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

Lies, damned lies, and statutes of limitations.

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

Friends, we invite you to a stellar little event we're hosting on "The Other Declarations of 1776." As part of the nationwide celebration of 250 Years of America, we're partnering with the Liberty & Law Center at Scalia Law School for an examination of the various declarations of rights that the new states adopted in 1776. It's Friday, April 10 in Arlington, Va. Register here! And, if you want to learn more about The Other Declarations in the meantime, check out the latest blog post in our series, this week focusing on Maryland.

New on the Short Circuit podcast: A judicially engaged judge grants habeas when faced with a masked Fourth Amendment.

1. The head of NYC schools' food services division co-owns a beef-importing business with executives from a company that supplies the schools with chicken. Second Circuit (unpublished): And since the chicken company executives upped his ownership stake in the beef business in exchange for letting some suspect chicken slide, lots of convictions on lots of counts affirmed all around.  
2. Does it violate the Constitution to prohibit a guy who wasn't forthcoming about his criminal arrests from obtaining a concealed carry license? Second Circuit: Who can say? He sued the New York state judge who denied his application, and judges have absolute immunity for adjudicating applications.
3. Allegation: Wheeling, W.V. officers want to arrest Ashley Marie Cooper, but—yikes!—obtain arrest warrant for Ashley Anna Cooper, who has a different eye color, different height, different weight, different SSN, different address, etc. (Ashley Anna is indeed arrested.) District court: But the deadline to file suit is one year, and you took 23 months. Case dismissed! Fourth Circuit: Reversed. We say again that the SOL for all 1983 claims in W.V. is two years.
4. Discharged employee's contract gives her only 180 days to file any kind of employment discrimination lawsuit, even though both Title VII and the ADEA would have given her at least 270. She files her lawsuit 196 days after being fired. Fourth Circuit: And that was fine; you can't contract around Congress's remedial scheme.
5. Fourth Circuit: A jury might have a look at the video of a Alleghany County, Va. deputy (now a state trooper) punching a suspect in the face 12 times—breaking his jaw, his orbital bone, and causing a brain bleed—and think that was unreasonable. No qualified immunity.
6. Friends, we often find ourselves confused about when it is okay and not okay for gov't officials to lie. Anyhoo, per the Fifth Circuit, in this case about a Border Patrol agent who lied about using excessive force, it seems like part of the answer is that lying is not okay before being prosecuted for lying.
7. Michigan's constitution provides that "[t]he right of all individuals, firms, corporations and voluntary associations to fair and just treatment in the course of legislative and executive investigations and hearings shall not be infringed." Sixth Circuit: But since Michigan courts haven't really said what that means we're going to let this now-former school board president, who says he was improperly removed from office, have a go in state court if he wants. Case abstained!
8. Some may quibble with the title of the "Antiterrorism and Effective Death Penalty Act" or AEDPA (pronounced in certain circles as "ed-pah"). Others may argue it is unconstitutional under either Loper Bright or Marbury v. Madison because it prevents judges from saying "what the law is." Sixth Circuit: That's not a worry in this case, where a guy who killed two people in a Kentucky convenience store in 1987 raised insanity as his only defense. Dissent: I think it is a worry and I've read the Federalist Papers.
9. What happens when—after months of thunderous litigation over Operation Midway Blitz including a massive injunction, a stay of that injunction, and a 170-page ruling on the fed's unconstitutional suppression of protestors—the parties jointly agree to just dismiss the whole darn thing with prejudice but then the district court dismisses it without prejudice? A nuanced Seventh Circuit opinion, and dissent, about vacatur, Appellate Rule 42, life, the Universe, and everything.
10. Did a Wisconsin prison violate a Muslim inmate's rights by declining to print out for him a correct prayer schedule to guide the timing for his prayers? Seventh Circuit: No problem under RLUIPA because requiring the man to buy his own schedule doesn't place a "substantial burden" on his religious exercise.
11. To disperse looters during 2020 unrest, Des Moines police officer, a "less-lethal munitions expert" who is in "fear for his life," rides around in a Bearcat shooting people without warning or command. People like this plaintiff, who wasn't rioting or looting and who suffered a broken finger. Eighth Circuit: Because the officer didn't intend to arrest her, there's no Fourth Amendment claim, and, because he didn't intend to harm her, there is no Fourteenth Amendment claim.
12. Gun store owner becomes police chief of Adair, Iowa, and uses the opportunity to authorize himself to buy 90 machine guns which he intends to stockpile and later sell for a fat profit. In his private capacity, he also hosts a for-profit machine gun shooting event. He's later charged with making a bunch of false statements and illegal possession of a machine gun. He's convicted. Eighth Circuit: But the possession charge must be overturned. He couldn't have known the law applied to him when he was off-duty. Concurrence: Of course it didn't apply to him. Dissent: Of course it applied to him.
13. "Despite the obvious dangers that fires pose on ships, Boylan never trained his crew on what to do if one broke out. When a crew member asked Boylan when they could discuss safety procedures covered in his employee orientation packet, Boylan 'chuckled' and responded with words to the effect of: 'When we get to it.'" Thirty-four passengers subsequently die in a fire. Ninth Circuit: Conviction for seaman's manslaughter affirmed.
14. Seattle ordinance forbids delivery apps from deactivating workers' accounts for certain reasons and also requires each app to inform their workers in writing of its deactivation policy. Does the second part compel speech? Ninth Circuit (majority): Of course not. Firing your workers is conduct, so we're just talking about conduct here in this other part of the statute that requires you to inform your workers of stuff. Dissent: Informing people of stuff is speech, guys.
15. If you'd like a stable policy of refugee admission and resettlement, this Ninth Circuit opinion will teach you that your best bet isn't for Congress to offload the pesky interstitial decisions required to come up with such a plan onto the president. But the partial dissent adds that the important thing is that an imperial judiciary would be super dangerous.
16. In this lawsuit about whether a Colorado inmate's right to practice his Sac & Fox faith was violated, diligent readers can enjoy a procedural trifecta courtesy of a prickly Tenth Circuit opinion. Is the suit constitutionally mooted by the prisoner's transfer to a different facility? No (and we're kinda peeved that the gov't "inexplicably" didn't tell us about the transfer until the eve of oral argument). Is the suit prudentially mooted? No. Is the Colorado governor a proper defendant? Yes!
17. There's a lot legally going on in this Tenth Circuit decision involving a lawsuit brought by parents against a Talihina, Okla. teacher (and various school and district officials) for bullying their fifth-grader, but mostly it's an extremely compelling case for school choice.
18. And in en banc news, the Third Circuit will not reconsider its decision that lawyers who win habeas cases on behalf of detainees can petition for fees under the Equal Access to Justice Act.
19. And in more en banc news, the Fifth Circuit will not reconsider its decision that—like the previous two—a third challenge to a preliminary injunction against the Angola state penitentiary became moot after its automatic expiration under the Prison Litigation Reform Act. Judge Jones (joined by four others) is hopping mad at the district court for entering serial injunctions, so much so that four judges chime in to ask her to cool it a little.
20. And in cert denial news, there will be no recourse for IJ client Hamdi Mohamud, who spent almost two years in prison as a teenager because a St. Paul cop told a bunch of lies to fellow officers, prosecutors, grand jurors, and judges. While the Eighth Circuit held that lying and sham investigations violate clearly established law, it also held that because the cop was on a state-federal task force there is no way to sue over it. This week, SCOTUS declined to take up the case. Click here to learn more.

Victory! In New Jersey, if city officials want to take your property by eminent domain and give it to someone else who they like better, they must first find that it is "blighted." But what if the blight designation is just a pack of lies and your property is perfectly fine? We're happy to report that a state trial court says that, under state law and the state constitution, "speculative assertions, generalized concerns, and incomplete or unreliable evidence" won't fly. Click here to learn more.

Comments

[TextFirst]

Some may quibble with the title of the "Antiterrorism and Effective Death Penalty Act" or AEDPA (pronounced in certain circles as "ed-pah"). Others may argue it is unconstitutional under either Loper Bright or Marbury v. Madison because it prevents judges from saying "what the law is." Sixth Circuit: That's not a worry in this case, where a guy who killed two people in a Kentucky convenience store in 1987 raised insanity as his only defense. Dissent: I think it is a worry and I've read the Federalist Papers.

Seeing as how this guy murdered people in 1987 and was sentenced to death in 1990, I'd say the Death Penalty is anything but "effective." Statistically speaking, he'll most likely die of old age and keep filing meritless papers until the day he dies.

[SRG2]

#20: another case for my baseball bat law

[John F. Carr]

From the machine gun case:

"A law may also be vague if it invites arbitrary enforcement. ... First, the government charged Officer Vest with illegal possession even though it did not charge the other police officers who possessed the same machine gun during training."

Totally fine when traffic law is concerned.

Later:
"Could the government charge a police officer with possession of a machine
gun if she had the firearm in her vehicle while off duty for a meal break or running a personal errand? Could the government charge a law enforcement agent if he was in plainclothes or undercover? Could the government charge an officer if she was only five miles outside the city where her police department was located?"

I remember a Supreme Court case on the elusive word "willful". Defendant knew he was breaking one law so he had a guilty mind and was willfully breaking a different law. One justice had a hypothetical: What if defendant got a speeding ticket on the way to the real crime? Is that enough to make the unknowing violation willful?

[John F. Carr]

In the Third Circuit, recently appointed Judge Bove does not want aliens winning habeas cases to be awarded attorney's fees.

[John F. Carr]

"Is the Colorado governor a proper defendant? Yes!"

The Tenth Circuit said the governor could have some influence over prison conditions so the governor can be sued. In order to get the governor out of court the official action has to be insulated from his power by a commission he can't boss around. If a state has a unitary executive, sue the governor every time. Trickle down litigation.

[SRG2]

Trickle down litigation.

Very good!

[John F. Carr]

In the seaman's manslaughter case, the Ninth Circuit ruled that ordinary negligence rather than gross negligence was sufficient to convict.

[F.D. Wolf]

And in en banc news, the Third Circuit will not reconsider its decision that lawyers who win habeas cases on behalf of detainees can petition for fees under the Equal Access to Justice Act.

Recently-appointed Judge Bove, joined by four others, would have granted rehearing en banc. After writing that he disagreed with the panel's opinion that "any civil action" included a habeas proceeding, he continued:

The fee awards in these cases were inappropriate for an additional reason. The government’s positions regarding Petitioners’ detention were “substantially justified” and “special circumstances” made the fee awards “unjust"...

Take, for example, the case of Petitioner Adolph Michelin. Michelin overstayed a tourist visa issued to him in 2010, and he was later convicted of a marijuana offense as well as resisting an officer in a separate incident. While remaining in the United States without authorization, he was arrested several other times for offenses relating to narcotics, aggravated assault with a firearm, and aggravated battery on a pregnant woman. After DHS entered a final order of removal in 2018, but bailed Michelin while he challenged the order, he absconded. Following another narcotics arrest in 2021, and facing removal on March 31, 2022, the BIA granted Michelin’s March 25, 2022 motion to reopen but decided to keep him detained during that process. A magistrate judge granted habeas relief, holding that this detention violated Michelin’s due process rights because it was unreasonable for DHS to presume that he presented a flight risk and danger to the community. I do not see it that way for an alien with Michelin’s history, lack of ties to the United States, rap sheet, and a documented instance of flight, but that was not my call to make. The magistrate judge later directed the government to pay Michelin’s attorneys’ fees relating to that litigation. I believe that was an abuse of discretion that led to an outcome Congress could not have intended.