Chalk, meme stocks, and a dog in peril.

John Ross · August 18, 2023

New on the Short Circuit podcast: Searching for iCloud data, guns, and El Dorado.

  • Allegation: In summer 2020, thousands of protesters gather in D.C., leading to much sidewalk-chalking of the phrase “Black Lives Matter”—a violation of D.C.’s defacement ordinance. No chalking-related arrests ensue. Around the same time, however, police arrest pro-life protesters for chalking “Black Pre-Born Lives Matter.” Selective enforcement in violation of the First Amendment and the equal-protection component of the Fifth Amendment? (Shout out to you, Bolling v. Sharpe!) District court: No dice. D.C. Circuit: Agreed that there are no dice to be had on the equal-protection claim, since there are no allegations that D.C. officials had a discriminatory motive. But the plaintiffs have plausibly alleged dice under the First Amendment, which prohibits viewpoint discrimination whatever the gov’t’s motives might be.
  • Naturalized American citizen from Morocco pleads guilty in 2006 to conspiring in 2001 to transfer money to mujahideen in Afghanistan and Chechnya. Uh oh! He also lied about that on his paperwork when he became a citizen in 2002. After serving 10+ years in prison, he’s released and the feds begin the denaturalization process. He argues his lawyer never warned him that he could lose his citizenship by pleading guilty. Second Circuit (over a dissent): Nor was he required to.
  • When environmental groups challenged the authorization of the Mountain Valley Pipeline—a 300+ mile underground pipeline to transport natural gas from West Virginia to Virginia—Congress responded by ratifying the agency decisions authorizing the pipeline, stripping the Fourth Circuit of jurisdiction to hear any challenges to it, and vesting exclusive jurisdiction in the D.C. Circuit. A valid exercise of the legislative power? Fourth Circuit (with concurrences): Yes, albeit a troubling one.
  • Montgomery County, Md. school officials adopt Guidelines for Gender Identity for 2020–21 that permit schools to develop gender support plans for students, which allow implementation of these plans without the knowledge or consent of the students’ parents and even authorize the schools to withhold information about the plans from parents. Concerned parents sue. Fourth Circuit (over a dissent): But their kids don’t have gender support plans, so the parents have suffered no injury. Case dismissed.
  • It’s too late to challenge the FDA’s 2000 approval of the abortion-causing drug mifepristone, says the Fifth Circuit, but agency decisions in 2016 and 2021 to loosen some restrictions on its availability might have violated the Administrative Procedure Act. (Though, per SCOTUS, nothing changes for now.)
  • Attorneys: Consider not taking your work phone with you on international trips, lest you end up like this Texas immigration attorney whose phone was seized on his return home from Costa Rica. When he refused to unlock his phone, the feds took it and extracted all the data (including lots of privileged material) before returning his phone five months later. Fifth Circuit: All of which is totally fine! Even if the reason for searching him (a supposed connection to an int’l arms dealer) “appears dubious in hindsight,” DHS was entitled to do it.
  • Friends, it’s best to avoid “rude comments and gestures” if you find yourself in San Benito, Tex. When a long-feuding neighbor called police on a homeowner for such contumely, an officer arrived and argued with the homeowner through a chain-link fence. When homeowner turned to go into his house, officer forced his way through fence, pushed homeowner to the ground, and arrested him. Fifth Circuit: Get off his lawn (at least until you get a warrant). Homeowner’s false arrest claim should go to a jury. (But an excessive force claim and claims against the city were properly dismissed.)
  • Police seize over $30k from Ohio couple they suspect of drug trafficking. Then they wait … and wait … and wait … for over 19 months before initiating a forfeiture proceeding (which they eventually abandoned), even as the couple repeatedly asked for the money and went so far as to file a lawsuit to get it back. Does that delay violate due process? Sixth Circuit (unpublished): Sure seems like it, and no prosecutorial or qualified immunity for the responsible officers.
  • Kentucky high school student attends a political demonstration near the Lincoln Memorial. This leads to an interaction between the red-hatted teenager and a Native American man that goes viral. The media coverage is predominantly unkind toward the teenager, who alleges that media orgs defamed him by repeating the man’s statements that the teen blocked him from leaving. Sixth Circuit: The man’s statements were opinion, not fact, so they’re protected by the First Amendment and not defamatory. Dissent: The reporting vilified the teen as a racist while the videos depict something entirely different. A jury should determine whether the media orgs exercised reasonable care in reporting an objectively verifiable factual statement.
  • In response to a COVID-19 spike in November 2020, Kentucky barred in-person learning for all private and public elementary and secondary schools. A group of churches, religious schools, pastors, and parents sues the governor, alleging that the ban violated their First Amendment rights. Sixth Circuit: Qualified immunity all around. The ban applies equally to all schools, religious and otherwise, and was issued amid a vibrant debate on a constitutional issue. Concurrence: 2020 was a wild time; it’s difficult to say that the governor acted in a “plainly incompetent” manner.
  • Cook County, Ill. officials sue banks under the Fair Housing Act. Allegation: The banks made credit too readily available to some (minority) borrowers, leading to the borrowers’ defaulting, leading to foreclosures on their homes, leading (and this is where the County’s beef comes in) to vacant properties, lost tax revenue, and transfer fees. Seventh Circuit: That causal chain is way too attenuated for you, County, to be the one to bring the Fair Housing Act claim.
  • Paris, Wisc. bans sex offenders from living within 6,500 feet (1.2 miles) of each other or of protected locations where children congregate. Together, these restrictions make all the more affordable, multifamily housing unavailable, thereby forcing one sex offender to leave town. He sues, saying the rule is an unconstitutional ex post facto punishment. Seventh Circuit: The proximity restriction on protected locations is fine, but the ban on sex offenders living within a mile of each other may well be a bridge too far.
  • Over the course of several months, a Nebraska college student repeatedly sexually assaults a campus security officer (who is also a student) and taunts her. The school initiates Title IX proceedings and imposes a series of sanctions, including a no-contact order, weekly counseling sessions, and an order to read a book. The security officer, believing the student should be removed from campus, sues the college for violating Title IX. A jury finds for the security officer, but the Eighth Circuit reverses, deeming the school’s behavior reasonable. Dissent: There’s enough evidence for a jury to find for the security officer.
  • Kansas City, Mo. officer summoned to the scene of a domestic dispute shoots dog who ran out the front door barking. Turns out there was no dispute at the home. Owners: The dog was 14 and had turned around to go back in the house when it was killed. Officer: It had turned toward my fellow officer. Eighth Circuit: Split-second decision. Qualified immunity.
  • Allegation: Developmentally delayed California man confesses to a murder—sarcastically, after a 15-hour interrogation. The first DA on the case thinks he’s innocent. The case is reassigned, and the second DA thinks he’s innocent too. Then someone else confesses. Even so, the DA’s office refuses to disclose the new confession (and again reassigns the case). The office finally drops the prosecution after the man spends nearly four years in pretrial detention. Ninth Circuit: The failure to disclose the other confession isn’t a Brady violation (because it didn’t affect the outcome of a judicial proceeding). But the wrongly detained man should get to try a different due process claim.
  • Of the 21 states that have passed restrictions on transgender women competing in women’s sports, only Idaho requires invasive physical exams (in the event that any individual disputes an athlete’s sex). Ninth Circuit: Which most likely violates the Equal Protection Clause. Preliminary injunction affirmed.
  • Remember back in 2021 when everyone on Reddit was buying “meme stocks” like GameStop and AMC, and the online broker Robinhood restricted trading? People who claim they missed out on buying more of the touted stocks sued. But, per the Eleventh Circuit, Robinhood’s contract with traders gave it the right to do exactly what it did.

After DEA agents took $8.5k cash from him at Atlanta’s airport, Brian Moore, Jr. spent over a year fighting the forfeiture and his attorneys incurred over $15k in legal fees. And he prevailed after the gov’t threw in the towel, asking for the case to be dismissed with prejudice in an order returning the cash. But the district court declined to award the attorney’s fees mandated by the Civil Asset Forfeiture Reform Act to substantially prevailing claimants like Brian. Now represented by IJ, he is appealing to the Eleventh Circuit. Click here to learn more.