Fake Instagram accounts, offensive Facebook comments, and pro se parents.

John Ross · June 9, 2023

Friends, the Supreme Court has long held that the Fifth Amendment’s Just Compensation clause is “designed to bar Government from forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by the public as a whole.” And yet last year the Fifth Circuit ruled that the owners of a fourth-generation family farm in Texas must bear alone the burdens of a public highway project that caused catastrophic flooding. Farm Journal Magazine has the latest on a pending IJ cert petition.

  • Listen, my children, and you shall hear / of the First Circuit case of Paul Revere. / On the ninth day of June, in Short Circuit we type / of Takings Clause claims that were unripe / “Judgment affirmed,” the court said with a sneer.
  • New Jersey police tail a car seen at a gang hideout and eventually pull it over for a traffic violation. The cop recognizes a passenger in the back seat and opens the rear door to talk with him. Spying a bulge in the man’s jacket, the officer orders him out of the car, frisks him, and discovers a gun. The man, charged as a felon in possession, challenges the search. District court: Weird that the prosecutors aren’t arguing that cops can always order passengers out of the car during a traffic stop—which they can and would have been a winning argument—but they didn’t, so that argument is waived and the evidence is suppressed. Third Circuit (over a dissent): Yup. The court isn’t required to make the gov’t’s arguments for it.
  • A dozen Philadelphia police officers take to Facebook and post offensive comments about protestors, refugees, police brutality, the LGBTQ community, transgender people, Muslims, families with incarcerated fathers, and more. Following media coverage, several of the officers are disciplined. A First Amendment violation? District court: No. Third Circuit: Well, maybe, at least at the pleadings stage. The Pickering balancing test (the standard governing when public employees constitutionally can be disciplined for their speech) is pretty fact-intensive. On top of that, it’s not actually clear which of the officers’ (many, many) posts were the basis for the disciplinary proceedings. To discovery the case must go.
  • Pennsylvania man is convicted in 1995 of fraudulently obtaining food stamps to feed his family, for which he serves probation. Decades later, he discovers that although Pennsylvania considers the crime a misdemeanor, federal law considers it a felony for which he is categorically barred from owning a hunting rifle. He brings a Second Amendment challenge. Third Circuit (en banc, with multiple concurrences and dissents): And he wins! Looking to text and history, there’s no longstanding tradition of disarming people for this sort of noncapital offense.
  • Inmate: Federal prison officers in North Carolina violated the Fifth Amendment by putting me in solitary and firing me from my job (as lead mechanic at an optics factory) based on false allegations that I wasn’t given an opportunity to rebut. Fourth Circuit: Fifth Amendment? You can’t sue the feds for violating the Fifth Amendment (if you’re seeking damages).
  • In “law school hypos happening in real life” news, the Fifth Circuit holds that hitching a ride across the border in a car with 283 pounds of marijuana, is not, strictly speaking, possessing marijuana. Convictions vacated. Dissent: Two hundred. Eighty-three. Pounds.
  • A nonlawyer is allowed to represent herself in federal court, but can she represent her minor children? Fifth Circuit (over a partial dissent): Ten other circuits have said never, but the surprising answer is “sometimes.”
  • Michigan high school student creates a fake Instagram account impersonating his biology teacher. After sharing the log-in info with two of his classmates, the account quickly gets out of hand, with posts that were “graphic, harassing, and threatening.” He’s found out and receives a 10-day suspension. His dad sues, alleging the suspension for off-campus speech violates the First Amendment. Sixth Circuit: “Defendants reasonably forecasted that a fake Instagram account that impersonated a … teacher and directed sexual and violent posts at three … teachers and a student would substantially disrupt normal school proceedings.”
  • North Dakota plaintiffs challenge redistricting plan for state legislative districts. They subpoena documents and testimony from current and former members of the state legislature to develop evidence of alleged illicit motive, but the legislators object, citing legislative privilege. The district court allows the discovery, so the legislators seek mandamus. Eighth Circuit (over a dissent): Mandamus-ed!
  • In 1993, De Queen, Ark. woman is brutally murdered in her apartment while her two young children watch from a closet. A man is convicted, sentenced to death (twice due to a reversal). In the days before his scheduled execution, he seeks DNA testing—much improved since the 90s—on 26 pieces of evidence, which allegedly point to a perpetrator of a different race and would thus exonerate the condemned man. The state courts refuse, holding that a state law only permits such testing if it will “significantly advance” a claim of innocence, and determining that this evidence wouldn’t do that. Eighth Circuit: The man certainly can challenge the constitutionality of that law.
  • Circuit Split Watch! The Antiterrorism & Effective Death Penalty Act states that federal courts do not have jurisdiction to review habeas petitions filed by prisoners detained out of process “issued by a State court” unless the state prisoner first obtains a certificate of appealability, which isn’t easy to get. But does this limitation apply to decisions of the D.C. Superior Court? The Ninth Circuit—breaking with five circuits and over a dissent—holds that D.C. is not a state, so no.
  • Unruly detainee dies after Fulton County, Ga. jail officers tase and pepper spray, punch, dogpile on top of him, etc., etc. Officers: He ignored our orders, took an aggressive stance, and lunged toward an officer, who then tased him—and things escalated from there. Man’s estate: You tased him in the back, no one mentioned a lunge in their initial statements, and the officers were supposed to be wearing body cams. Eleventh Circuit: He was unruly so … QI all around. [The officers were charged with murder, but the indictments were tossed last fall.] 

New IJ case! Last year, IJ client Alek Schott was pulled over by a Bexar County, Tex. deputy, purportedly for drifting over a fog line (video shows he hadn’t). The deputy extended the stop to call a drug doggie to the scene, even though Alek did not act suspiciously. The doggie alerted (which video suggests the handler prompted), and deputies ransacked the truck, ultimately finding no contraband. An unreasonable search and seizure? Click here to learn more.

New IJ case! Regular readers of Short Circuit will remember that the Fifth Circuit made quite a stir when it held, in Jarkesy v. SEC, that the use of agency judges to impose monetary penalties violates the Seventh Amendment. A new IJ case brings that issue to the U.S. District Court for the District of Columbia, challenging the Department of Labor’s use of agency judges to impose over $55k in liability on a small landscaping business. According to IJ’s complaint, the Constitution guarantees Americans their day in court—not their day before an agency bureaucrat.

New IJ case! This April, Virginia game wardens in full camo suits trespassed on IJ client Josh Highlander’s land, swiping a game camera and scaring the bejeezus out of his wife and son, who caught one of them creeping around the woods near their house. It seems the wardens suspected Josh of illegally baiting part of his 30-acre property to attract game (he didn’t), but that makes no never mind: They didn’t have a warrant. And the Virginia Constitution could not be more plain that such searches are “grievous and oppressive.” Click here to learn more.