Carjacking, arson, and obscured license tags.

John Ross · October 6, 2023

For those who enjoy rollicking crossover episodes, take a listen to Ken White (of Serious Trouble fame), who stopped by the Short Circuit podcast this past weekend.

  • District court (2018) sentences carjacking defendant to 195 months’ imprisonment. Defendant on appeal: The district court wrongly factored in a bunch of my previous arrests, even though those arrests didn’t actually lead to convictions. Gov’t: Dude’s right. First Circuit (2019): So he is. Sentence vacated and case remanded for re-sentencing. District court (2020): Welcome back, friend. While your case was on appeal, a couple of those previous arrests led to convictions, so now your criminal-history category is higher than it was when I sentenced you the first time. Your new sentence is now 240 months. First Circuit (2023): Seriously? “Sandbagging is not in fashion in this circuit.” Remanded for a third try (and while the opinion itself is far too courtly to say so, the accompanying judgment quietly directs that the case be reassigned to a different judge on remand).
  • This Second Circuit decision is largely unremarkable, but for footnote *, which observes that Judge Alison Nathan was originally assigned to the appeal as a district-court judge sitting by designation but now appears on the panel decision as a full-fledged circuit-court judge.
  • Remember the Fifth Circuit panel that last month enjoined various actors within the Biden administration from pressuring social-media companies to take down posts the feds dislike? This week, that panel withdrew its opinion and substituted a new one. Unhelpfully, they do not summarize what was changed, and, for our part, we refuse to read it again. It looks like they mostly reach the same conclusion, but who knows? If you want to figure it out, we have created a track-changes version that you can access here.
  • Woman in Harris County, Tex., repeatedly calls the cops to complain about a neighbor’s loud music. Every time officers respond, they hear nothing. As soon as they leave, the woman then calls back and insists that the neighbor has turned up the music again. After the third such call in one day, one officer purports to drive away, but in actuality lies in wait. A stakeout! Minutes later, the woman calls in another noise complaint. But the officer, lurking behind a fence, hears nothing and arrests the caller for “telephone harassment.” The charge is ultimately dropped. A Fourth Amendment false-arrest violation? Fifth Circuit: Don’t know don’t care. Qualified immunity.
  • In which the Fifth Circuit honors the first rule of admiralty law: seafaring puns.
  • Appellant: I hereby move for an expedited appeal plz. Sixth Circuit: Sorry, we couldn’t possibly make time for that, but here are nine pages on why you’ll almost certainly lose on the merits once we get around to deciding your appeal on a non-expedited basis.
  • “We understand [the plaintiff’s] frustration” is not the kind of thing that plaintiffs like to hear from a court. So it is in this Sixth Circuit case, in which a plaintiff with a (state) court judgment entitling him to proceeds from the sale of his farmhouse—forfeited after his son used it to grow marihuana—has no recourse on a (federal) takings claim. (Per Michigan’s Cannabis Regulatory Agency, “[a]n act of the Michigan Legislature would be required in order to change the spelling of marijuana in Michigan statutes” from marihuana to marijuana, and we at Short Circuit are nothing if not sticklers for pedantry.)
  • Since 1979, Tennessee has made it a crime for anyone (other than an election official) to distribute the state’s official form for applying to vote absentee. Labor unions and non-profits: We want to hand out the form during get-out-the-vote drives, and the prohibition infringes our First Amendment rights. Sixth Circuit: The law’s fine. And we’re unbothered by the fact that Tennessee now makes the application form freely available online. (We at Short Circuit are chilled from posting a hyperlink, lest it transform us into Class E felons in the Volunteer State, but Google it!) Dissent: Sure seems like sharing political documents is core political speech.
  • Lexington, Ky. inmate is repeatedly sexually assaulted by prison employee (who is now himself incarcerated). She sues his employer (the United States) for negligence under the Federal Tort Claims Act. Feds: We first learned about this situation when other inmates reported the employee, after which we sprang into action. Sixth Circuit: It’s possible that the feds knew before then—and they are indeed required to act upon learning of such incidents—but that possibility isn’t enough for the inmate’s case to proceed.
  • In 2023, both Tennessee and Kentucky pass laws prohibiting healthcare-providers from administering certain treatments for minors experiencing gender dysphoria. Generally, the laws limit surgeries, puberty blockers, and hormones. Both laws are preliminarily enjoined (injunctions stayed pending appeal). Sixth Circuit: “Prohibiting citizens and legislatures from offering their perspectives on high-stakes medical policies, in which compassion for the child points in both directions, is not something life-tenured federal judges should do without a clear warrant in the Constitution.” Dissent: The laws conflict with the prevailing standard of care, along with equal protection and due process. They should not take effect.
  • Pro tip to the defense bar: If your client is facing fifty years for cocaine possession, you’re not going to want to see the Seventh Circuit later quoting your admission that you “really didn’t do anything independently to develop any mitigation.” (Unless you’re playing ten-dimensional chess and falling on your sword to get your client a shot at habeas.)
  • Parents’ group sues to challenge policy of Linn-Mar Community School District, Iowa, which provides that students’ “Gender Support Plans” must be concealed from students’ parents. Eighth Circuit: Well, Iowa schools aren’t allowed to do that anymore, so that part of the case is moot. But a policy requiring students to “respect a student’s gender identity” is probably void for vagueness.
  • In 2020, Idaho passed a law to prohibit most abortions in the state in the event the Supreme Court ever overturned Roe v. Wade. When the Supreme Court did just that, the law went into effect. Feds: Idaho’s law is preempted by the Emergency Medical Treatment and Labor Act, which requires emergency-room doctors to stabilize patients’ emergency medical conditions before transferring them. Ninth Circuit: There’s no conflict here. Among other things, the Idaho law does not prohibit abortions that are necessary to save the life of the mother, and EMTALA expressly requires that doctors stabilize both the mother and the unborn child when possible.
  • After an outbreak of COVID-19 at a California prison, officials transfer 122 high-risk inmates to San Quentin State Prison, which had no known cases. Uh oh! The negative COVID tests for the transfer prisoners are more than three weeks old—essentially useless. The transferees cause an outbreak at San Quentin, infecting over 2,000 inmates and killing 26 inmates and one guard. The wife of a deceased inmate sues. Ninth Circuit: No immunity under the Public Readiness and Emergency Preparedness Act. And no qualified immunity either.
  • Following arson investigation by Tucson, Ariz. police, husband and wife sue the city and one of the officers for Fourth Amendment violations and violations of Arizona’s public-records law. In response to the lawsuits (the couple allege), the police then reopen their original criminal investigation and try to induce the IRS to investigate the couple as well. Couple: Come on! That’s First Amendment retaliation! Ninth Circuit: Maybe it is, maybe it isn’t. The couple “identify no caselaw that clearly established that a retaliatory investigation per se violates the First Amendment,” so (all together now!) qualified immunity.
  • Thai Buddhist meditation center wants to operate out of a converted residential house in Mobile, Ala., but it can’t get zoning approval. It sues under the Religious Land Use and Institutionalized Persons Act, the Free Exercise Clause, and the Alabama Constitution’s Religious Freedom Amendment, but loses all three claims on summary judgment. Eleventh Circuit: RLUIPA is a draw (i.e., must go to trial) and Free Exercise is a loss for the center. But ARFA is a win: The city failed to show a compelling interest in keeping the meditation center out of the neighborhood.
  • Pasco County, Fla. sheriff’s deputy pulls over a vehicle towing a trailer because the trailer’s license tag is obscured. He asks for ID from the driver, who complies, but when he asks for ID from the passenger, the passenger refuses, pointing out that he’s not suspected of any wrongdoing. The passenger is arrested for “resisting without violence” and later sues. Eleventh Circuit: It would be mighty odd if the officer were allowed to order the passenger out of the car—as SCOTUS has said he is—but not allowed to ask for ID, so the officer gets qualified immunity. Dissent: It would be even more odd if an officer were prohibited from arresting a pedestrian for refusing to identify himself—as SCOTUS has said he is—but allowed to arrest a passenger for the same reason. Concurrence: The very fact that you two disagree means this right isn’t clearly established.

State-constitution alert: IJ represents two hunting clubs who are tired of Pennsylvania game wardens’ prowling around their land without a warrant. SCOTUS says such prowling is fine under the Fourth Amendment. But what about the Pennsylvania Constitution? We’ll soon find out. A state appellate court just held that giving game wardens “unfettered discretion to enter upon and roam private land without consent, warrants, or probable cause” is all good. (Shoutout to the concurring judges, who “fundamentally disagree.”) IJ now plans to appeal and see what the Pennsylvania Supreme Court has to say about that.