Jury experiments, assault weapons, and machine guns.

John Ross · November 10, 2023

Tomorrow is Veterans Day, and at IJ we want to thank those veterans who have joined with us to defend the Constitution in court after defending it in uniform, including current and former IJ clients Dr. Todd Bergland, Ryan Crownholm, Don Garrett, Vance Justice, Elmer Kilian, Stephen Lara, Zach Mallory, Jon McGlothian, Brian Moore, Jr., José Oliva, Tony Proctor, Octavius Raymond, Jim Saleet, Blaine Smith, Bob Smith, Marvin Smith, Joey Vanoni, Samuel Washington, and Edward Williams, and IJ Senior Attorney Michael Bindas. Thank you for your service! 

  • “The issue on appeal in this patent case” at the Federal Circuit “is the meaning of ‘a pH of 13 or higher.'” Which is surprising because that’s extremely basic. 
  • Did Rite Aid bargain to an “impasse” with the labor union before unilaterally moving employees to a private health care fund? D.C. Circuit: That’s “a question well suited to a panel of social psychologists,” not us, but we’ll give it our best shot and conclude “no.” Enough evidence showed Rite Aid walked away when there was still room to budge. Remand for proper remedy. 
  • O. Henry meets Kafka in the First Circuit, where an evenly divided en banc court affirms an 18-month upward variation in sentencing for a Puerto Rican man who pleaded guilty to illegally possessing a machine gun. Three judges wanted to vacate the guy’s sentence under two recent circuit precedents, while another three wanted to vacate those precedents. As a result, both the precedent and the seemingly irreconcilable sentence remain, leaving all six judges only half-satisfied and the defendant uniquely screwed. 
  • Business: Buy now, pay later, in four easy installments! Customer: I’ve been snookered! How was I to know that when my debit card was charged it might cause overdraft fees from my bank? Second Circuit: Not our problem, you clicked the button confirming you agreed to the payment terms, which included an arbitration clause, so to arbitration you must go. 
  • In 2018, the Supreme Court held that the First Amendment prevented forcing public-sector employees to pay union dues. Fearing this result, New Jersey passed a law saying employees could revoke authorization for union dues only during a 10-day window each year. As a result, one employee was stuck paying 10 months of dues against her will. She sues for a violation of her First Amendment rights. Can the union get out of the lawsuit (and avoid paying attorneys’ fees) just by sending her a check refunding the fees? Third Circuit: Nope, an unaccepted settlement offer does not moot the case. 
  • Coal-mining company is ordered to pay black lung benefits to a miner. But wait! The administrative law judges who decided the case had two layers of for-cause removal: they could be removed only for cause, and removal had to be approved by a board whose members could also be removed only for cause. Is that level of insulation consistent with Article II of the Constitution, which vests executive power only in “a President”? Fourth Circuit: Good question! But one we will not answer because there’s no evidence the removal protections had any effect on this case. 
  • Last week the U.S. Supreme Court agreed to consider the question: What is a “machinegun”? This week, the Fifth Circuit considers the even more basic question: What is a “firearm”? Fifth Circuit: Well, it’s definitely not any piece of metal or plastic that can be machined into a firearm part. The ATF’s contrary rule is unlawful. Unlikely Concurring Opinion Sentence: “Consider the ‘cakes that look like food’ Internet trend.” 
  • Someone breaks into an elderly woman’s apartment and brutally murders her. A man who confessed to the crime that night—while extremely intoxicated and possibly high on PCP—is prosecuted as the killer. The prosecution’s key theory is that he used a “twisty knife” to unscrew a porch window and enter the home. During deliberation, the jury asks for the knife and then uses it to take apart a cabinet door in the jury room. Satisfied by this experiment they sentence the man to death. Sixth Circuit (en banc): The Supreme Court has never weighed in on jury experiments specifically, so habeas relief is denied. Dissent: The Court has been extremely clear that juries can’t rely on extrinsic evidence, and the cabinet the jury experimented on—which was very different from the window—was not admitted evidence. 
  • Many Short Circuit readers will know the sordid history of “Blaine Amendments,” provisions in state constitutions targeted against “sectarian” schools, stemming from nineteenth century anti-Catholic bigotry. Michigan’s constitution contains a provision prohibiting any direct or indirect aid to any private school, not just “sectarian” ones. Plaintiffs challenge it on a “political process theory,” arguing that if they lobby to change other laws they need go only to the legislature, but for school choice programs they’d have to amend the state constitution as well. Sixth Circuit: The political process theory is probably viable only in racial discrimination cases. Dissent: Interesting conclusion, but the plaintiffs don’t have standing. 
  • Two Michigan men plead guilty to a murder-for-hire scheme, but reserve the right to challenge their prosecution under the Commerce Clause. “We’re two Michiganders who did everything in Michigan! How is that Interstate Commerce?” Sixth Circuit: You coordinated the hit using an instrumentality of interstate commerce, to wit, a cell phone. And even though those calls were made and received in Michigan, they were routed through out-of-state switches. So that’s two ways they get you! 
  • Michigan nursing student requests that her service dog, Pistol, be allowed to accompany her on hospital rounds. Uh oh! On the first day the dog causes allergic reactions in a patient and a fellow nurse. The hospital decides that the dog must be crated on a separate floor. The student completes her rotation without Pistol then sues the hospital under the ADA. Sixth Circuit: “To our knowledge, no circuit courts have had occasion to consider how a healthcare provider should reasonably accommodate a service animal under Title II of the ADA,” but everything here seemed reasonable, so case dismissed. 
  • Illinois recently effectively banned so-called “assault weapons” and certain high-capacity magazines. Is that ok under the Second Amendment? Seventh Circuit: “This presents a line-drawing problem.” On the one hand there’s handguns and on the other there’s “a nuclear weapon such as the now-retired M388 Davy Crockett system.” And we see what this law regulates as more on the M388 side of things. Dissent: I see a different history and tradition. 
  • People who purchase items in our twenty-first-century nationwide market may raise the occasional eyebrow at California-specific warning labels stating that the purchased item contains a chemical known to the state of California to cause cancer. Per California, spinach is known to cause cancer. And Disneyland. California: And the herbicide Roundup as well! Those guys need to wear our warning sticker too! Ninth Circuit: Actually, it’s hotly contested whether glyphosate (in Roundup) has anything to do with cancer, and requiring the companies to mark their products with your controversial warning fails intermediate First Amendment scrutiny. Dissent: While this was on appeal, California proposed some new warning language, so we should remand this (six-year-old) case to the district court to consider that new language. 
  • Laramie, Wyo. teacher claims he has a “special relationship” with an eighth-grade girl. She spends time in his classroom when she’s supposed to be somewhere else. They share the same soda. They go on an “overnight running trip” together. Can you see where this story is going? Tenth Circuit: Well, the school could have. The now-adult student’s Title IX claim might need to go to a jury. 
  • 1,773 small-claims cases? RICO allegations?? Florida??? You’d think this one would be pretty sexy. But it’s actually about whether a car insurer can benefit from a consumer-protection law covering windshield repair. The answer, after 25 pages, is that the Eleventh Circuit doesn’t know, so it certifies the question to the Florida Supreme Court. 
  • And in en banc news, the Ninth Circuit has amended—but will not reconsider—its earlier ruling that the First Amendment is simpatico with San Francisco’s requirement that political ads list not just the speaker’s major contributors, but also the speaker’s major contributors’ major contributors. Nine-judge dissental: We’re letting San Francisco commandeer political ads to an intrusive degree that exceeds what we’d tolerate for commercial advertising. Another dissental by the same nine judges: “A man may be known by the company he keeps, but not by the company that his company keeps, particularly when his company’s company isn’t also his company.” 

Everything’s bigger in Texas, and that includes constitutional violations. Take Harris County, where officials seize and forfeit cash and cars from people never convicted of a crime, routinely relying on nothing more than a boilerplate list of vague accusations and unverified claims of alerts from drug-sniffing dogs after the money is already seized. But this week IJ clients Ameal Woods and Jordan Davis scored an important victory in their class action against the county’s forfeiture machine when Harris County District Court Judge Robert Schaffer issued an order rejecting the county’s claim of immunity and allowing their constitutional challenge to proceed. Learn more here