Grains of sand, detachable pockets, and genuine obliviousness.

John Ross · November 18, 2022

In 2018, Mario Rosales was driving in Roswell, New Mexico, when he legally passed off-duty sheriff’s deputy David Bradshaw’s personal pickup truck. In a fit of road rage, Bradshaw followed Mario home, blocked him in the driveway, screamed at him, and ultimately pointed a gun at him. Bradshaw was fired and convicted of aggravated assault—but when Rosales sued him for violating his constitutional rights, a federal court granted Bradshaw qualified immunity. This week, IJ Attorney Marie Miller argued his case before the Tenth Circuit, and boy are we glad we weren’t the former deputy’s lawyers. 

  • Procedural persnickets, beware thine own petard! Two environmental groups complaining that the Nuclear Regulatory Commission didn’t prepare an environmental-impact statement before issuing a permit themselves failed to raise their objection properly. Which means, per the D.C. Circuit, that American Centrifuge is authorized to produce uranium enriched up to 20 percent. Politics aside, that’s just very cool as a matter of physics. 
  • Your editors don’t exactly hesitate to nerd out about the Constitution. We know “fire in a crowded theater” is claptrap, we worry about that loophole in the Vicinage Clause, and, heck, we even think the Fourteenth Amendment should better reflect the 1615 Ipswich Tailors’ Case. But even we had never seen a case about the Bankruptcy Clause’s “uniformity” requirement. (Relatedly, the Second Circuit holds that debtors who paid bankruptcy fees that were mandatory in their district but permissive in others are getting a partial refund.) 
  • Does the Second Amendment prevent disarmament of a person for an old nonviolent conviction? Third Circuit, conducting much historical analysis in the mode of Bruen: Not if it was the equivalent of a felony. So no hunting rifle for a man who was convicted of about $2,500 in welfare fraud in 1995. 
  • You’ve got to feel for the defendant LLC in this Fourth Circuit ruling. It was sued, counterclaimed, won, and was awarded damages and attorney’s fees only to have the whole thing vacated on appeal because one of 39 partners in the LP that owns the LP that owns the LLC that owns the defendant LLC lives in the same state as the plaintiff, destroying diversity of citizenship. But “[w]hether mutual contentment with the federal forum or genuine obliviousness brought the parties to this unfortunate juncture, this Court will not condone the exercise of jurisdiction where it did not truly exist.” 
  • After a pair of meth dealers entered into a federal cooperation agreement, they made quite a confession: They previously dumped the dead body of one of their customers into a bayou. The customer had skipped out of town after they bonded him out of jail—putting the bond money at risk—and they offered free drugs to anyone who could get him back. The incentive worked all too well, and the customer was killed in the ensuing retrieval effort. Fifth Circuit: While the cooperation agreement made promises of immunity, it did not apply to “crimes of violence.” Murder being a “crime of violence,” the district court appropriately considered this conduct at sentencing.   
  • Challengers to a Texas law criminalizing out-of-state abortions sought to subpoena testimony from Texas AG Ken Paxton, arguing it was necessary to reconcile his public statements threatening to enforce the law with his argument (in a pending motion to dismiss) that he lacked authority to take such enforcement action. The district court obliged, reasoning that “Paxton alone is capable of explaining his thoughts and statements.” Fifth Circuit: The district court had to decide the pending motion to dismiss before it could haul anyone in to testify, and, in any event, Paxton can’t be made to testify because the challengers could subpoena his subordinates instead. Mandamus granted.   
  • Voter-registration activists sue Tennessee over a law imposing a raft of new requirements. The trial court grants them a preliminary injunction, and they’re able to register new voters ahead of the 2020 election. Seven months later, the state repeals the enjoined provisions. State: So the victory was just temporary and we don’t have to pay plaintiffs’ attorneys’ fees. Sixth Circuit: The decision was final enough; pay up. Dissent: Plaintiffs won the battle but not the war—and only the war would entitle them to attorneys’ fees.  
  • Ohio man pleads guilty to illegally possessing a gun. But there’s no plea deal and nothing specifying the sentencing range—so the court isn’t bound by the parties’ calculations of the sentencing guidelines (21–27 months’ imprisonment per gov’t vs. the man’s attorney’s 12–18 months). Surprise! The court imposes a sentence of 57 months based on the Probation Office’s calculation of the guidelines. Sixth Circuit: The district court should’ve warned the man that it would decide his sentence irrespective of the parties’ calculations. Back down to the district court, which may resentence him to a max of 27 months or allow him to plead anew.  
  • Detainee at Cook County, Ill. jail files putative class action challenging lack of grab bars and other fixtures for disabled people. District court (September 2019): No class certification for you. Seventh Circuit (March 2020): This case seems like a pretty easy candidate for class certification. District court: Okay, class certified. But now decertified (September 2022) because some of the class members might not really be disabled. Seventh Circuit (November 2022) (and without requesting a response brief from the defendants): Seriously? Hasn’t the district court even heard of issue certification under Rule 23(c)(4)? We feel like we’re taking crazy pills! Reversed. Again. Let the class action proceed.  
  • In which the Eighth Circuit preliminarily enjoins the U.S. Sec’y of Education’s student-loan-forgiveness plan because (a) it is likely that the State of Missouri (one of the plaintiffs challenging the plan) has standing; (b) the legality of the plan “involve[s] substantial questions of law which remain to be resolved”; and (c) letting the plan go into effect would be a big deal while pausing it would not be. Also the preliminary injunction should be a nationwide one. 
  • Detachable pockets! DETACHABLE. POCKETS. They’re breathtaking. But are they entitled to trade-dress protection under the Lanham Act? Eighth Circuit: They are not. To be protectable, trade dress must be “nonfunctional.” And Pocket Plus’s pocket pouch’s trade dress—for example, its shape and the ability to open it—is all functional. 
  • After Arkansas woman’s home burns down, she asks her insurer for money. Insurer: But when you applied for the policy, you said you hadn’t had a foreclosure in the past five years, and in fact you’d received a “Notice of Default and Intention to Sell” from your mortgagee six days before. We’re rescinding your policy for that misrepresentation and paying you ::slides abacus beads:: precisely zero dollars and zero cents. Eighth Circuit: The policy application’s question about whether she “had a foreclosure” was ambiguous. Did it mean has any foreclosure proceeding ever been commenced? Or has any foreclosure sale taken place? If the former, then yeah, the woman made a misrepresentation. If the latter, she didn’t. So she gets a pass for giving a bad answer to your bad question. 
  • Just the Ninth Circuit breezily noting that, though the U.S. Constitution protects some fundamental rights, “the right to use and occupy [your] own property” isn’t among them.  
  • Philosophers may spend their days pondering precisely when several grains of sand become a “heap,” but this Ninth Circuit opinion reminds us that lawyers, as punishment for their sins, must spend their days pondering precisely when a device that automatically dials phone numbers becomes an “autodialer.” 
  • Pro tip from the Tenth Circuit: If you’re appealing from an order granting summary judgment, your appellate brief should, somewhere in there, use the phrase “summary judgment.” As it is, “Plaintiffs-Appellants’ appellate briefing is so woefully inadequate—especially in light of the complicated constitutional issues at issue here and the district court’s extensive analysis of them—that they have waived appellate review.” 
  • This Tenth Circuit opinion may try to distract you with its lurid facts, which include a vast conspiracy to frame an innocent man for murder, a shocking effort to suppress evidence about the actual confessed killer, and, at one point, a man’s attempts to have sex with a dog, but the really exciting part is the question of whether Parratt abstention applies to substantive due process claims.  
  • From the Eleventh Circuit comes the tale of a man who’s pulled over with a blood-alcohol level of .314 and whose day proceeds to get much, much worse. 
  • And in en banc news, the Fifth Circuit will not reconsider its decision affirming a 70-month sentence for a felon convicted of possessing two shotgun shells that he claimed both to have found and to believe were signal-gun flares. He may not have paid for them, but “the government introduced enough evidence that [the] shotgun shells traveled in interstate commerce, and that is all our caselaw requires to satisfy the interstate commerce element.”  
  • And in more en banc news, the Eighth Circuit will not reconsider its decision preliminarily enjoining an Arkansas law that prohibits healthcare professionals from providing “gender transition procedures” to any individual under 18. Five judges dissent, arguing that the panel opinion “draws a major piece of Arkansas legislation into doubt and recognizes what amounts to a new suspect class.” 
  • And in additional en banc news, the Tenth Circuit will not reconsider its decision that a religious school may not immediately appeal an interlocutory ruling denying summary judgment on the school’s “ministerial exception” defense after it fired a chaplain who gave a presentation on race and faith. Three judges dissent, arguing that the ministerial exception provides immunity from suit—not just immunity from liability—and therefore its denial must be immediately appealable. 
  • But in further en banc news, the Ninth Circuit will reconsider its decision affirming a land-exchange agreement between the Secretary of the Interior and an Alaska Native village corporation, which would allow the corporation to build a road through the Izembek National Wildlife Refuge to facilitate medical evacuations. 
  • And in extra, bonus en banc news, the Ninth Circuit will also reconsider its decision that a taxpayer may “file” a return—thus triggering the IRS’s three-year period for adjusting the taxpayer’s liability—by providing a copy of the return to an IRS official who asks for it, even if the return has not also been mailed to an IRS service center. 

Friends, with Thanksgiving fast approaching, we at Short Circuit are particularly thankful that, on Thursday, the West Virginia Supreme Court of Appeals affirmed the constitutionality of the state’s Hope Scholarship Program. This paves the way for families to use scholarships for private school tuition, therapies, and a wide variety of other education expenses. The 4-1 decision overturns a lower court injunction that halted the program in July. Following a constitutional challenge to the program in January, the Institute for Justice (IJ) intervened on behalf of Morgantown, West Virginia parent Katie Switzer and Albright, West Virginia parent Jennifer Compton to defend the program’s constitutionality under the West Virginia Constitution. Learn more about the case here