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

A bag of cash, Senate confirmations, and removal for cause.

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

New cert petition: You might think it's outrageous that a Dallas detective lied to get a bar owner indicted for fake crimes at the behest of the detective's part-time employer, a neighboring business that wanted the bar gone. But what's really outrageous is that in the Fifth Circuit, the denial of the detective's plea for state-law immunity (from the bar owner's civil suit) is immediately appealable. As J. Oldham argues (in a troubled concurrence), the availability of such collateral-order review in federal appellate courts leaves federal jurisdiction at the mercy of states. Which makes no sense. Click here to learn more.

Over at the Brennan Center's State Court Report, Anthony Sanders reports on a recent state supreme court opinion from North Dakota concerning big words like "liberty" and "happiness" that are in the state constitution. How should courts interpret those words? Anthony says do what the constitution says: Go Big (but within reason).

New on the Short Circuit podcast: Aliza Shatzman of the Legal Accountability Project tells us what happens when judges aren't great employers (not much).

1. In which a divided D.C. Circuit panel holds that President Trump can indeed fire members of the National Labor Relations Board and the Merit Systems Protection Board without cause and that the statutory protections Congress enacted barring removal without cause violate the Constitution.
2. Bridgegate defendant spends $4 mil on legal defense until SCOTUS says he didn't do a wire fraud. He repeatedly asks the Port Authority to indemnify him, and is told (basically): Yes, we got your paperwork, stop pestering us. Later, the Port Authority says he didn't submit the right paperwork, so they have state sovereign immunity against his claims for indemnification. Second Circuit: You see, the problem with that state sovereign-immunity theory is that the Port Authority is not a state. Concurrence: That's enough to decide this case, and I don't join the majority's further dicta proposing a Grand Unifying Theory of State Sovereign Immunity.
3. Former head of the NYC corrections officers union accepts $60k cash in a luxury handbag in exchange for diverting $20 mil of the union's retirement investments to a hedge fund (which goes belly up). He gets a nearly five-year sentence, but it's reduced to time served because his codefendants (the hedge fund president and a high-flying bagman turned star witness) got lighter sentences. Second Circuit (unpublished): Sentencing disparities between differently situated defendants are not cause for compassionate relief. Remanded to a new judge for resentencing.
4. The National Institute of Family and Life Advocates, a faith-based nonprofit, wants to say things about abortion-pill reversal (a protocol that is meant to counteract the effects of abortion induced by oral medication). But the N.Y. Attorney General has been suing other groups for saying precisely the same things, claiming the statements are misleading. NIFLA: The threat that we, too, will be sued is chilling our speech, and New York's crackdown is unconstitutional. Second Circuit: Preliminary injunction affirmed. The gov't's bid for Younger abstention is a non-starter, and policing non-commercial speech is a no-go as well.
5. If the gov't seized your money through civil forfeiture and then later gave it all back and asked the court to dismiss the forfeiture action, you might think that you had "substantially prevailed." That would be great because then you'd be entitled to attorneys' fees and interest. Second Circuit: Aha! But the gov't dismissed the case "without prejudice" and could theoretically refile. So even though you got everything you wanted, you haven't prevailed. (Ed.: IJ filed an amicus brief in this case.)
6. The Trump Administration has tried its darnedest to have Alina Habba wield the authority of U.S. Attorney for the District of New Jersey. But, per the Third Circuit, there's no good substitute for old-fashioned Senate confirmation.
7. North Carolina man who publishes manuals and videos on bomb-making so that Americans can defend themselves from tyrannical gov't teaches a fella we'll call "Buckshot" how to rig his house with explosives to kill ATF agents. Surprise! Buckshot is a confidential informant for the FBI. Fourth Circuit (over a dissent): 25-year sentence affirmed.
8. As patient pleads with hospital staff not to give him an antipsychotic shot, a Chattanooga, Tenn. officer (moonlighting as security) enters the room uninvited, wrenches the patient's arm behind his back, and then punches him in the face, bouncing his head off a cinder block wall. Sixth Circuit: The hospital staff thought that was excessive, and a reasonable jury might as well. But qualified immunity.
9. Palestinian American flies a Palestinian flag in her Chicago apartment window in October 2023. After a month, her landlords say they received a complaint and ask her to take it down as "we want to stay neutral" regarding the war in Gaza. After she refuses, they try to evict her, and she sues under the Fair Housing Act. Seventh Circuit: Which despite banning "national origin discrimination" does not apply here because she didn't allege eviction because she is Palestinian. Dissent: Not much is needed for a complaint like this, so I'd undismiss and let it go to discovery.
10. Drug dealers evade Colorado highway cop by hightailing it onto an Indian reservation, but they're out of gas so they carjack and kidnap a motorist who stopped to help. Yikes! The motorist is an FBI agent, who gamely escapes. Eighth Circuit: And their bad luck continues on appeal.
11. Five people die in St. Louis County jail in 2019, with pleas for help going ignored by jail staff. Allegation: One of the men began vomiting and experiencing a terrible headache with symptoms worsening over the next few days. On Christmas Day, he reports "the worst headache of his life" and dizziness, for which a nurse gave him Tylenol and declined to contact the doctor despite a standing order to do so. That evening, he's found unconscious. He dies two days later. Eighth Circuit: Even a layperson would've realized the necessity for a doctor. That is enough to plead deliberate indifference to his serious medical needs, and the case can go forward against three nurses as well as the county for its training practices.
12. USPS mailwoman runs over a Kansas City, Mo. teen on a bike, killing him and dragging his body 40 feet. She drives on without stopping and lies to law enforcement about having been on the phone, among other things. District court: The feds must pay the teen's mom nearly $3 mil. Eighth Circuit: Vacated. Per the video, she wouldn't have had time to react to the teen, even if she had seen him.
13. Ninth Circuit: The district court may have been within its rights to issue a mandatory injunction ordering the defendant to take certain steps to save the endangered steelhead, but not without weighing the possible contrary effects on the equally endangered (and kind of eerie-looking) tidewater goby.
14. Eleventh Circuit: The district court needs to have another go at whether it violated the First Amendment for Georgia to ban activists from handing out water and snacks within 25 feet of polling lines (to prevent voter intimidation). PI vacated.
15. Eleventh Circuit (over a dissent): The district court needs to have another go at whether it violates the First Amendment for Clearwater, Fla. officials to enact a five-foot buffer zone on either side of an abortion clinic's driveway (to prevent intimidation of clinic visitors). Grant the PI.
16. Richmond County, Ga. SWAT team leader harasses new-hire deputy born in Iraq, making crude remarks about sand and bombs and calling him a terrorist every time he sees him. The deputy is fired by Sheriff Richard Roundtree the week after he files a complaint. Eleventh Circuit (with a notable dearth of Shaft allusions): The district court needs to have another go under the correct standard. Summary judgment in favor of defendants reversed.
17. And in en banc news, the Ninth Circuit will reconsider its decision that it violates the Second Amendment for California to require a background check for every purchase of ammunition.
18. And in more en banc news, the Eleventh Circuit will reconsider its decision that it probably violates the First Amendment for Florida to restrict drag shows (to protect the children) in the manner that it has. PI unaffirmed.

New case: With a baby on the way, Chad and Stephanie Trausch sought to build an addition onto their Miami home. But even though the project complied with every relevant permit condition, city officials said no, not until you give the city nearly half your front yard. Outrageous! If the city wants to expand its right-of-way, it can use eminent domain and pay just compensation. Demanding that people give away property for free—a demand Miami makes of all land-use permit applicants—is just extortion. So this week, Chad, a Navy veteran (who was belatedly given his permit in an attempt to strategically moot his lawsuit), filed an amended complaint raising very-much-not-moot due process and takings challenges to Miami's permitting condition scheme.

Comments

[Brett Bellmore]

"And in en banc news, the Ninth Circuit will reconsider its decision that it violates the Second Amendment for California to require a background check for every purchase of ammunition."

Per the Shannon information theory, a message contains information only to the extent you could not have predicted its contents. So that particular item conveyed no information...

[Area Man]

"The Trump Administration has tried its darnedest to have Alina Habba wield the authority of U.S. Attorney for the District of New Jersey. But, per the Third Circuit, there's no good substitute for old-fashioned Senate confirmation."

Or appointment by federal judges, apparently? This whole thing is completely backwards. Executive officer must have Senate confirmation if appointed by head of Executive branch but not if appointed by members of judicial branch. It's especially nutty since the president can immediately fire whoever the judges appoint. Either just require Senate confirmation full stop or let the president or AG appoint who they want.

[Stupid Government Tricks]

It's in the same spirit as the Supreme Court throwing out the line item veto (if within 5 days of passage) on the grounds that the legislation was debated and passed as a whole, and the only two choices are veto or pass; but granting judges the identical authority to sever only part of an unconstitutional law while retaining the rest, and years after passage if they want.

[John F. Carr]

In the Port Authority case, the panel overruled a previous panel decision implying that the Port Authority had state law sovereign immunity despite lacking federal law sovereign immunity. In the Second Circuit a panel can do that as long as no member of the full court objects.

[John F. Carr]

The low-on-gas drug dealers evaded a South Dakota cop. They were arrested in Colorado.

Two observations.

1. The song "Kid Charlemagne" by Steely Dan references the failure of drug maker Owsley Stanley to fill up the tank before being chased by police.

2. The sentences of 35 and 47 years for armed carjacking, meaning at least 30 and 40 years to serve, are longer than the traditional sentences for murder. Federal law is harsh.

[grb]

I've heard "Kid Charlemagne" a zillion times but only now realize I've been clueless about its meaning. (that's probably true for countless songs chasing around my head)

[grb]

"Former head of the NYC corrections officers union accepts $60k cash in a luxury handbag in exchange for diverting $20 mil of the union's retirement investments to a hedge fund"

Sounds like the perfect candidate for a Trump pardon! The guy may have to pony up some moolah because presidential pardons don't come free, but I understand Trump offers a discount for politician corruption (that crime being choice and dear to his heart).

[John F. Carr]

In the Georgia do-over case, the Supreme Court's NetChoice decision changed the rules for facial First Amendment challenges while the case was still alive.

In the Florida do-over case, the government justified closing the sidewalk in front of the abortion clinic to everybody because "targeted" enforcement was impractical. Plaintiffs say that police are engaging in targeted enforcement, letting "ordinary passersby" enter the forbidden zone and arresting protesters even though the ordinance in question does not create an arrestable offense. However, plaintiffs abandoned the as-applied challenge on appeal.

[John F. Carr]

On the USPS truck vs. bike case.

California passed a law creating harsh penalties for hit-and-run resulting in death. The courts construed the law to require proof that failure to stop and render aid resulted in death. If the guy was already dead or doomed when the driver left the scene, not guilty.

Massachusetts' hit and run law used to have inconsistent mental state requirements for hit-and-run with injury and hit-and-run causing death, such that the former was not a lesser included offense of the latter. The law has since been rewritten.