Gross, degrading, and deeply concerning.

John Ross · January 5, 2024

New case: In North Carolina, it is illegal for state-certified paralegals to provide advice to residents on how to fill out standard, court-created forms to resolve common legal problems, leaving low- and moderate-income residents to navigate the legal system on their own. But legal advice (both free and paid) is speech. And if the state wants to ban speech, it has to show it has a good reason—one that doesn’t pale in comparison to the crisis in unmet legal needs.

  • If you’ve spent any time on the Washington, D.C. Metro, you’ve probably looked over the concrete barriers on the outer edges of the train platform, below which is a sharp drop into a dark, narrow trough. Perhaps, like your summarist, you’ve even shuddered at the thought of falling in. Well in October 2013—in an incident your summarist will now never stop thinking about—an intoxicated man did exactly that, broke his neck, asphyxiated, and wasn’t discovered for four days. His estate sues, and WMATA defends by arguing that when he fell over the ledge he ceased to be a passenger to whom they owed a duty to render aid and became a common paralyzed trespasser. D.C. Circuit: A novel question of District tort law that we certify to the District’s courts.
  • D.C. Circuit: Campaign-finance watchdogs hate this one simple trick for avoiding judicial review of FEC complaint dismissals.
  • Hokes Bluff, Ala. man enters the Capitol on Jan. 6 and leaves after about 13 minutes, having damaged no persons or property. He’s convicted of four misdemeanors. D.C. Circuit: Convictions affirmed, and no need to disturb his within-guidelines sentence of one year in prison and one year on supervised release.
  • Bridgewater, Mass. parent is prevented from videorecording a meeting with school officials. Rather, the meeting is audio recorded (with speakers identified). A First Amendment violation? First Circuit: No.
  • (In)famous Trump fixer-cum-critic Michael Cohen was out of prison on home-confinement as part of a COVID-related furlough in 2020, but when he refused to sign an agreement not to talk to the media or on social media about his anti-Trump book, he was sent back to prison and held in solitary confinement for 16 days. A federal judge found that the gov’t threw him back in prison because he was exercising his First Amendment rights to criticize the then-president, and ordered Cohen released. He then sued the federal officials responsible, seeking damages for several constitutional violations. Surely there are consequences in the Land of the Free for imprisoning somebody for lèse-majesté? Second Circuit (unpublished): Nope, Bivens is dead.
  • Man sues Logan, W.V. officer for brutalizing him during and after an arrest. In discovery, he asks whether the officer has any other lawsuits against him. Only during trial, after the plaintiff is done presenting his evidence, does he learn that there is another strikingly similar police-brutality lawsuit against the officer that wasn’t disclosed. Jury rules for the officer, and district court is unmoved by request for a new trial. Fourth Circuit: That’s pretty obviously discovery misconduct that prevented the plaintiff from fully presenting his case. New trial ordered.
  • Suspected of having ingested drugs, inmate in North Carolina prison is placed in a “dry cell” and required to execute three supervised bowel movements to uncover the suspected drugs. The conditions are suboptimal, leading to a situation the Fourth Circuit deems “gross, degrading, and deeply concerning.” Not a clearly established Eighth Amendment violation, though. But how about the inmate’s claim that he was later transferred to a worse prison in retaliation for filing grievances about the feces incident? Fourth Circuit: Yeah, seems like that could be a clearly established First Amendment violation. To trial that claim must go. Concurrence in the judgment: We should also just come out and say that the sh*tuation in the dry cell was an Eighth Amendment violation, so that it’s clearly established for the next time it happens.
  • Mississippi state legislators create a new court with jurisdiction over about nine square miles surrounding the state capitol in Jackson. Judges and prosecutors are to be appointed by state officials, rather than locally elected. An unconstitutional transfer of power from the black-majority Jackson electorate to white officials? Fifth Circuit: Plaintiffs’ arguments that they have been harmed, and thus have standing, “utterly fail,” are “unsupported by law or reason,” and have “no basis in fact.” Injunction denied.
  • Texas Department of Family and Protective Services personnel receive anonymous report that woman is exposing her four-year-old child to drugs and violence. When asked, woman denies the allegations. DFPS staff: This all still seems pretty sketchy, so we’re going to take your kid. And since it’s a Sunday, we’re not going to get a warrant. Fifth Circuit: Sketchy the situation may well have been, but to remove a child without a warrant you need exigent circumstances, not just sketchy ones. And viewing the facts in the mom’s favor, there are no such circumstances here. Nor is there a basis for qualified immunity (at least for the DFPS officials most directly involved in the incident). To trial the case must go. Partial dissent: The agency supervisor should be on the hook too.
  • The en banc Fifth Circuit simply could not be more irritated with the FDA and its “regulatory switcheroo,” its “volte face,” its “wild goose chase” regarding approval standards for flavored e-cigs. So it’s not surprising the court finds that the “surprise switcheroo”—which led the FDA to deny hundreds of thousands of applications submitted in reliance on those standards—was arbitrary and capricious. (We are compelled to observe, however, that the court’s description of the “wild goose chase” in Romeo and Juliet Act 2, sc. 4 overlooks significant changes in the meaning of that phrase over the intervening four centuries.)
  • Federal law demands that hospitals that receive Medicare reimbursements (read: nearly all) must stabilize anyone who enters their emergency room, regardless of their ability to pay. HHS contends that this law requires doctors to provide abortions, even if the state they’re in has outlawed abortion. Fifth Circuit: HHS’ guidance mandates abortion, which goes far beyond the scope of a law designed to combat hospitals turning away poor people in need. Injunction affirmed.
  • In Juarez, Mexico, hitmen open fire on the occupants of two cars suspected to be surveilling a Barrio Azteca gang lieutenant. In fact, the occupants—one of whom was a pregnant consulate employee—were leaving a child’s birthday party, and the kids witnessed their parents’ murders. Gunmen: There’s not enough connection to the U.S. for us to have been convicted of conspiracy to commit murder in a foreign country. Fifth Circuit: Oh, but there is. The gang’s transnational nature, coupled with evidence that the lieutenant ordered his men to involve the El Paso Aztecas, was sufficient to conclude that an overt act was committed here. (The court affirmed the lieutenant’s conviction long ago.)
  • California man drives to Reno every month to receive a stack of prescriptions for Oxycodone. Nevada maintains a database that tracks all prescriptions for controlled substances and shares signs of “inappropriate activity” with local law enforcement. Info from the database is used to get a warrant allowing the cops to plant a GPS device on his car for 90 days. This leads to a second warrant for 90 days, which leads to a wiretap warrant, which leads to nearly 15 years in prison. He argues the initial use of the state database violated the Fourth Amendment. Ninth Circuit: No reasonable expectation of privacy in a gov’t drug database. That horse left the barn 50 years ago. Concurrence: Whoa, that’s a mighty strong take. Can’t we just pull the old good-faith excuse?
  • Gentleman is caught crawling on the ground, thirty yards from the U.S.-Mexico border. When asked by a passing Border Patrol agent, he admits he’s an undocumented Mexican citizen. At the border station, following his Miranda warning, he confesses that he had been smuggled across the border. Conviction ensues. Man: But my Miranda waiver was ineffective because the agent also told me that the interview might be my only chance to try to claim asylum. Ninth Circuit: Sounds like you had a tough choice to make, but being faced with a “difficult trade-off” doesn’t vitiate your decision to talk.
  • After watching videos of white police shooting black men, black teen goes out and stabs “the first white guy he s[aw].” He’s taken to Muscogee County, Ga. jail, where, over a week later, he strangles a white cellmate to death. Eleventh Circuit (with dueling concurrences): A jury might think the jail intake officer should have recognized the danger. Denial of QI affirmed.
  • And in en banc news, the Ninth Circuit will not reconsider its decision that the federal Energy Policy and Conservation Act preempts a Berkeley, Calif. building code prohibiting the installation of natural gas piping in newly constructed buildings. Though Judge Friedland, in nearly a decade on the bench, has never before written or even joined a dissent from denial of rehearing en banc, she makes an exception here, joined by ten other judges. But on a court with 29 active circuit judges, it ain’t enough.
  • And in amicus brief news: IJ takes no position on whether the particular COVID-19 shutdown orders that will be before the Michigan Supreme Court next week violated federal or state constitutional protections against uncompensated takings, but we urge the Court to reject the lower court’s reasoning, under which there can be no takings liability as long as what the gov’t is doing is really important. Which is madness because the gov’t is always supposed to be doing something important if it’s taking property.
  • And in notice & comment news, IJ is urging the Fifth Circuit to reject a proposed rule that would require filers to disclose the use of generative AI in court filings. Among other objections, IJ notes that the proposed rule is likely to dissuade attorneys from adopting tools that could improve their writing and adds little to the court’s existing powers to punish irresponsible use of this emerging technology. If there’s to be a new rule, it is enough to require filers to certify that a human has verified the accuracy of all legal citations and arguments, without affirmatively outing those who use AI.

Now hear this: IJ’s Center for Judicial Engagement is hiring! That’s the very Center that produces Short Circuit. Oh yes. We’re looking for an attorney to join us in promoting the ideas of judicial engagement within the legal community and the wider public. Ability to summarize legal opinions tartly or tersely desired but not strictly required. Learn more here.