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."
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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."
- 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.
- 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.
- 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.