Drag queen story hour, cooked books, and vaccine mandates.

John Ross · December 10, 2021

Does the Constitution apply to federal law enforcement officers? This week, we filed our reply brief in Mohamud v. Weyker urging the Supreme Court to resolve the circuit split on that question and to reverse an Eighth Circuit ruling that there is no constitutional remedy against a Special Deputy U.S. Marshal who told a bunch of lies and got our client, Hamdi Mohamud, who was then 16 years old, put in prison for about two years on bogus charges.

  • Is there any good reason why the United States Archivist shouldn’t turn over documents, communications, videos, etc. generated within the White House on January 6, 2021, to a congressional committee investigating the attack on the Capitol by domestic terrorists? D.C. Circuit: None that we can see.
  • Allegation: While private contractor that manages San Juan, P.R. public housing project was in court trying to evict the plaintiff, it also arranged for police to raid her apartment for illegal drugs and weapons, causing intense distress both to her and her autistic minor child. Can she sue the contractor as if it was a government actor, rather than a private actor, for constitutional violations? First Circuit: No.
  • Police, responding to a shots fired call, stop a speeding BMW, cuff both occupants, and put them in the squad car. They search the car on “officer safety” grounds, finding a magazine of ammunition (but no gun). Bad news for driver, who has a prior felony conviction. District court: The officers’ lack of any actual concern for their safety means they shouldn’t have tossed the Beemer. First Circuit: Doesn’t matter, it’s enough that a “reasonable officer” would have been concerned. And while we’re at it, let’s overrule circuit precedent saying otherwise.
  • The Hobbs Act requires challenges to certain kinds of administrative orders to be consolidated in one randomly chosen circuit court. In 2017, the D.C. Circuit, having lucked out, heard a suite of challenges to an FCC rule about sending faxes and invalidated the rule. Does the consolidated nature of the case mean that decision is binding on the rest of the circuit courts? Second Circuit: Yeah, that seems like the whole point of the statute. Dissent: The D.C. Circuit is perfectly swell, but it isn’t the boss of me.
  • The engineer of a petroleum ship allegedly kept false logs to obscure the ship’s possible dirty doings. The dastard! But wait! Any book-cooking he did would have taken place when the ship (and the books!) were in international waters, which means the landlubbers in the district court lack subject-matter jurisdiction, right? Third Circuit: That part where he then sailed the cooked books straight into Delaware Bay is enough. Conviction affirmed.
  • In 2010, leaking methane gas erupted at a Montcoal, W.V. coalmine, killing 29 miners. The feds charge the mine’s owner with willfully violating mine-safety standards so he could run more coal. He’s convicted. Whoops: the feds failed to turn over a slew of documents. Fourth Circuit: Shame on the feds, but the owner wouldn’t have won his case even if he’d had those documents. Conviction affirmed.
  • Interested in an “exotic and complicated” historical narrative about oil-rich land in Saudi Arabia? How about an arbitration that resulted in over $18 bil in awards and fees, criminal charges, and prison sentences? The Fifth Circuit will hook you up (while providing some jurisdictional catnip for you fed-courts cats out there).
  • There was once a circuit split on whether Congress’ ban on “machineguns” means the ATF has the authority to ban bump stocks. But the Sixth Circuit, sitting en banc, can’t make up its mind on whether Chevron deference applies, so the original panel decision is permanently vacated, the district court’s decision deferring to the ATF is affirmed, and the circuit split is no more. SCOTUS futures-markets forecast? Sell!
  • “Sachin Gupta drank too many alcoholic beverages on a business trip and found himself extremely intoxicated and struggling to use his key to open the lobby door of the Microtel Inn in Indianapolis. The problem, however, was not with the key card to the hotel, but with the fact that Gupta was, in fact, a guest at a different hotel.” So writes Judge Rovner of the Seventh Circuit, which holds that a jury should decide whether an officer should be held liable for causing the handcuffed Mr. Gupta to fall, resulting in a broken neck, and lying about it. Grant of qualified immunity reversed.
  • West Union, Iowa officer, heading to the scene of a “fight in progress” speeds through an intersection at 60 miles per hour with lights and sirens activated and t-bones a truck, killing the driver. His estate sues. District court: Summary judgment for the officer. No reasonable juror could find that he was driving recklessly. Eighth Circuit: Agreed. And the estate hasn’t offered a single “meaningful argument” against the district court’s reasoning, so “there is nothing for us to decide.”
  • Did Spokane, Wash. police violate clearly established law when, during a protest of the library’s “Drag Queen Story Hour,” they stopped a reporter from “engaging” with a counterprotestor who asked him, “Aren’t you the one who advocated for execution of gay people?” Ninth Circuit: No. Police could enforce protestor/counterprotestor zones as they saw necessary.
  • After the San Diego Unified School District enacted a vaccine mandate for students 16 and older, a 16-year-old student athlete challenged the mandate’s lack of a religious exemption. Ninth Circuit: The law is religiously neutral, so there’s no problem here. Dissent: It’s not religiously neutral; it contains non-religious exemptions for a variety of new students, along with medical exemptions. What makes those students less dangerous than this plaintiff?
  • If you vote by mail in Arizona, be sure to either sign the affidavit printed on the envelope or submit a signed replacement ballot by election day, because the Ninth Circuit holds this week that there’s no constitutional problem with the state tossing ballots without proper signatures, even though it allows other deficient ballots to be cured after election day.
  • Got some time on your hands this weekend? Well then how about a combined 282 pages of spicy Tenth Circuit goodness (over dissents) upholding the convictions of two Uzbekistani refugees who conspired to provide material support to the Islamic Jihad Union. FISA warrants, discovery delays, the Speedy Trial Act—what more could you ask for?
  • On November 5, 2021, the Secretary of Health and Human Services issued an interim rule that requires facilities that provide health care to Medicare and Medicaid beneficiaries to ensure that their staff—unless otherwise exempt—are fully vaccinated against COVID-19. A slew of states, including Florida, sued, leading to conflicting judgments. One of those, from Louisiana, purports to enjoin the rule’s enforcement nationwide, including in Florida. Eleventh Circuit: Soooo … it sounds like Florida got what it wanted and the case is moot? Florida: Absolutely not. You need to decide this. Eleventh Circuit: All right, but don’t say we didn’t warn you.
  • And in en banc news, the Ninth Circuit will reconsider its decision that a challenge to a now-rescinded California order barring in-person instruction at both public and private schools is not moot and that the order violated the fundamental rights of the private-school plaintiffs.

The Institute for Justice is now interviewing talented law students from across the country for the Dave Kennedy Fellowship, our summer fellowship program. Students are hosted in each of our six offices. The program offers law students an unparalleled professional opportunity to substantively contribute to active and future strategic litigation in both state and federal courts. During your summer with us, you would have the opportunity to work closely with IJ attorneys to develop litigation strategies and assist in the nuts and bolts of cutting-edge civil rights litigation, including propounding and responding to discovery requests, drafting motions and briefs, and preparing for hearings. The fellowship is a paid opportunity, offering $7,000 for the 10-week program, and generally runs from the last week of May through early August. Applications are due by January 14th and offers will be made on a rolling basis. For more information, visit www.ij.org/students.