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

Modest markups, shotgun pleadings, and the Kansas Two-Step.

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

Happy 250th! IJ is excited to celebrate America's Big 250 but in our own way. We're partnering with the Liberty & Law Center at Scalia Law School and holding a conference called "The Other Declarations of 1776." It's an examination of the various declarations of rights that the new states adopted in 1776, including their histories, legacies, and controversies. Plus there's an 18th-century-style mock argument with wigs. It's Friday, April 10 in Arlington, Va. Register here!

New on the Short Circuit podcast: Our John Wrench interviews some tip-top legal scholars with the latest on economic liberty, history and tradition, and more.

1. Plaintiff: Look, if you're going to convict me for "knowingly" possessing a firearm despite having been convicted of misdemeanor domestic violence, you have to let me introduce evidence that we specifically tried to structure my guilty plea in state court so it wouldn't count as misdemeanor domestic violence. First Circuit: Shan't. Conviction affirmed.
2. At beginning of the COVID-19 pandemic, New Yorker develops business plan to buy PPE masks in bulk and sell individual units at a 50% markup. Yikes! The President had declared masks a scarce resource under the Defense Production Act—triggering an anti-hoarding law—and one of the business partners in the plan is actually an undercover FBI agent. Jury convicts our entrepreneur of a hoarding conspiracy under the DPA. The Second Circuit affirms, spending many pages explaining why the word "accumulate" in the statute does not require hoarding over an extended time. Your summarist is wondering the whole time why the FBI is devoting its agents to a war on market-clearing prices, and on a rather modest markup at that.
3. Do civil-rights advocacy organizations have standing to challenge allegedly grievous defects in South Carolina's juvenile-detention system? Fourth Circuit (2-1): No. "We do not doubt the sincerity of plaintiffs' desire to ameliorate the harm that may befall juveniles in . . . custody, only the wisdom of their decision to sue in place of those whose interests they seek to advance." Dissent: One of the organizations is required by federal statute to protect the constitutional rights of people with mental illnesses. Of course it has standing.
4. Montgomery County, Md. schools require staff to use students' preferred pronouns and keep students' gender identities confidential from parents absent consent. A substitute teacher sought a PI on free exercise and free speech grounds; the district court denied the PI and dismissed both claims. Fourth Circuit: Rightly so. Employment Div. v. Smith may be a "punch-drunk fighter," but it's still knocking out free exercise claims unless/until the Supreme Court says otherwise. And this speech is merely part of the job description. Dissent: A rationale that will age poorly when entire states use it to ban teachers from using preferred pronouns altogether.
5. Allegation: Reynoldsburg, Ohio officer grabs woman (who's accused of being a very bad neighbor) as she opens front door without giving her a chance to comply with order to step outside. When she tenses up and pulls back, he performs a takedown maneuver that results in injuries that require four surgeries. District court: Could be excessive force. Sixth Circuit (unpublished): Qualified immunity. There are no cases on point, and we're pretty sure this was reasonable given the aggressive, barking dogs and guns inside her house.
6. In which the Sixth Circuit reminds us that, while facial claims are supposed to be easier in the First Amendment context, they remain super-duper hard.
7. A Battle Creek, Mich. animal-control officer allegedly demands that two civilians go corral a dangerous dog while the officer sits comfortably in the cab of his truck. (The dog, predictably, mauls them both.) And that may have been an ungentlemanly act, says two-thirds of this Sixth Circuit panel, but it was not an unconstitutional one.
8. Sixth Circuit: Proving a regulatory taking requires you to show that the city upset your investment-backed expectations, but the record shows that your only expectations should have been that the city would behave badly here. Case dismissed!
9. When the Second Amendment was adopted, there were no serial numbers on guns. So does that mean it's unconstitutional to prosecute someone today for "obliterat[ing]" one on a handgun? Seventh Circuit: If you wave your hands hard enough you can kind of see gun-recordy stuff like this at the Founding.
10. When should courts address an argument raised for the first time on appeal? One-third of this Seventh Circuit panel thinks they've spotted this rara avis. But, be warned, the full panel fully agrees that "[t]he facts of this case are disturbing."
11. Can you hear me now? We've all been in Zoom meetings or webinars where the discussion is dominated by technical snafus, but rarely does that spawn federal litigation. Here, though, a Missouri charity loses out on beaucoup bucks when its online art auction fails because of a broken YouTube link managed by its auction vendor. Perhaps unsurprisingly the vendor is broke, but is its insurance company on the hook? Eight Circuit: Nope, the policy excludes losses arising from electronic data mishaps, and that's just what this is.
12. During COVID-19 lockdowns in a California prison, one prisoner is forced to stay either in his cell or in a crowded work area with about 130 other inmates. He is denied outdoor recreation time. Ninth Circuit: And there's no qualified immunity for the warden.
13. "Shotgun pleading" has nothing to do with the Second Amendment. It is, however, often hard to find the sweet spot between not pleading enough facts and pleading so many, and then repeatedly incorporating them by reference, that shotgun pleading emerges. For further guidance and confusion compare the Ninth Circuit's majority and dissenting opinions in this Portland, Or., shotgun story of right-wing vs. left-wing violence, a riot prosecution, and a whole bunch of immunities.
14. As Bill Clinton might say, what does the word "include," include? According to the Ninth Circuit that word's use in an Idaho law banning the use of certain sexual material in schools is pretty inclusive, making the law not only cover speech concerning certain activities associated with that former President but a whole bunch of other speech that the First Amendment protects. Therefore, the court ruled that under the Miller test the law should be preliminarily enjoined.
15. During El Salvador's "state of exception," national police and soldiers repeatedly detained and beat a man who eventually sought asylum and relief under the Convention Against Torture. An immigration judge and the board of immigration appeals denied relief. Tenth Circuit: Yes, he was probably persecuted—but it wasn't politicalAnd yes, gov't officials beat him several times, caused him significant ear damage, had him sleep on a metal bed with no mattress, and forced him to exercise nude. But that's mere "abuse," not "torture." Petition for review denied.
16. Colorado and Kansas share a border. Pot is legal in Colorado. In Kansas it is not. So perhaps it is not surprising that for years Kansas cops have engaged in unconstitutional tactics during roadside stops of out-of-state drivers. District court: I'm gonna get this stuff to stop by ordering a set of policies. Tenth Circuit: Actually, the stuff is pretty messy. We'll keep the injunction for some training, but that's it. Dissent: I can't believe you guys are allowing the "Kansas Two-Step."
17. Allegation: Macon County, Ala. deputy sheriff swings by the office while off duty, gets intoxicated, speeds homeward in his police truck, sans lights, and kills another driver. A violation of the driver's due-process rights? Eleventh Circuit (over a dissent): We're going to assume that the deputy was acting under color of state law. We're also going to assume that the deputy's conduct "shocked the conscience." But he gets qualified immunity even so.
18. A legally blind man who spent ~18 days in two Georgia jails sued sheriffs under the ADA and Rehabilitation Act after staff wouldn't help him read forms, navigate, use phones, provide medications, or file grievances. Eleventh Circuit: He's not entitled to money damages because there's no evidence that the sheriffs intentionally discriminated against him, nor is he entitled to injunctive relief because the claim is moot—he was released, charges were dropped, so no reason to believe he'll be incarcerated again. Affirmed.
19. And in en banc news, the First Circuit will reconsider its decision about a Cambridge, Mass. police officer who was disciplined for posts he made on his private Facebook account. The court ordered supplemental briefing on a number of issues related to the Pickering balancing test.
20. And in additional en banc news, the Sixth Circuit will reconsider its decision about class action certification in certain auto valuation cases, thus (at least for now) wiping out a circuit split.
21. And in even more en banc news, the Eleventh Circuit will reconsider its decision on ERISA exhaustion and pleading standards.

Sonja Trauss is the executive director of YIMBY Law, an organization dedicated to ending the housing shortage in California. Sonja and YIMBY Law send letters to cities, offering views on housing-related policies. This is a routine practice carried out by individuals and groups across the political spectrum every single day. But the California State Bar is now signaling that the simple act of writing a letter to the government by Sonja and YIMBY Law is an unauthorized practice of law and threatening legal action. This is a clear violation of the First Amendment and the fundamental American right to petition the government. IJ is standing with Sonja and YIMBY Law and demanding the Bar back down.

Comments

[Flight-ER-Doc]

That YIMBY suit? Really? Petitioning the Government for redress of grievances is the practice of law?

I was born in California when that was a rare thing...and I'm SO glad I left more than 20 years ago before the brain rot spread.

[Drewski]

I don't know. We've seen one side of the story. That IJ didn't link the complaint is suspicious in itself, and makes me wonder if YIMBY Law improperly coordinated with a litigant either when writing letters or amicus briefs. Despite IJ's representation that they only write letters, they frequently file such briefs, although that is not something that requires a law license in itself. On the other hand, it wouldn't be the first time a licensing board got bent out of shape over protected speech. On the gripping hand, IJ has flat-out lied in these summaries before when describing the facts of their own cases.

I'm withholding judgment until we have corroborated facts.

[David Nieporent]

IJ's representation is that YIMBY hires lawyers to file amicus briefs on its behalf; YIMBY itself does not.

[jimc5499]

#17 Brings back a memory. I used to play in a traveling dart league. One place we were playing at a guy was totally trashed and was making an ass out of himself. He started on me and I was just getting ready to flatten him when the owner whispered in my ear that he was a State Cop. I let it go and the guy finally left. Found out the next morning that he was in an accident that killed him and two teens. The Police tried to hang the accident on the teens, but, too many people knew that the cop was trashed. So they covered his ass by saying that he was undercover.

[tuphat]

Traveling dart league? respect!

[Absaroka]

The mind boggles that driving drunk being against the law isn't clearly established.

[John F. Carr]

The First Circuit case was defendant's third appeal. The second appeal resolved the question of mental state. He pleaded domestic assault down to ordinary assault to keep his guns. He honestly thought, the court may assume for purposes of review, that he could keep his guns. But unlike "crime of violence" laws, the gun ban looks to the facts of the crime and not the statute of conviction. He knew he had been convicted of assault. He knew the victim was his wife. Therefore, he knew all the facts necessary to be convicted of knowingly possessing a gun after a misdemeanor domestic violence conviction. Even though he didn't know he had a domestic violence conviction.

The court also chose not to distinguish this case from Rahimi, even though the antecedent judicial proceedings were much different.

[wvattorney13]

"He knew he had been convicted of assault. He knew the victim was his wife. Therefore, he knew all the facts necessary to be convicted of knowingly possessing a gun after a misdemeanor domestic violence conviction. Even though he didn't know he had a domestic violence conviction."

Based on the record, how do we know the victim was his wife? It is not a fact that he admitted or was a necessary part of his plea. In fact, he specifically disclaimed that relationship as a element of the offense for the express purpose of avoiding this very outcome.

I don't see how this is different than a statute that provided for misdemeanor cocaine possession but it was a felony if greater than 50 grams. I specifically admit less than 50 grams. But then later the government turns around and says, "Well, we know it was really more than 50, so we'll just go with that."

It wouldn't be allowed in the latter. Why the former?

[TwelveInchPianist]

I mean, it seems like he could if the subsequent crime had elements relating to the facts of the predicate offense that the government could prove at trial.

[David Nieporent]

I don't see how this is different than a statute that provided for misdemeanor cocaine possession but it was a felony if greater than 50 grams. I specifically admit less than 50 grams. But then later the government turns around and says, "Well, we know it was really more than 50, so we'll just go with that."

It wouldn't be allowed in the latter. Why the former?

I mean, whether a quantity of drugs was more or less than 50 grams is something that requires extrinsic evidence; one can't just "know" it. But whether someone is married is a matter of public record.

[wvattorney13]

"But whether someone is married is a matter of public record."

That certainly makes proof of the element much easier but I don't see how it would excuse the failure to establish that proof in the first instance. It still would require extrinsic evidence of the public record.

And if that is something that was important for the prosecution to prove, it seems that they could have easily done it. But in order to secure an easier conviction, it chose not to. The government should not be able to get the results of that easier conviction yet still reap the benefits as if it had done more work.

Point of fact is that the crime of conviction did not have a finding that the victim was his wife. Under the Apprendi line of cases that should settle the matter.

[wvattorney13]

#1. Barring a person from possessing a gun from a DV conviction when he pled to simple battery.

This seems straightforward to me. Tell me where I went wrong. If a person pleas to simple assault, he is not admitting (nor has it been proven) that an essential element of the DV statute (the familial element) was established. Therefore the federal prohibition doesn't apply.

That's straight Apprendi, is it not?

[Drewski]

"Tell me where I went wrong."

I mean, it was really your parents. But as to the instant case:

"Minor had stipulated to most of the elements of §§ 924(a)(2) and 922(g)(9), including that the gun had been moved in interstate commerce, that he "knowingly possessed" it, and that the victim named in his original state-law assault complaint was his spouse at the time."

[TwelveInchPianist]

"and that the victim named in his original state-law assault complaint was his spouse at the time."

Did the government prove that he didn't plead to assaulting someone else in order to get the state to drop the charge of assaulting his wife?

[John F. Carr]

"Your summarist is wondering the whole time why the FBI is devoting its agents to a war on market-clearing prices"

Voters want the government to give them low prices. High prices are something the government can fix. Scarcity doesn't feel like so much of a government problem.

[Rossami]

I'll grant you that government regularly thinks they can fix high prices. But they also regularly think they can fix scarcity. (Look at the housing "crisis" for a few examples.) They are wrong on both counts.

[John F. Carr]

On gun serial numbers:

If serial numbers burden Second Amendment rights I would strike down the laws. Serial numbers were quite rare in the 18th century. On the other hand, if you argue that serial numbers are not enough of a burden on Second Amendment rights to worry about, I would be sympathetic. If I had a right to drive I wouldn't be suing to take the VIN off my car.

If heightened scrutiny applied to serial numbers I would want to see some good evidence that they do whatever it is they are claimed to do. How many people get stolen guns back thanks to a serial number? But the Supreme Court doesn't like using the standard levels of scrutiny for gun laws.

[Rossami]

It should probably be noted that the "standard levels of scrutiny" are not really standard. From everything I can tell, they were invented for and are only used in the context of the First Amendment.

[wvattorney13]

Sure it burdens the right. If try to possess a gun without a serial number I can't have it or I go to federal prison. That prohibition burdens my right to own a gun.

You may argue that it isn't that big of a burden because I can just go buy one with a serial number, but as you noted, that is specifically not the test for the 2A. Without a history or tradition requiring them, the regulation fails. That's straight up Bruen.

[con_fuse9]

Just for clarity.
Guns without serial numbers are not federally banned. If you make your own gun for your own use you are OK.
Many states have adopted laws against 'ghost' guns that ban guns without serial numbers.
This case was about someone with an obscured serial number. Someone actively removed (or attempted to remove) the serial number.

[Flight-ER-Doc]

So you make a gun and scratch a serial number into it.

I understand that 666 is popular, as is 01100110 01110101 01100011 01101011 00100000 01101111 01100110 01100110 00001010

[Absaroka]

I think the usual state 'ghost gun' serialization law is more like 'you take the soon-to-be-gun to an FFL, pay a fee, have the FFL engrave a serial number and record it in their records, then do a background check to make sure they can give it back to you'.

As an aside, there were pre-68 guns from commercial manufacturers that never had a serial number. Those are also legal - it the removal of an existing serial number that is verboten.

Aside #2: I don't object to serial numbers, or banning their removal, but my sense is they don't really solve many crimes. You'd need a fact pattern of Joe buys a gun via an FFL then leaves it at the murder scene, and that's a pretty rare set of events.

They can be used to return stolen guns (as with cameras or whatever). Possessing a gun or camera with an obliterated serial number seems grounds for suspicion, but I dunno if I'd make either a federal crime. FWIW, the serial number can often be recovered by etching etc.

[Harvey Mosley]

"If heightened scrutiny applied to serial numbers I would want to see some good evidence that they do whatever it is they are claimed to do. How many people get stolen guns back thanks to a serial number?"

I have. After about eight years I got a letter telling how to go through the process of getting permission from the state of California to re-take possession of my stolen gun and how much of a fee was required.

I will say that receiving a certified letter from the local PD was a bit of an "oh, shit!" moment until I opened it and saw what it was about.

[John F. Carr]

The Idaho smut ban includes a private right of action. The defendants are the Attorney General and two county prosecutors. I don't think the District Court can insulate schools from civil liability from private plaintiffs.

[John F. Carr]

In the Kansas case, plaintiffs established that the incentives for police did not deter constitutional violations. Fixing training materials, which is all the appeals court allowed, will not fix an incentive structure that rewards constitutional violations.

One could imagine that a Democratic administration, say President Polis, could start prosecuting these cops. That would be a huge break from tradition.

The partially dissenting judge used to be a Kansas public defender. He probably litigated some motions to dismiss involving unconstitutional traffic stops.

[mulched]

The violations by the KHP were real and need to be addressed. The injunction on the other hand was way over the top in the level of control it tried to assert.

I doubt Judge Vratil would have done much better if they have just remanded it, but I think something with more bite than just training was called for.

[tuphat]

With wigs?? Glad ya'll ain't trying that in states with anti-drag laws. 🙂

[tuphat]

#5 -- Never open the effing door.

[con_fuse9]

And the 4th and 14th amendments shrink a bit more.

This list was all rather depressing with all the QI rulings.

[Zarniwoop]

This list was all rather depressing with all the QI rulings.

First time reading Short Circuit?

[Flight-ER-Doc]

Was the animal control officer in #7 a former Broward County SRO?

[The WV Family Court Files]

When will SCOTUS start to hammer the out of control Family Court systems? I've started to document my case, in which extensive fraud on the court is proven by the record. With a Judge who was already suspended and placed on probation for misconduct, flagrantly violating non-discretionary requirements under the law and court rules. A Guardian ad Litem who refused to provide my attorney her "investigator's file" after being seen on courtroom video providing it to opposing counsel -- and who is now under investigation by the West Virginia Office of Lawyer Disciplinary Counsel for extensive lying under oath.

https://open.substack.com/pub/thefamilycourtfiles/p/west-virginia-family-court-where?utm_campaign=post-expanded-share&utm_medium=web

[momo]

Never

Family court cases are messy

Judges above the family courts don't want to deal with that mess. They don't view family court judges as "real judges"

Their solution is to just ignore it.

The result is a complete a total lack of law in the family courts. And no 1st level state court will handle, nor appeals court, nor SCOTUS.

[The WV Family Court Files]

Agreed. Speaking with state legislators, multiple have said the same thing: these judges are "demi-gods" with no accountability. Another litigant in my area described it as a "fake court with real consequences."