Gag orders, sleeper berths, and a prosecutor’s “dodgy side hustle.”

John Ross · December 15, 2023

New on the Short Circuit podcast: a deranged prosecutor, a gag order, and what a jailer should have known.

  • Have you heard what Donald Trump has to say about “Deranged Prosecutor” Jack Smith? If not, you’ll still have the chance, because the D.C. Circuit has narrowed the gag order imposed on the former president in his criminal trial for conspiring to overturn the 2020 election. Trump can’t make public statements about witnesses regarding their testimony or statements about other prosecutorial or court staff—or their family members—if those statements are intended to materially interfere with the case, but he can slag on the Special Counsel all he wants.
  • Was it appropriate for the FBI to fire a veteran agent who (the agency claims) mishandled the investigation of now-convicted sex criminal and former USA Gymnastics Physician Larry Nassar, delaying the investigation by a year and leading to the abuse of 70 or more athletes during the delay? D.C. Circuit: We affirm the dismissal of the now-former agent’s claims.
  • Trucking company uses a team-driving model to transport goods across the country: two drivers swap time driving (maxing at 11 hours per day) and resting in the truck’s sleeping berth. When in the berth (which can be just two feet wide), they’re free to sleep, read, eat, or whatever, unless an emergency arises, in which case they might need to help the driver. Federal regs say that the company doesn’t have to pay for eight hours spent sleeping. But must it pay for the remaining hours truckers spend in the berth? First Circuit: Indeed, it must. The company benefits enormously from this model, and the truckers’ freedom is severely curtailed.
  • Second Circuit: Presidential immunity to civil lawsuits is waivable, especially if one waits three years after filing one’s answer in a defamation lawsuit to assert it.
  • Clarkstown, N.Y. officials: Sure, we slow-walked these land-use applications (allegedly out of hostility to plaintiff’s Hasidic Judaism) for so long that they lost the right to buy the building where they wanted to open a school, but how could they possibly sue us? We never even reached a final decision on the applications! Second Circuit: Pretty sure that’s the problem. Case un-dismissed!
  • Second Circuit (en banc): Former high school athletes have standing to challenge the Connecticut Interscholastic Athletic Conference’s policy of allowing transgender students to compete in women’s track and field. Case un-dismissed.
  • When an inmate in North Carolina is suicidal, jailers must take several commonsense protective steps. When a jail took none, the family of an inmate who committed suicide sued. Her jailer argued that, even if she had acted recklessly, she didn’t know for sure the inmate was suicidal. Fourth Circuit: The facts alleged show that you did, but we hold (creating a circuit split from the Tenth Circuit) that actual knowledge is no longer required. It’s enough to allege that you should have known. (Oh, and qualified immunity doesn’t apply to deliberate indifference claims in this circuit.)
  • Allegation: Midland County, Tex. woman who maintains her innocence declines multiple plea deals, is falsely convicted of cocaine possession. She doesn’t go to prison, but the conviction means she’s barred from working as a nurse, her preferred occupation. Years later, she learns that the presiding judge was employing a member of the prosecution as a law clerk, prosecuting by day and advising the judge by night. Fifth Circuit: Which is “utterly bonkers” and mocks “the very moral force underlying a just legal system.” But she can’t sue the county, the prosecutor, or his supervisor. She had to first file a habeas corpus action while she was incarcerated—even though she was never incarcerated. “This result is unseemly” and exacerbates an entrenched circuit split. (This is an IJ case.)  
  • When a new director took over Nashville’s school district in 2020, she initiated a major reorganization. What do you know, among those fired were a principal who had testified against the new director’s basketball-coach brother for assaulting a parent and mishandling funds, and an administrator whose son was a student in the district and who had complained twice about her son’s treatment by his teachers. (The treatment: “At school one day, a student teacher asked [plaintiff’s] son, who is African American, to read part of a speech titled, ‘Let’s Make a Slave.’ She then told the child to climb under his desk and ‘pretend he was a slave’ who was about to be ‘mailed’ in a box.”) Sixth Circuit (unpublished): There’s a lot of evidence that these firings were retaliation for First Amendment-protected activities and in violation of various federal and state laws, so the case should (largely) go to a jury.
  • Jones County, Iowa man—who is suspected of fencing stolen property—is using a trailer on the north side of the road. Defendant is another man living in a house on the south side of the road. Police have no evidence the two even know each other, let alone that stolen property is being stored in defendant’s home. Somehow they get a warrant anyway and defendant is charged with unlawful firearm possession. Police: Yeah, the warrant was pretty bogus, but we acted in good faith. I mean, defendant is shady, dude. Eighth Circuit: Um, that’s not enough.
  • Cop stops a driver in Dallas County, Iowa, for not using a turn signal. Cop notices everything about the driver screamed that he was a straight-from-central-casting meth head. He and his passenger aren’t allowed to go for 40 minutes while waiting for a drug dog. Who alerts, revealing drugs and guns. Was the stop too prolonged? Eighth Circuit (over a dissent): Okay by us. The dude had rotting teeth.
  • At the outset of the COVID-19 pandemic, Arizona’s governor issued a series of orders, which included banning on-premises dining at restaurants. A Scottsdale sushi-restaurant owner who was apparently flouting the prohibition is arrested. A Fourth Amendment violation? Ninth Circuit: No; even if the orders were a bit confusing, it was constitutionally reasonable for the arresting officer to think the restaurant owner was committing a misdemeanor. Dissent: If you actually read the orders, most of them applied only to businesses—not individuals—and the one that seems most likely to justify the arrest here required warnings that were never issued after it went into effect, so there are serious questions that require more development about what the law actually was at the time of the arrest.
  • Supreme Court (1980): Federal prison officials can be sued under the Eighth Amendment for deliberate indifference to an inmate’s serious medical needs—here, a fatal asthma attack involving inept treatment. Feds (2023): Which is completely different from this case where we denied care to an inmate suffering from Hepatitis C pursuant to a carefully considered policy. Ninth Circuit: Case un-dismissed. He’s not simply challenging the policy; he’s saying that you relied on outdated medical records, among other things, to improperly deny care.
  • Undercover agents buy a gun and some drugs from defendant in his motel room. He consents to their entry (but not their undercover-agentness or their use of concealed AV recording equipment). Defendant: This exceeded the “implied license” of what guests in my motel room are allowed to do. Ninth Circuit: All the agents were doing is recording what they were allowed to see and hear already. Get back to us when they enter with x-ray vision.
  • Poll watchers in Michigan during the 2020 election submitted affidavits that they saw irregularities at their polling stations. After those affidavits leaked out as part of Sidney Powell’s litigation to overturn the results of that election, defamation counsel for Dominion Voting Systems sent the poll watchers a letter ordering them to cease and desist defaming Dominion and to preserve all documents that may be relevant to a lawsuit. The poll watchers sue Dominion, alleging a variety of “intangible” injuries. Tenth Circuit (unpublished): So intangible, in fact, that they failed to establish standing.
  • Under the Supreme Court’s ruling in McDonnell Douglas Corp. v. Green (1973), a plaintiff alleging racial discrimination in employment who establishes a prima facie case is entitled to a rebuttable presumption that they were racially discriminated against. But, as the Eleventh Circuit is somewhat annoyed to remind us once again, a plaintiff can win so long as they have enough evidence to convince a jury, even if they don’t have enough to trigger the burden-shift. Concurrence (Newsom): Mea culpa, mea culpa, mea maxima culpa! I renounce McDonnell Douglas and embrace the “convincing mosaic” standard.
  • And in en banc news, the D.C. Circuit will not reconsider its ruling that it’s a “taking” for the feds to require book publishers to give free copies of any books with “copyrightable” material to the Library of Congress. (This is an IJ case.)
  • And in mild, unobjectionable horn-tooting news, we are pleased to note that the Supreme Court has taken up Chiaverini v. City of Napoleon; IJ filed the only amicus brief urging this course of action. The case asks: If police lie and arrest someone without probable cause for one thing but there might have been probable cause to arrest them for some wholly unrelated other thing, is the arrestee’s malicious-prosecution claim nonetheless barred? The Sixth Circuit (unpublished) said yes. (We recently discussed the case on the podcast—starting around 57:45—with Stanford Law’s Easha Anand, who is the lead on the petition and also our close, personal colleague.)  

Earlier this year, Brentwood, Mo. officials secretly declared a whole bunch of commercial properties “blighted,” so that they can be seized via eminent domain from owners who are unwilling to sell and then flipped to a favored developer. But none of the properties, including a fly-fishing store, a dance studio, and a meal-prep business, are even remotely blighted (which Missouri law defines as unsafe, insanitary, or a menace to the public). So this week, several business and property owners joined with IJ and filed suit in state court to challenge the bogus blight designation as a pretextual justification for seizing their livelihoods. Click here to learn more.