Jurisdictional bollards, standingripemootness, and a pretty good en banc grant.

John Ross · February 16, 2024

New on the Short Circuit podcast: The SCOTUS Ladies, Anastasia Boden and Elizabeth Slattery, join the panel to talk Humphrey’s Executor and a prosecutor who won’t chill on Netflix.

  • Dear readers, we ask you to decide for yourselves whether the firearms pun in the first sentence of this Third Circuit opinion was intended: “This case involves dueling firearm licensing statutes.” Whatever the caliber of the panel’s humor, the judges conclude that the less restrictive federal statute preempts the state statute, allowing certain retired law enforcement officers in New Jersey—both federal and state—to carry firearms in their retirement if they meet certain criteria.
  • Jimmy “Henchman” Rosemond once managed rap superstars like Salt-N-Pepa and Akon. He also ran a massive drug empire and, some say, shot Tupac in 1994, which ignited a deadly war between rappers on the coasts. (He contends that Tupac shot himself.) He’s Konvicted of murdering a 50 Cent associate and Locked Up for two life sentences. Seeking clemency, he enlists friends like Jim Brown to help. They allege that then-President Trump said on a phone call that he was going to commute the sentence with Freedom by Christmas 2020. The president executed 193 clemency warrants before his term expired, but Rosemond’s was not among them. Fourth Circuit: Writing a clemency warrant is not Very Necessary to make it effective, but he needs evidence that Trump, in fact, commuted the sentence instead of wanting to do so in the future.
  • In the standoff between Texas and the United States gov’t over Gov. Abbott’s attempts to reduce illegal border crossings by placing floating barriers in the Rio Grande near Eagle Pass, the en banc Fifth Circuit denies Texas’s emergency motion to stay trial proceedings while the court considers whether the Biden administration is entitled a preliminary injunction. Five judges would have mandamus-ed the district court to stop the impending trial on this “historic national security crisis at the border.”
  • Just a warning to those of you in the Sixth Circuit (residents of Kentucky, Michigan, Ohio, and Tennessee): If the woman you’ve been selling an ounce or two of meth to a couple times a month suddenly asks for a pound of it, she has definitely become a confidential informant and you will definitely be sentenced as the type of guy who routinely sells pounds of meth.
  • Chicago gentleman is jailed for seven years awaiting trial for murder and other assorted misdeeds. Tried at last, he’s acquitted of all charges. Yikes! Seventh Circuit: And in this follow-on Section 1983 action against the arresting officers, we hold that the gentleman is out of luck. Several witnesses to the murder identified him in a line-up, so the officers had probable cause to arrest. And while the seven-year pretrial lag time is perhaps odd, “the reason for that lengthy delay is neither discussed nor challenged in this case.”
  • Twenty-five years after the murder of his live-in girlfriend, Missouri man is arrested, convicted, and spends 11 years in prison before the Missouri Supreme Court sets aside his conviction. Turns out police neglected to mention in their probable-cause affidavit that the man did not own a shotgun (the murder weapon), a gunshot residue test on his hands a few hours after the murder was negative, and . . . oh yeah . . . fingerprints on the woman’s car belonged to a violent sex offender. Eighth Circuit: Denial of qualified immunity affirmed.
  • When two people share a home and they disagree on whether to consent to a search, does the Fourth Amendment allow the police to search? According to the Supreme Court, if the person denying consent was arrested on the front lawn and is being held off in a squad car, a search is OK. But if the consent-denier is instead standing in the doorway and unequivocally refusing consent, the search is not OK. What, though, if the police are holding the consent-denier just down the hall and he’s yelling not to let the police in? Ninth Circuit: That’s more like the doorway scenario, and the search is not OK.
  • In which Speech First, Inc. (a nationwide organization that advocates for free speech on college campuses) continues to bulldoze through jurisdictional bollards—this time securing a ruling from the Tenth Circuit that it can establish associational standing even if its members are identified by pseudonyms alone. (NB: One of the organization’s other Article III cases, out of the Fourth Circuit, has been relisted some half-dozen times at the Supreme Court.)
  • Man bombs the Olympics, abortion clinics, and a lesbian bar. He then flees to the mountains in North Carolina, where he remains a fugitive for five years. Once captured, he pleads guilty to avoid the death penalty, receives six life sentences plus 120 years. Man: My offenses are no longer crimes of violence, so I’m due for some new sentences. Eleventh Circuit: Nay. You waived the right to appeal your conviction and sentence and to collaterally attack your sentence as part of your plea deal.
  • It’s not often that a case is thrown out because (1) the plaintiffs lack standing, (2) the case is moot, and (3) the case is not ripe. Yet, the district court found that trifecta when an advocacy group and three individuals tried to challenge Georgia’s ban on most 18- to 20-year-olds obtaining permits to carry firearms. Eleventh Circuit: Reversed in part. Among other things, the plaintiffs did not have to apply for permits when they knew it was futile to try. The group and at least one of the individuals can move forward with their challenge. [Ed. Note: Compare with Dick Heller of Heller v. D.C. who, on the advice of a friend, made a futile application, allowing his case to continue and history to be made.]
  • And in marvelous en banc news, the Fifth Circuit will reconsider its ruling that a woman falsely convicted by a Midland County, Tex. prosecutor who was simultaneously working as a law clerk for the presiding judge cannot bring constitutional claims against the prosecutor and his supervisors. The original three-judge panel called the situation “utterly bonkers,” but held that circuit precedent required her to successfully petition for habeas corpus before bringing suit, even though she cannot so petition because she never went to jail. (This is an IJ case.)  
  • And in woeful en banc news, the Fifth Circuit will not reconsider its ruling that a SWAT raid that caused $60k in damages to an innocent woman’s home is not a taking that requires just compensation. Dissental: “By placing the onus on [plaintiff] to ground her right to compensation in a historical analogue—rather than requiring the City to establish some historically based exception to the compensation requirement—the panel flipped the burden that typically governs in cases involving individual rights.” (This is an IJ case, and we’re awfully miffed that the original panel rejected all of the City’s arguments and substituted their own, which we couldn’t brief.)
  • And in additional en banc news, the Fifth Circuit will not reconsider its ruling that when a trucking company was forced into bankruptcy by two civil lawsuits arising out of a fatal traffic accident, $1 million in insurance proceeds paid to one of the victims was property of the bankruptcy estate and must be returned to the pot so that the other victim’s estate gets its fair share.

New on the Bound By Oath podcast: In 1926, in the case of Euclid v. Ambler, the Supreme Court upheld zoning, giving elected officials and city planners vast, new, and largely unchecked power to tell people what they can and cannot do with their own private property. On this episode, the story of the lawsuit that changed everything for American property rights plus the personalities who made it happen. Featuring the esteemed professors Michael Allan Wolf and John Infranca.