, the Third Circuit will not reconsider its decision invalidating Pennsylvania's practice of discarding mail-in ballots with missing or incorrect dates on the return envelope.
12. And in more en banc news, the Fifth Circuit will not reconsider its now-revised decision that un-dismissed a lawsuit brought by a fired Southwest Airlines flight attendant who was terminated after sending the president of the flight attendants' union graphic images and videos of aborted fetuses.
13. And in further en banc news, the Ninth Circuit will not reconsider its earlier ruling declining to stay a California district court ruling that preliminarily enjoined the Trump administration from halting federal funding for the only program ensuring legal representation for unaccompanied children in federal immigration proceedings. Nine judges dissent from denial, arguing that this is a contract claim that should have been brought in the Court of Federal Claims.

Final victory: After an 8-1 win at the Supreme Court last year reviving her First Amendment retaliation claim, IJ client Sylvia Gonzalez's case against Castle Hills, Tex. officially concluded this week. The settlement includes $500k for Sylvia, who was jailed on pretextual charges, and mandatory training for city officials that the Texas Municipal League will also offer statewide to over 1,000 municipalities. Click here to learn more.

Comments

[SMP0328]

8. Protesters have protested at an ICE facility a few miles west of Chicago for the past 19 years—with somewhat more intensity recently following the announcement of Operation Midway Blitz. A month after the announcement, the president federalized the Illinois National Guard. District court: Enjoined. Seventh Circuit: Just so. Political opposition is not rebellion, and a protest doesn't become a rebellion merely due to a few isolated incidents of violence. Without that, none of the statutory predicates for federalizing the National Guard have been met.

Shadow docket in 3... 2... 1...

[A Japanese Student]

And here it is: 25A443.

[SRG2]

The regime's response is very whiny

[TextFirst]

9: Another quasi-open borders decision. This person is supposedly fleeing some local gangsters in Honduras who had it out for the father of (some of her) children and killed him. Was there such a gang and was that man even murdered? We have no way to know, except the usual "come on, trust me bro" that asylees always come with. Sure is kooky how she had to flee a local gang, skipped right over Guatemala and all of Mexico and only decided to apply for asylum in the USA. The government should appeal this decision and when she is deported, she can be granted either the option of returning to Honduras or being sent to Uganda. Surely the gang she's running from doesn't have branches in Uganda.

[David Nieporent]

Racists gotta racist.

But surely even you can figure out that this was the appeal, and that SCOTUS is not going to grant cert just because you hate brown people.

[TextFirst]

Who said anything about race? I didn't, sounds like something you made up. The opinion doesn't even mention, as far as I noticed when I was reading it, what race this person happens to be. And yes, it was an appeal, but SCOTUS should grant cert to grant clarity on this area of law. Given that "asylee" hates delay, it should be put on a rocket docket so she can be deported ASAP.

[Stupid Government Tricks]

Who said anything about race?

David Nierporent likes doing that. Maybe it makes him look sophisticated, in his circle.

[TextFirst]

While we're on the topic, the ruling is actually even more insane than I first gave it credit for. The left will cry over and over again how there needs to be a "process" we can't just deport people. But they've added so much paperwork and appeals that it takes a decade to get rid of somebody who just shows up with the word "asylum" and a completely unverifiable story. So what happens at the end of that decade? Well, that's too much process, since it took so long they just get to stay. We can only deport somebody if they get a very precise, medium goldilocks amount of process, too much or too little and we're stuck with them. It sure is funny how all these doctrines conspire so the judiciary has effectively enacted. open borders

[David Nieporent]

Weird to brag about how the right doesn't care about due process, but your rant is utterly untethered from anything related to either the merits of her case or the procedural history. Nobody ruled that she got to stay because "it took so long." The ruling is that she gets to stay because the result of her hearing was a finding that she meets the criteria for asylum.

[TextFirst]

You did not read the opinion. Page 43 extending onto 44, they outright say because it took too long the "asylee" just wins and they won't remand for further proceedings. ("Recall, the IJ first granted asylum on December 2, 2014. Ms. Ramos now
asks this court to “end Petitioners’ decade-long asylum proceedings.” We will do so. We agree with the Eighth Circuit that “[n]o immigrant should have to live over ten years with the uncertainty as to whether she can stay in this country or not.”")

So basically she managed enough delays and procedural nonsense that it took so long and it just wins, with the circuit court refusing to remand it so correct determinations of law could be made. This holding is plainly perverse and allows immigration scammers to benefit from their endless dilatory tactics. On a legal level, SCOTUS should hold that this judge made rule is NOT the law. On a policy level, asylees must remain in Mexico or otherwise not be allowed admission to the United States because once they're in, we're stuck with them regardless of how meritless their claims are. Grifters are like rats, it's much easier to keep them out in the first place than to get rid of them once they've infested the house.

[David Nieporent]

No; you didn't read the opinion. As evidenced by the fact that you're trying to blame her for dragging things out, when in fact the opinion makes clear that the delay was entirely the fault of the government, which kept appealing adverse findings and then taking forever to issue decisions.

She won, on the merits, with the immigration judge. BIA remanded, not because it found the IJ was wrong but instead just demanding more factfinding from the IJ. She won again on the merits after that remand. BIA reversed on the grounds that the IJ's new opinion was "clearly erroneous," which the Circuit rejected and which even the government hasn't tried to defend. The government instead just asked for a do over, but its request was untimely, and the Circuit in fact found that it would be futile anyway, because under the correct legal standard she was entitled to asylum. That she has been waiting 10 years was not the reason for their decision; the court was simply emphasizing how unreasonable the government's request was.

Oh, and calling people "rats" is really not a good way to refute the notion that you're a racist.

[TextFirst]

They explicitly ended it because it took too long, granting the asylee a win instead of remanding for further proceedings. The opinion is entirely clear on this point. It was NOT futility based solely on the merits, it was because of a made up judicial time limit. It should have been remanded for further fact finding. If you have westlaw/lexis, the government's briefing on this point is extremely persuasive.

And the delays are entirely her fault. The government didn't make her come here, and she could have left at any time. She kept appealing and opposing, we could have deported her a decade ago. So yes, her own delays cause her to win because the court imposed a fake extra-textual time limit. The government should appeal this and, when successful, deport her. And your constant attempts to inject race into this are really strange. Nobody is bringing up race but you.

[David Nieporent]

They explicitly ended it because it took too long, granting the asylee a win instead of remanding for further proceedings. The opinion is entirely clear on this point. It was NOT futility based solely on the merits,

No. They explicitly ended it because they found that a remand would be futile, because there was no "additional fact finding" to do. They spent more than 10 pages explaining that, after spending 20 pages explaining why the BIA's finding of clear error was wrong.

As we will show, “on remand, governing law would” compel holding the IJ’s findings were permissible and not clearly erroneous. Zapata-Chacon, 51 F.4th at 1196. Thus, “remand . . . would be futile.”Id.

(Emphasis added.)

Given our conclusion, nothing remains but to reinstate the IJ’s 2019 order granting asylum. The BIA fully considered a completely developed record, comprising two IJ hearings, and explained its reasoning at some length. The government does not suggest the record needs to be further developed.

(Emphasis added again.)

It should have been remanded for further fact finding.

There. Was. No. Further. Factfinding. To. Do.

If you have westlaw/lexis, the government's briefing on this point is extremely persuasive.

That would be outside my westlaw plan, and for whatever reason the documents aren't available on PACER. But I can say that, empirically, it was not persuasive.

And the delays are entirely her fault. The government didn't make her come here, and she could have left at any time.

"It's your fault your case took so long because if you hadn't filed it, it wouldn't have taken so long." I suppose that's hard to dispute, but it's also stupid and an assholish argument. She had every right to come here, and no reason to leave.

And you're lying; it's the government that kept appealing. She entered in the U.S. in 2014, applied for refugee status, and was granted such by the IJ a few months later, still in 2014. That should've been the end of it. But the government appealed to the BIA, which took a year to order more fact-finding. The IJ took 3½ years to hold the hearing. That's on the government, not her. She won again. That should've been the end of it. But the government appealed again to the BIA, which took four years to issue an opinion so poor that the administration wouldn't even defend it. That's on the government, not her. She then for the first time appealed to the 10th circuit; after a year of unsuccessful mediation efforts, the actual appeal process started. She did everything timely; the government, however, caused more delays by filing an untimely and meritless request for remand instead of just filing opposition. And then the 10th Circuit took a year to rule. Again, not her fault.

This is not a situation where a death row inmate kept making new 11th hour arguments in an attempt to stall. She did everything immediate and timely. None of the delays were her doing.

[David Nieporent]

There already is clarity on this area of law. This wouldn't even qualify as error correction for SCOTUS to take up. What is SCOTUS going to do, rule that the immigration judge's assessment of her credibility was wrong?

[TextFirst]

No, they can and should overrule the judge made gloss that the asylee just wins if there's enough delay that it takes too long, a concept that appears nowhere in the text of the actual law. See page 43.

[David Nieporent]

You're either an incompetent reader or a dishonest writer, or both. That is not what the basis for the ruling was. You might want to start before page 43, and read the part where it found that the IJ's ruling was supported by the evidence and thus not clearly erroneous, and that remand would be futile because there was nothing else for BIA to do.

[Drewski]

"We have no way to know, except the usual "come on, trust me bro" that asylees always come with."

False. USCIS officers investigate these claims through a well-established process. Among other things they contact local law enforcement for information.

[wvattorney13]

Local law enforcement? Is this a joke?

[Drewski]

No, you're just stupid. You think local law enforcement is broadly unaware of gangs operating in their jurisdictions?

[Michael P]

the middle-school-student plaintiff who complied with the directive to remove his "Let's Go Brandon" sweatshirt only to reveal a "Let's Go Brandon" t-shirt underneath

The Boy Scouts and US Marines would be proud.

[kotodama]

Sixth Circuit middle school case: Let's Go Brandon
Tenth Circuit immigration case: Let's Go Brandon

[Brett Bellmore]

Second Circuit can barely be said to even be pretending to follow Bruen at this point. They're really phoning the pretense in.

[Bwaaah]

It would appear that the phoning in of pretense is deeply steeped in our historical tradition.

[wvattorney13]

You don't remember James Madison talking about background checks for ammunition purchases? Or how ammunition purchases don't implicate the 2A?

This one might be bad enough to get SCOTUS to bite.

[DRM]

Sounds like it's time to start requiring background checks for the purchase of contraception, including $2.50 dealer fee each time.

[David Nieporent]

I have no doubt that NY strongly dislikes the RKBA, and that the Second Circuit is rather parsimonious with respect to that right. But what about this particular opinion do you think is inconsistent with Bruen?

[Brett Bellmore]

The utter and total lack of consistency with historical traditions, (Background checks to buy ANYTHING are a very recent development.) and that it does meaningfully infringe the right in question.

[David Nieporent]

As the Second Circuit explained, under Bruen you don't get to the historical tradition inquiry unless the law in question actually does interfere with the RKBA.

How does this law do that? The Supreme Court has expressly upheld background checks, and how do they "meaningfully infringe" anything here? This is not a you-need-to-demonstrate-good-cause-before-we'll-let-you-buy situation. This is a some-people-are-not-allowed-to-purchase-(the Supreme Court expressly upheld that, too)-and-we're-checking-to-make-sure-you're-eligible.

[Brett Bellmore]

The Supreme court, (In violation of the principles expressed in Bruen, but I don't expect them to care soon.) may have approved of historically totally unprecedented background checks and licensing for guns themselves, but that doesn't mean the lower courts get to extend their lack of principle.

Background checks for durable objects may inappropriately delay exercise of the right once, but once you have finally jumped through the flaming hoops, you have the gun for a while.

Background checks for expendables will repeatedly render the right impossible to meaningfully exercise. As is California's purpose here.

Anyway, I still have some hope that, just as the Court after first approving of racial discrimination finally came around to the view that it wasn't really permissible, they will after initially approving of having to crawl to the government for permission to exercise a right, come to the realization that licensing regimes for constitutional rights is a fundamental contradiction.

[David Nieporent]

First of all, California is not in the Second Circuit.

Second, I like how you've added Brett'sPersonalInterpretationofBruen to your repertoire, supplementing (if not displacing) Brett'sPersonalInterpretationoftheConstitution, but that's still not the way it works. SCOTUS says that bans on certain people purchasing arms (which includes ammo, and includes background checks to enforce those bans) are permissible — indeed, it said so in Bruen itself — and the plaintiffs in this case did not challenge that federal law. Nobody extended any principle.

Third, if the law did "render the [RKBA] impossible to meaningfully exercise," then it would indeed be unconstitutional under Bruen. But that's just rhetoric on your part; you haven't even explained your reasoning, let alone supporting it. (This background check system is not like the up-to-three-days delay allowed by federal law for gun purchases. This is an instant process, and there's no facts in the record to call that into question.)

Fourth, even if your hope that SCOTUS changes its mind on firearm licensing bears fruit someday, it would not support your original contention that the Second Circuit is not currently following Bruen.

[SRG2]

#5 and #7 add weight to my growing belief that there should be a law thus: "it shall be a defence to a charge of assaulting an officer with a baseball bat following dismissal of a suit against the officer that the officer fucking deserved it"

[David Nieporent]

As far as I can tell from Google, the officer who did it — Cory Vinlove — is still a police officer.