Collisions, allisions, and grand jury witnesses.

John Ross · August 19, 2022

Friends, do you like tacos? What about late at night, perhaps after an adult beverage? If so, you should be just as hopping mad as we are about the city of Denver’s recent ban on food trucks in Lower Downtown. Though ostensibly enacted with the goal of reducing crime, a 2012 IJ study found that the presence of food trucks actually reduces crime by providing extra eyes on the street. Smells like protectionism for brick-and-mortar restaurants to us. While a letter from IJ convinced the city to partially repeal the ban, IJ won’t rest until the senseless ban is totally repealed. Click here to learn more. 

  • Pro tip from the D.C. Circuit: If you’re trying to intervene in a case on the grounds that an existing party doesn’t adequately represent your interests and the appellate court invites you to show up at oral argument to represent your own interests, you say yes. 
  • Can the government forbid employees of the Administrative Office of the United States Courts from engaging in off-hours partisan activity in order to preserve the judiciary’s reputation for impartiality? D.C. Circuit (over a dissent): The only way for Administrative Office employees’ activities to affect the judiciary’s reputation would be if the public knew the Administrative Office existed in the first place, which is . . . contestable. 
  • Maine officials: The dormant Commerce Clause doesn’t apply to marijuana because Congress has outlawed interstate commerce in marijuana. First Circuit (over a dissent): I don’t know if you guys have noticed, but there’s a pretty big interstate market in marijuana anyway, so the doctrine still applies. 
  • Second Circuit: For a job applicant to be entitled to an ADA-mandated accommodation on an employment exam, the applicant must show he’s qualified to do the job he’s applying for, not just that he’s qualified to take the exam. 
  • Bribe-danglers worldwide beware! As this Second Circuit opinion illustrates, if you, as a non-citizen based wholly outside of the U.S., orchestrate the bribing of foreign officials, also outside the U.S., the United States may nonetheless bring you to trial some 15 years later, after which only slightly more than half of your convictions will be thrown out on appeal. 
  • Pennsylvania woman shops for pet stairs from an online gift company. Unbeknownst to her, the company is allowing a third-party marketer to snoop on her shopping activity. Yikes! She says that’s illegal wiretapping. District Court: Give me a break, case dismissed. Third Circuit: Not so fast. The Pennsylvania statute may indeed be broad enough to reach this case. Remanded for more factfinding. 
  • Jersey City passes an ordinance encouraging short-term rentals, and investors take up the city’s invitation by buying properties to rent out short-term. But when the hotel industry gets upset and the mayor’s relationship with Airbnb sours, the city changes course and significantly restricts short-term rentals. The investors cry foul and say the about-face violates several constitutional provisions, including the Takings Clause. Third Circuit: Courts aren’t in the business of second-guessing zoning laws, so all your claims fail. Concurrence: Modern “regulatory-takings doctrine is a mess,” and rather than using a fuzzy multifactor test courts should just ask whether the government has “taken a property right and pressed it into public use.” 
  • Delaware and Hoboken, NJ sue oil companies, alleging they committed various state-law torts for their role in causing climate change. Oil companies: Whoa, these are claims with national and global ramifications, and they belong in federal court. Third Circuit: We agree with our sister circuits that, although climate-change suits are a big deal, these are still just state-law claims, so to state court they shall go. 
  • Trans woman housed in a Fairfax County, Va. prison alleges she was mistreated and denied proper hormone treatments. She sues, principally claiming the prison violated the Americans with Disabilities Act by failing to accommodate her disability arising from gender dysphoria. District Court: Gender dysphoria isn’t a disability under the ADA, which excludes “gender identity disorders not resulting from physical impairments.” Fourth Circuit: The contemporary medical understanding of gender dysphoria isn’t a “gender identity disorder,” especially because excluding gender dysphoria from the ADA would likely be unconstitutional discrimination against trans people. So the claim can go forward. Dissent: “My view here is not in any way a value judgment on . . . those with gender dysphoria,” but it is clearly a condition Congress meant to exclude from the ADA in 1990. 
  • Emmitsburg, Md. postal employee is fired and then brings discrimination claims against USPS. District Court: All claims dismissed and case closed. But wait! One claim is dismissed without prejudice, yet the court is silent about whether the plaintiff can amend the complaint. Fourth Circuit: Before we get to the merits, we need to take this en banc to decide whether this odd duck is a final judgment that can even be appealed. We unanimously reject our old case-by-case finality standard and adopt a bright-line rule that a dismissal of all claims is final unless the district court expressly grants leave to amend. Even so, a reminder to district courts and lawyers: you really should “clarify the finality of an order before” anyone “knock[s] on this Court’s door.” 
  • Supervising a 50-year-old school desegregation order, the Fifth Circuit concludes that the district court correctly found that the Saint Martin Parish, La. school board has done a pretty lousy job by just about any metric of remedying de jure segregation. But the district court nevertheless exceeded its discretion when it ordered the closure of a predominantly white elementary school as a remedy. 
  • In which the Fifth Circuit determines that Sealed Appellee was not a John Doe. Tough luck, Sealed Appellant. 
  • Last November, the Fifth Circuit denied qualified immunity in a case involving the unconstitutional arrest of a journalist for the “crime” of asking public officials questions about things that had not yet been made public. At the time, a forthcoming dissent was promised. At long last, it has arrived, and Judge Ho, concurring in his original panel opinion, is singularly unimpressed. (IJ filed an amicus brief in this case.) 
  • This week, courtesy of the Fifth Circuit, your editor learned the difference between a collision (an impact with a moving object) and an allision (an impact with a stationary object).  
  • Accomplished high-schooler in Cleveland, Miss. is on track to graduate second in her class. Salutatorian! But in the lead-up to her senior year, a federal judge enforces a 50-year-old desegregation consent decree and orders Cleveland’s two high schools to consolidate. Following the consolidation (and much back-and-forth about credits on transcript), the would-be salutatorian ends up ranked third in her class, not second. A due process violation? Fifth Circuit: No. Students lack a due process interest in their class rank. 
  • A Play in One Act.  

Institute for Justice Employee 1: “Hey colleague, do you have time to summarize some cases for tomorrow’s Short Circuit?”  

IJ Employee 2: “Greetings friend. I’m on the road today, but I could do one or two in the morning.”  

IJ Employee 1: “Well, technically, this 104-page series of opinions from the en banc Fifth Circuit counts as ‘one case,’ so . . .” [chortles] 

IJ Employee 2: “Don’t be an energy vampire, Paul. But I’ll grant you this: Judge Elrod’s deep-dive dissent on whether the Fifth Amendment’s Due Process Clause has anything to do with personal jurisdiction? Looks like an interesting read.”  

(Ed.: Sam is just being a big baby, but he’s right about the Elrod dissent.) 

  • Friends, sometimes a super-cool decision comes down on a Friday after this humble newsletter has been sent off for proofreading. So it is with this super-cool decision from last Friday, in which the Sixth Circuit holds that a federal employee’s use of false testimony and forged documents to secure an indictment from a state grand jury does not fall into the “discretionary-function exception” to the Federal Tort Claims Act. We regret that friend of IJ @danielahorwitz was unjustly denied a week’s worth of forwarding this newsletter to friends and family. 
  • In which the Seventh Circuit reminds the owners of a Southern Illinois coal mine that uncaptured methane gas may be vacuum-siphoned off from adjoining land under the well-known doctrine of “I drink your milkshake.” 
  • Under an 1854 treaty, Indian lands within four Ojibwe Indian reservations in Wisconsin are immune from property taxes. But wait! Does the treaty still apply to lands which, though owned today by Ojibwe tribal members, were sold by past tribal owners to non-Indians before coming back into tribal ownership? Seventh Circuit: It surely does. 
  • Kansas City, Mo.’s affirmative action program for minority- and woman-owned businesses encourages their participation in city contracts and subcontracts. The City added a personal-net-worth limitation in 2018, limiting participation to those businesses whose owners’ net worth is $1.32 mil and below. Eighth Circuit: The program, as a whole, is probably constitutional, so the City needn’t provide separate evidence for the personal-net-worth limitation. 
  • When Arkansas uses the power of the state to kill people, it proceeds in several steps. First, it administers a sedative called midazolam. Then it checks to see if the person is conscious. If so, more sedative. Next, it paralyzes them with a drug called vecuronium bromide. Finally, it administers potassium chloride to stop the heart. Inmates scheduled to die: The sedative doesn’t suppress pain for a vast majority of people, meaning that remaining drugs the state uses to kill us will cause severe pain. Eighth Circuit: Scientists differ, so who are we to say whether the drugs violate the Eighth Amendment? Concurrence: The decision is correct under our precedent, but it’s an impossible bar. Prisoners must show a scientific consensus about the effect of drug dosages that will never ethically be tested on humans.  
  • Vermonter visiting California pulls up to a DUI checkpoint where he’s asked for his license. He declines and is arrested, despite his offer to take a breathalyzer. Ninth Circuit: The officers’ demand to see his license did not render the checkpoint unconstitutional.  
  • Ninth Circuit: Longtime green-card holder cannot be deported for dissuading his victims from reporting his crimes. Dissent: “My colleagues in the majority should be embarrassed. Perhaps not for their wrong decision today—to err is human, after all, even for those in robes. But they should be troubled by our court’s jaw-dropping, always-increasing, epic collection of immigration gaffes. The fact that they are not, but rather charge on heedlessly in this case, is itself perhaps a clue as to why the trainwreck continues.”  
  • Tenth Circuit: The plain-view exception is not a plain-feel exception. DEA agent conducted an illegal search when he felt around in a Greyhound passenger’s open backpack in an “exploratory manner.” The resulting “bundle” of meth should be suppressed, unless the district court finds on remand that defendant’s incriminating statements removed the taint of the illegal search. 
  • Can an arrestee (separate from a pre-trial detainee) bring an excessive force claim under the Fourteenth Amendment? Tenth Circuit: Sorry, he can’t. The Fourteenth Amendment just incorporated the Fourth Amendment. He needed to expressly bring his claim under the Fourth. Dissent: His complaint “needed only to plead factual allegations that would create a constitutional violation,” which he did. 
  • The Attorney General may allow otherwise-removable aliens to stay in the county if they’ve been in the U.S. for at least 10 years. Government: Right now, only two things can stop the clock on accruing those 10 years. Please add a third. Tenth Circuit: No. The statute is clear, and we won’t pretend it’s not. 
  • Oglethorpe County, Ga. man is taken hostage and forced, at gunpoint, to drive his loaded logging truck into a sea of seven officers. The officers opened fire, some with rifles, knowing the man was a hostage. The man sued. Eleventh Circuit: The officers reasonably believed they were at risk, and there’s no clearly established law saying officers can never shoot an innocent person. Qualified immunity granted. 
  • To be clear, in the Eleventh Circuit, murder and attempted murder are crimes of violence. 
  • While the government cannot keep you from divulging information learned before testifying at a grand jury, it can, without violating the Free Speech Clause, prohibit you from disclosing information you learned by virtue of being a grand jury witness. Or so says the Eleventh Circuit.  
  • And in en banc news, the Fifth Circuit will not reconsider its earlier ruling granting a preliminary injunction against a United Airlines policy that required all employees to either be vaccinated against COVID-19 or placed on indefinite unpaid leave. Judge Jerry Smith dissents from denial, raising concerns that the original panel issued its original opinion unpublished specifically to reduce the chances of an en banc grant. 

When Chasidy Decker found herself priced out of the roaring traditional real estate market in Boise, Idaho, she found a way to continue living in the area she calls home: She bought a beautiful tiny home she arranged to park on Meridian homeowner Robert Calacal’s private property for modest rent. But something unexpected got in the way of what should have been a win for everybody: the government. Meridian code enforcement threatened Chasidy and Robert with fines and jail time if she didn’t leave her only home. This week, Chasidy and Robert, represented by IJ, are challenging Meridian’s irrational and arbitrary ban on tiny homes on wheels for violating the Idaho Constitution. Click here to learn more.