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

Lobstermen surveillance, semiquincentennial squabbling, and socking it to the Scotch Tape People.

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

Webinar: In thousands of communities across the country, automatic license plate readers are surveilling people's movements on a massive scale. A sensible law-enforcement tool? Or an insane violation of personal privacy? We've put together a crack team of policymakers and advocates to weigh in, including the Montana senator who authored that state's landmark legislation on the topic. Please tune in on Tues., Dec. 9 at 2 p.m. EST.

Or head over to the Associated Press, which has a longform look at the Border Patrol's (until now) secret practice of using ALPRs to identify "suspicious" driving patterns and tipping off local law enforcement, a practice that is resulting in a lot of innocent people, like IJ client Alek Schott (featured in the story), getting pulled over on a pretext and harassed.

This week on the Short Circuit podcast: Anya Bidwell interviews Matteo Godi of USC Law about his new article "Section 1983: A Strict Liability Statutory Tort."

1. Does it violate the Fourth Amendment for Maine to require that all lobstermen who hold federal lobster fishing permits install an electronic tracking device on their vessels? First Circuit: Well, first things first, let's be clear that "lobstermen" is a gender-neutral term. And as for the Fourth Amendment issue, the lobstermen plaintiffs conceded in the district court that lobstering is a closely regulated industry—meaning the Fourth Amendment has fewer claws—and we're not going to let them renege on that concession now. Dismissal affirmed.
2. As someone living in a neighborhood where our water must be tested for toxic chemicals because of the 3M Corporation, your summarist is sympathetic to efforts to sock it to the Scotch Tape People. But jurisdiction is jurisdiction. The State of Maine claims 3M was a bit toxic in their neck of the woods and filed two cases, one that it knew would end up in federal court and one that, through artful pleading, it tried to keep in state court. First Circuit: Both should be in federal court. 3M is a "federal officer" because this particular toxicity stuff had to do with some military bases, notwithstanding the wordsmithing.
3. Does the Second Amendment prohibit convicting someone for having a gun with an obliterated serial number? Second Circuit: No. The serial number requirement doesn't limit the type of firearm you can own, it just has to have a serial number.
4. The facts of this case involve Mean Girls-level squabbling among several (male) members of the augustly named United States Semiquincentennial Commission, charged with organizing our Nation's 250th birthday party. The law applied by the Third Circuit involves several multifactor tests to conclude that sovereign immunity bars defamation suits against members of the Commission, no matter how fugly the statements in their proverbial burn books.
5. Jackson, Miss. has a lot of lead in its water! Can the city and its officials be sued for violating residents' right to bodily integrity? Fifth Circuit: The city but not the officials. Concurrence/Dissent: The city and the officials. Concurrence/Dissent: Not the city or the officials.
6. State statutes can be unclear. So sometimes federal courts will ask a state's highest court to help them interpret those legislative enunciations. Fifth Circuit: That's why we're asking the Mississippi Supreme Court to do us a solid about an arbitration-related matter. Dissent: Some believe it all went wrong with Raphael. I myself blame Erie Railroad v. Tompkins.
7. Loyal readers of the U.S. Code know that the Labor Management Reporting and Disclosure Act of 1959 prohibits a union or employer from spending money to promote a candidate for union office. But can private individuals or unions sue to enforce that prohibition? Seventh Circuit: Decidedly not.
8. Allegation: Without warning or command, officer shoots pepper ball at man observing 2020 police brutality protest in Omaha, permanently blinding him in one eye. Eighth Circuit: The officer didn't have any retaliatory animus because he shot at other people too. Moreover, just observing—as opposed to participating in or reporting on—a protest does not implicate the First Amendment.
9. Take voting seriously. Yet, not so seriously, as the Eighth Circuit details, that you advise people in your Vietnamese community in Iowa that they can absentee vote and sign on behalf of adult children away at college or, skipping even those details, that they can simply turn the blank ballots over to you that you will proceed to fill in and sign yourself.
10. Class of plaintiffs allege that Blue Cross Blue Shield of Illinois violated Section 1557 of the Affordable Care Act, which bars sex-based discrimination, by refusing to cover treatment for gender dysphoria. Do they state a claim? Ninth Circuit: Maybe-ish? Skrmetti seems pretty on point, but there may be some wiggle room for the district court to consider on remand.
11. Tenth Circuit: The feds failed to prove that this defendant is a non-Indian, so his conviction for sexually assaulting a minor in Indian country is vacated. Concurrence: It ought to be the defendant's burden to show he's an Indian.
12. In 2022, Donald Trump sued CNN, alleging that the network's use of the phrase "Big Lie" to describe his claims about the 2020 presidential election was defamatory because it was intended to associate him with Hitler and Nazi propaganda. Eleventh Circuit (unpublished): "Trump's argument is unpersuasive."
13. Suspecting black man who'd been running through Glynn County, Ga. neighborhood of recent burglaries, white men hop in trucks, chase him down, block his path, and shoot him dead. They're convicted of murder in state court. Afterward, they're convicted in federal court of attempted kidnapping and interference with their rights. Eleventh Circuit: Convictions affirmed. Automobiles are per se instrumentalities of interstate commerce, so their use of the truck to chase the man and prevent his escape qualifies as federal attempted kidnapping. Dissent: They didn't leave the neighborhood, let alone the state, they didn't use the interstate highway system, they didn't use their phones or text messages, and they didn't use the internet. Courts should take a case-by-case approach, rather than adopt a per se rule, to determine if a crime used interstate commerce and is thus appropriately federal.
14. Eleventh Circuit: Look, when gov't officials say "you can't use your private beach, but we can use your private beach," that means they took your private beach.
15. And in en banc news, the Fourth Circuit will not reconsider its opinion telling a district court to decide as a matter of fact whether the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court.

Amicus victory! Friends, it is sadly commonplace for land-use officials to grant but then—for specious or even spurious reasons—revoke a conditional-use permit, often after a business owner has expended significant resources building or remodeling or what have you. Case in point: Nearly a year after granting a permit for a recycling facility (on property zoned for mineral extraction), and after the owner spent tens of thousands of dollars prepping the site, Monroe County, Ind. officials changed their minds—no doubt influenced by the much bigger recycling firm that belatedly objected to the new competition. So we're happy to relate that last week the Indiana Supreme Court, which gave IJ a little amicus time at oral argument last summer, did the right thing and good thing and unanimously told zoning officials in the state to knock it off.

Comments

[wvattorney13]

"Forbidding possession of a firearm with a removed, obliterated, or altered serial number does not infringe upon the right to bear arms because no person is thereby prevented from possessing any type of firearm, and because such a firearm is not a weapon in common use for lawful purposes."

1) It does prohibit the possession of a type of firearm. It prohibits the type of firearm that doesn't have a serial number. That's exactly the type the defendant likes that this law prohibits him from possessing.

2) The court recognizes it here. It groups the type of firearm as those not having a serial number and declares that type is not in common use. But the in common use test had to do with the rate of fire, not with meaningless characteristics.

They might as well ban all of my guns as not in common use because they are owned by me, and that's not common among the people at all.

[SRG2]

I think you're stretching the meaning of the word "type". A car without a licence plate is not a different type of car from one with.

[Krayt]

Guns without numbers were in common use back in the day, the period of time held up on a pedestal by those who want to ban all modern guns not around back then.

[wvattorney13]

It is if possessing one is a felony. The government certainly thinks that a gun without a serial number is of a different type of gun.

What features would you list as sufficient to create a new type of X?

The court is the one that used the word "type." That is not contained in the 2A, in Heller, or in Bruen. The first question is does the 2A protect the conduct. I think unquestionably yes. As you said, the thing is a gun. It is a 2A instrument.

To ban it you need a history and tradition of a relevantly similar law.

[Eric Rasmusen]

I'm disappointed. I hoped for the 5th circuit Brown-Smith fight (should Doe and Roe be in it too?). It's not appellate, but it's a 3-judge panel that goes straight to the Supreme Court.

So I want you guys to comment. Perhaps with hypotheticals, because we only ave Smith's side of the story, not Brown's. But it's a hugely important topic to talk about the civility and honor of judicial panels and multi-judge courts. The formal rules are the least of it. Judge Ketanji Brown is a similarproblem. What do you do when a judge breaks he unwritten rules to cheat his colleagues?

[vaadu]

3. Under Bruen, the government bears the burden to show a "relevantly similar" historical analogue from the Founding era (roughly 1791) or Reconstruction (1868) that imposed comparable burdens on the right. Serial numbers fail this test spectacularly: They were not invented until the 19th century and not mandated on firearms until the federal Gun Control Act of 1968—nearly two centuries after ratification.

[Krayt]

Look, when gov't officials say "you can't use your private beach, but we can use your private beach," that means they took your private beach.

Now that's a succinct summary of the Covid beach takings posts!

[F.D. Wolf]

And in en banc news, the Fourth Circuit will not reconsider its opinion telling a district court to decide as a matter of fact whether the Trump administration has so thoroughly undermined the federal civil-service system that federal employees can bypass it in favor of suing directly in federal court.

The vote was 9-6. While Judge Wilkinson concurred in the denial of a rehearing en banc, he expressly stated that he disagreed with the panel opinion but noted that mere disagreement was not sufficient for en banc review.

The panel opinion was a particularly execrable entry in the Trump Law canon, in which a court says, "Yes, the law is crystal clear... BUT TRUMP!!!" As Judge Wilkinson pointed out, if the "system is not working as Congress intended," as the panel alleged, then it is for Congress, not the courts, to fix it.

As noted, the vote was 9-6. Democratic appointees outnumber GOP appointees 9-6. (I am counting Judge Gregory, who was recess-appointed by Clinton, then formally nominated and appointed by Bush, as a Democratic appointee.) The vote was nearly party-line, with Chief Judge Diaz (Obama) voting for rehearing, and as noted, Judge Wilkinson (Reagan) voting against.

I am fairly confident the administration will ultimately prevail in this case.

[John F. Carr]

I think it's just a severability decision. If one part of a law is not available, put on your Carnac outift and divine what the legislature would have done.

I also think courts are prone to go too far rewriting laws in the name of severability. The anti-comandeering part of the sports betting decision should have been all there was. Let Congress decide whether to throw out the rest of the law and let the President decide whether to enforce it in the meantime. When federal courts invalidated Rhode Island's truck toll scheme, it was not their business to tell state officials how to apply the rest of the law.

[ReaderY]

I think the Supreme Court’s strategy on a number of issues has been to rule against the Trump administration, but to do so in a way that avoids making a finding that the Administration lied or acted wrongfully. We will see what the Justices do about this one when it gets there.

[ReaderY]

For #13, the sentence seems outrageous given the harm to imterstate cmmerce that occured. The defendants used a truck and a fraction of gallon of gas for a purpose the federal government considered immoral but otherwise had no business concerning itself with except so far as its effect on commerce is concerned.

No doubt if a lot of instances were aggregated, the effect could be substantial. But if a lot of $5 fines and 1 day in jail were aggregated, the resulting aggregation of sentences would then be proportionately substantial. The sebtence given is outrageously disproportionate to the federal interest.

Also, search warrants seem to have been required to investigate this crime. Why? This was entirely a border matter. Since parts from the truck had previously crossed the border, the border exception to the general rule against warrantless searches and seizure applies with every bit as solid a logical force as the Interstate Commerce exception to the general rule aganst federal regulation of interpersonal violence within the jurisdiction of a state.

Cross-border international commerce is every bit as conceivable as a continuous stream that nfects everything it touches, removing it from the private realm subject to the 4th Amendment and bringing it under the border exception, as interstate commerce is so conceivable and has been conceived by the courts. The old fashion constrained interpretation of the border exception as an actual serious limitation on the ability of the federa government to conduct searches and seizures is every bit as out of touch with the modern world as the interstate commerce clause.

Any person, place, or thing which or which is made with, possessed, or came into contact with the stream of things that previously crossed the border, or which constitutes an artcle or instrument of cross-border commerce, is within the border power and outside the scope of the 4th Amendment.