Butter or spray; liars and bad cops; and SecretAgentRandyBeans.

John Ross · April 21, 2023

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

New IJ cert petition: Friends, if you criticize a city official and then his allies maliciously scour the law books for a crime to charge you with, and then take additional, irregular steps to ensure you are thrown in jail, that right there is a First Amendment violation. Or at least it ought to be. There’s a circuit split on just what evidence you need to make out a retaliatory arrest claim, and in the Fifth Circuit evidence that no one has ever been charged with the crime in question for doing what you did doesn’t suffice. Click here to learn more.      

  • Back around 2005, the U.S. Postal Service started allowing people to buy custom-designed stamps from third-party vendors. The results were predictably hilarious. But when artist Anatol Zukerman sought to print copies of a drawing of Uncle Sam being strangled by a snake labeled “Citizens United” and configured as a dollar sign, the USPS rejected his design, even while accepting others with obvious political content. He sued and the D.C. Circuit held that the program violates the First Amendment. But must the USPS now allow the stamps? D.C. Circuit: No. The USPS ended the program and we’re not going to issue an injunction ordering them to print the stamps. Mr. Zukerman must content himself with declaratory relief.
  • So, E. Jean Carroll sued Donald Trump, alleging he defamed her when he responded to her accusation that he’d sexually assaulted and raped her in the mid-1990s. Then the United States sought to substitute itself for Trump under the Westfall Act, saying that he’d been acting within the scope of his duties when he made the statements. And then the district court said, “No way.” And then the Second Circuit said, “Well, maybe, but it mainly depends on District of Columbia scope-of-employment doctrine.” So then the Second Circuit certified to the D.C. Court of Appeals the question whether Trump’s statements would’ve been within the scope of his employment under D.C. law. And then the D.C. Court of Appeals accepted the certification, but instead of actually answering the certified question it last week said, “Here are some general thoughts on the state of respondeat superior law in our jurisdiction. Hope this helps.” And then today the Second Circuit said, “Thanks. Yeah, it might help. But you know whose problem that is? That’s the district court’s problem, that’s who (who’s set to preside over the Carroll-Trump trial starting this coming Tuesday).”
  • The Federal Tort Claims Act allows suits against the federal gov’t for assault or battery claims if the perpetrator was a “law enforcement officer.” That includes any federal official “empowered by law to execute searches.” Although TSA agents seem to do pretty much nothing but “execute searches,” the feds insist they’re not law enforcement agents and so the U.S. can’t be sued if TSA agents assault travelers. Fourth Circuit (agreeing with the Third and Eighth Circuits): TSA better search for another defense, because this one won’t fly.
  • Two intellectually disabled brothers are wrongly convicted of raping and murdering an 11-year-old girl and spend nearly 31 years in prison. They file various lawsuits to get pardons and compensation (in one case securing a $75 mil jury verdict, which was largely upheld by the Fourth Circuit last month.) But then they find themselves as defendants again—this time in a suit filed by one of their former law firms, which says they owe it money. District court: But wait, the N.C. Bar’s disciplinary commission previously found that the firm’s lead partner misled the brothers and did other unethical things. (Did we mention that the bar suspended his law license for five years too?) So the law firm loses its suit based on a combination of preclusion and unclean hands. Fourth Circuit: Seriously. Affirmed. (NB: If the underlying wrongful-conviction case piques your interest, here’s a podcast about the trial by the brothers’ lawyers. (No, not those lawyers; different, good lawyers.))
  • Harahan, La. police captain is written up for numerous infractions including conduct unbecoming, and the district attorney places the captain on the “Giglio list” of liars and bad cops, an averred death knell for his career. District court: The captain’s claim can go forward because he has an interest in working his occupation and being on the list jeopardizes that. Fifth Circuit: Working an occupation? How is that a liberty?
  • Man wrongfully convicted of Houston murders and put on death row is released but denied compensation. He then files a Section 1983 lawsuit against, among others, a detective who “discovered” exculpatory evidence while cleaning his garage. (The case is featured on Episode 8 of this Netflix special.) But wait! The Texas Supreme Court then orders the state to compensate him, and he gets $980k. Fifth Circuit: Which, per the state high court, bars his Section 1983 suit. Case dismissed.
  • Hammond, La. police officer who also works on a DEA task force is convicted of stealing money and property from arrestees and sentenced to over two years in prison. But wait! One of the jurors failed to disclose that he knew the officer’s wife: They went to a high school dance together and kept in touch on social media. Fifth Circuit: Possibly this calls for a new trial.
  • Man arrested for stealing Fruit Roll-Ups is thrown in Shelby County, Ky. jail, where a guard recognizes him; he’s the guard’s “wife’s ex.” The guard asks the man’s cellmates to “take care of” him, and over the course of several hours they beat him to a pulp. A jury awards the man $2 mil against the guard. Sixth Circuit (unpublished): And that’s all he’s entitled to; though he wasn’t taken to a hospital and the jail’s medical staff missed several injuries (including traumatic brain injury and facial fractures), no one else is liable. [Ed.: Criminal liability-wise, the guard got a mere slap on the wrist in state court, but then the FBI picked up the case.]
  • Twenty-year-old Ohio man runs an online chat room for the “75th Spartans,” where he urges others to help him create a militia group and revolt against tyranny. The group is infiltrated by FBI informants, and the man is eventually arrested and convicted of attempted kidnapping based on a scheme to lure a police officer to a secluded area and rough him up to gain notoriety and new members. Sixth Circuit: Well, his inchoate scheme turned on the as-yet unsecured participation of a 14-year-old with the screenname “SecretAgentRandyBeans,” and all of the overt acts were shepherded along by the FBI. So it’s tough to say he wasn’t just playing make-believe. Conviction overturned. Dissent: The jury thought he was serious enough about his plans to convict him, which should be good enough for us.
  • Seventh Circuit: Just because you use a fake identity to rent an apartment doesn’t mean the landlord can give the police free rein over your place; police still have to show you don’t have a reasonable expectation of privacy in it. Oh, and they can’t use facts they learn after a search to justify it.
  • California man sues Amazon on behalf of a class of drivers for a delivery program known as Amazon Flex. He alleges that Amazon monitored and wiretapped their conversations when they communicated during off hours in closed Facebook groups. Amazon: You accepted our terms of service, and under the 2019 version of our arbitration clause, even the issue of arbitrability is subject to arbitration. No federal court for you. Ninth Circuit: You’ve provided no proof this guy ever received the 2019 version, so, applying the 2016 version he actually agreed to, we hold this dispute is not subject to arbitration.
  • In 1893, the Supreme Court deemed the tomato a vegetable. And in 2023, the Ninth Circuit answered another food question for the ages: Is “I Can’t Believe It’s Not Butter! Spray” a spray or a butter? Dissent: “I am not ready to declare as a legal proposition that a ‘squirt’ is a ‘spray.'”
  • The federal Energy Policy and Conservation Act prohibits state or local regulation concerning the energy efficiency or energy use of many natural gas appliances used in commercial restaurants. “No problem!” say officials in Berkeley, Calif., “We’ll just ban the installation of natural gas piping into those buildings.” An association of chagrined restaurateurs sues, alleging the ban is preempted by federal law. Ninth Circuit: And it is! The city is prohibited from prescribing a “quantity of energy” to be used by these products, even if that quantity is “zero.”
  • If you’re still playing federal contractor vaccine mandate bingo at home, the Ninth Circuit says put markers on Major Questions Doctrine (it does not apply), Presidential authority under the Procurement Act (the President has it), nondelegation doctrine (don’t party like it’s 1935), and federalism (yeah, that doesn’t stop the mandate either).
  • And in en banc news, the Sixth Circuit will not reconsider its decision sending to trial Lewis County, Ky. jailers whose inaction in obtaining medical treatment for a detainee led to his dying on the way to the hospital. Readler, J., statement respecting denial of rehearing en banc: The “original sin” here was the Supreme Court’s 1976 decision “to divine constitutional rights for inmates who have been harmed in prison.” They should seek remedies under state law. 

Victory! North Carolina’s Opportunity Scholarship Program provides scholarships of up to $4,200 for low-income families to send their children to one of over 500 participating private schools, and we’re happy to report that a constitutional challenge to the program was just voluntarily dismissed. The dismissal comes on the heels of a state appeals court ruling that the challenge was a broad, facial attack on the program instead of a more narrow, as-applied challenge, which as good as doomed the lawsuit because the program had already withstood an earlier facial challenge. “I’m so happy we can continue to use OSP funds to give Nariah the education she needs to be her best self,” said IJ client Janet Nunn (pictured with her granddaughter, Nariah). “This scholarship has allowed Nariah to excel and blossom into a confident, smart young woman, who understands the value of hard work.” Click here to learn more.