Cooperative subjects, an unwanted text message, and hunting in a national forest.

John Ross · July 28, 2023

New on the Short Circuit podcast: Sexy cops and a circuit split over deference to the Sentencing Commission’s interpretation of its own rules.

  • In 2008, Usama bin Laden’s former personal assistant and public relations secretary was convicted by a military commission and sentenced to life in prison for conspiracy to commit war crimes, providing material support to terrorism, and soliciting others to commit war crimes. But two of the three convictions have since been vacated. Is a life sentence still appropriate? D.C. Circuit: Yes.
  • It’s said the wheels of justice grind slowly, and there are few federal agencies that have taken this to heart more than the Federal Election Commission. Thus it comes to pass that in the year of our Lord 2023 the D.C. Circuit affirms an FEC ruling that former Green Party presidential candidate Jill Stein has to pay back $175k to the Presidential Election Campaign Fund from her failed 2016 election bid.
  • Second Circuit: It is not clearly established that officers can’t point a gun at a non-threatening, compliant person during a traffic stop, so qualified immunity for this NYPD officer who pulled a gun on a school teacher to get him to pull over for making an illegal lane change. (IJ filed an amicus brief urging a different result.)
  • Do prison employees have a right to be free of suspicionless drug testing? District court: Indeed, they do. Fourth Circuit: Reversed. We can think of some reasons why the Fourth Amendment might permit such testing, but that’s neither here nor there because qualified immunity.
  • Online prediction market PredictIt allows people to make bets on the outcome of political events, which is the sort of “event contract” that normally requires one to be registered with the Commodities Futures Trading Commission. Since 2014, PredictIt has operated legally under a “no-action letter” from the CFTC, exempting PredictIt from these requirements. But in 2022, with little explanation, the CFTC rescinded the no-action letter and ordered PredictIt to shut down. PredictIt sued. Fifth Circuit: And because the district court is dragging its feet, we grant a preliminary injunction and reject the CFTC’s wishy-washy attempts to moot the case. (IJ filed an amicus brief urging this course of action.)
  • Fifth Circuit: It is clearly established that officers can’t suddenly use overwhelming force on non-threatening, compliant people, so the district court’s grant of qualified immunity to a McLennan County, Tex. jail officer who tased an allegedly cooperative detainee is reversed—notwithstanding that prior cases didn’t involve tasers. Dissent: Those prior cases are Fifth Circuit cases, which don’t clearly establish anything.  
  • Allegation: Rookie Cleveland police officer gets spooked when he sees a suspect holding a gun. The officer runs away while firing his own gun blindly behind him. Oops! He hits his field training officer, who survives but suffers nerve damage. She sues. Rookie (who was not disciplined for the shooting or lying about what happened): I didn’t intend to shoot her, so there was no seizure and therefore no Fourth Amendment violation. Sixth Circuit (unpublished): No qualified immunity.
  • Allegation: There are lots of signs that unresponsive woman with cerebral palsy is still alive (for instance, she’s breathing), but Southfield, Mich. EMTs declare her dead. An embalmer finds her gasping for air when he opens the body bag. She dies six weeks later. Sixth Circuit: Qualified immunity because there’s no clearly established right here. We decline to say whether there is a right, and so it shall remain unclear.
  • The Short Circuit editor wants this Seventh Circuit case summarized because it holds that an officer’s criticism of the Neillsville, Wisc. police chief was public employee speech for which the officer could be fired, not speech by a private citizen which would be protected by the First Amendment. But, honestly, your humble summarist is stuck on the allegation that the chief told a local bar owner to install a stripper pole and have the owner’s wife dance topless.
  • After Illinois man withdraws a plea that exposed him to a likely 35-year sentence for, among other things, distributing heroin, the government returns a superseding indictment including additional charges that expose him to a likely 60-year sentence. He goes to trial, is convicted, and is sentenced to 65 years’ imprisonment. But wait! Three weeks after the trial, it comes to light that the man’s defense lawyer is addicted to heroin and has struggled with substance abuse for quite some time. New defense counsel to district court: We’d like a new trial, please, or at least an evidentiary hearing on whether former counsel’s heroin addiction yielded such bottom-shelf performance as to violate the client’s Sixth Amendment right to effective counsel. District court: No. Two-thirds of a Seventh Circuit panel: Two things—(1) 25 years of the guy’s sentence are incorrect, so he needs a new sentencing; and (2) the district court needs to hold an evidentiary hearing on the whole heroin-addicted-defense-lawyer situation.
  • Canine officer is tracking burglars late at night in Cedar Rapids, Iowa. The dog finds, bites, and holds a juvenile suspect under a trailer. Although nearby police cars are broadcasting warnings, suspect says he couldn’t hear them so was bitten without warning, and he sues for excessive force. Qualified immunity? Eighth Circuit: Naw dawg, there are fact questions for the jury. Dissent: Woof, I can’t sniff out a clearly established right in our precedents.
  • California man who suffers paraplegia and requires a wheelchair sues a lighting and design store, alleging that he visited the store in November 2020 and the aisles were too narrow to comply with the Americans with Disabilities Act. Oh really? The store owner testifies that the store was open by appointment only at that point in the pandemic and no customer with a wheelchair ever entered the store, to which the plaintiff has no response. The district court, finding that the plaintiff had neither encountered nor had actual knowledge of an ADA violation, dismisses the case for lack of standing and orders the plaintiff to pay defendant’s attorneys’ fees. The plaintiff appeals the fee award. Ninth Circuit: The ADA’s fee-shifting provision does not apply to dismissals for lack of jurisdiction, so no fees (though they might have been available as sanctions under Rule 11).
  • In which the Ninth Circuit holds that you don’t have standing to sue the gov’t just because the government has (illegally) compiled a bunch of information about you.
  • The Crow Tribe gave much of its land to the U.S. in an 1868 treaty that provided the tribe the right to hunt on unoccupied federal lands. Does that provide an unrestricted right to hunt in the Bighorn National Forest? District court (1994): No, Wyoming’s admission as a state extinguished the tribe’s hunting rights. Tenth Circuit (1995): Indeed, or the forest is occupied land or Wyoming’s conservation interests were sufficient to restrict hunting. Supreme Court (2019): The tribe’s hunting right survived Wyoming’s statehood, and the forest isn’t occupied land. Wyoming (2020): The tribe is still barred. Tenth Circuit (2023): This might be one of those exceptional times where a party can obtain relief from an old judgment. The district court can and should consider whether the Tribe can obtain relief.
  • Eleventh Circuit (en banc): Receiving a single unwanted text message in violation of the Telephone Consumer Protection Act? That’s analogous enough to the common-law claim of intrusion upon seclusion to support Article III standing. Jordan and Newsom, JJ., concurring: Of late, we’ve been quite critical of what some might view as the Supreme Court’s increasingly confused pronouncements on Article III injury-in-fact (it’s true; they have!), and we’re thrilled our court is reaching the right result here.
  • In 2014, Florida woman who’d been suspected of drunk driving blows 0.000 on two breathalyzer tests in jail and posts bond. Nonetheless, she’s detained for a further eight hours per the Seminole County sheriff’s policy. Eleventh Circuit (2020): A jury must determine whether the policy violates the Fourth Amendment. Eleventh Circuit (2023, unpublished): A jury must determine whether the policy violates the Fourth Amendment.
  • And in en banc news, the Fifth Circuit will reconsider its opinion that, among other things, Elon Musk illegally tweeted threats to retaliate against Tesla employees to eliminate stock options if they voted to unionize.
  • And in more en banc news, the Eighth Circuit will not reconsider its opinion granting qualified immunity to a Springdale, Ark. officer who pointed a taser at a non-threatening, compliant mom—regrettably tossing aside the usual rule that disputed facts are viewed in a light most favorable to the plaintiff and dodging the question of whether prior cases about pointing a gun at or threatening to hit a compliant person clearly establish that pointing a taser at them is equally unconstitutional. (This is an IJ case.)
  • And in additional en banc news, the Ninth Circuit is going to consider whether the California State Bar is an arm of the state and thus protected by sovereign immunity from claims for damages by an immunocompromised law student forced to take the bar in person during the height of the pandemic. (Interestingly, the original three-judge panel heard oral argument but did not issue a decision.)  

In 2016, the feds fined Sun Valley Orchards, a fourth-generation family farm in southern New Jersey, over $550k for alleged violations of the H-2A migrant worker visa program, which Sun Valley was participating in for the first time. The bulk of the fine—$320k—was for failing to accurately describe the meal plan offered to workers in paperwork submitted to DOL; there wasn’t anything wrong with the actual meals or their cost. Instead of giving a warning, or a chance to correct the errors, blammo! Business-killing fine. After five years in a Dept. of Labor “court,” the fine was upheld and the family ultimately decided it had no choice but to close down the farm. And this week, a federal judge said he had no choice but to “defer” to the agency’s decision. But Article III and the Seventh Amendment protect the right to a real trial in a real court with a real judge and jury, instead of an agency court where the DOL is legislator, prosecutor, and judge. So on to the Third Circuit! Click here to learn more.