Legal phantoms, Frankenstein’s monster, and a wrong-door SWAT raid.

John Ross · February 2, 2024

New on the Short Circuit podcast: Two former Judge O’Scannlain clerks join the show to talk about a suspended progressive prosecutor and a preempted ban on gas stove piping.

  • Bangor, Me. hospital employs five psychologists: two men (paid $90 and $95 per hour), and three women (paid around $50 per hour). The disparity was not based on any differences in seniority, shifts worked, or merit increase system; the hospital contends it’s based on market factors, whereas one of the women says it’s plain old sex discrimination. Hospital: Maine law requires the woman prove that we intended to discriminate, which you should ask Maine’s high court about. First Circuit: We can figure it out ourselves, and there’s no such requirement. Liability plus treble damages affirmed. Dissent: No Maine court has construed this law, and the majority’s interpretation of it makes it a far more sweeping prohibition than the federal counterpart or most pay-equity statutes nationwide.
  • When an attorney trusts ChatGPT for case law, she ends up citing a legal phantom. Second Circuit: Sends her to the Grievance Panel with a lesson—AI may pass the Turing test, but it hasn’t passed the bar. (Summarized by ChatGPT.)
  • Male college student goes to Paris and has a disputed encounter with a female classmate who was undisputedly intoxicated. She claims sexual assault. He’s brought up on charges at a university discipline hearing and suspended. He later claims that she defamed him in an anonymous tweet. He then has another disputed encounter, this time stateside, with another female. Which leads to another discipline hearing and expulsion. Title IX violation? District court: Even taking the male student’s version of the facts as true, case dismissed. Second Circuit: No evidence of gender bias, so affirmed. Dissent: An inexplicable decision is in itself bias.
  • Buffalo. N.Y. cops driving at night without their headlights nearly hit two women crossing the street. An onlooker yells: “turn your lights on, asshole.” Instead, the officers stop, argue with the onlooker, and give him a ticket for making excessive noise. Onlooker sues, including under the First and Fourth Amendments. District court: You didn’t know they were cops when you yelled, so it’s not First Amendment-protected speech. Case dismissed. Second Circuit: Yelling at a dangerous driver to turn on his lights seems pretty free-speech-ey to us (Ed. note: and tame language by Empire State standards), and we’re dubious there was probable cause to treat that speech as unreasonable noise pollution. To a jury this must go.
  • Pullman abstention allows federal district courts to refrain from deciding federal claims until complicated state-law issues are resolved in state court. But, reminds the Fourth Circuit, district courts can’t do this without, like, identifying a state-law issue that would require abstention.
  • “‘Close'”—your summarist’s father sometimes opines—”is only good enough for horseshoes and hand grenades.” And, evidently, SWAT raids in Lancaster, Tex., where a SWAT team tasked with raiding 573 8th Street erroneously approached 583 8th Street before course-correcting and smash-bang-crashing through 593 8th Street. Fifth Circuit: The SWAT commander at least tried to identify the right house. Qualified immunity. Dissent: Did the commander not compare the wheelchair ramp in front of the 593 address with the obvious lack of a wheelchair ramp in his photo of the 573 address?
  • Missouri prisoner alleges that his arms and legs were twice shackled to a restraint bench in a “sitting hog tie” for hours, causing bleeding and pain, and making him urinate himself. He sues the prison warden, among others, for violating the Eighth Amendment. Eighth Circuit: The only allegations against the warden personally are that she allowed a policy of using restraint benches, and that is not unconstitutional on its own. Qualified immunity. Dissent: What’s unconstitutional isn’t restraint in the abstract, but that the warden allegedly allows unnecessary forceful restraint.
  • “When Reed blocked Felts on Twitter, he executed a final municipal policy in his area of the City’s business” is definitely a clause you can write in 2024, as the Eighth Circuit does here, but it’s not a clause that should make anybody involved feel good about their life choices.
  • Shortly after learning from a fellow officer that his girlfriend had filed a confidential complaint against him for domestic violence, Clovis, Calif. officer brutally sexually and physically assaults her. Can the girlfriend sue the fellow officer? Ninth Circuit: “The danger was obvious.” But not so obvious that every reasonable officer would have known not to divulge such reports to an abuser. Qualified immunity. Going forward, though, officers are now on notice not to do that. Concurrence: The “Frankenstein’s monster-like” state-created danger exception (to the normal rule that gov’t officials can’t be liable for violence by committed private parties) is very wrong and bad.
  • Oregon inmates sue the state’s governor and the director of the state’s health authority. Allegation: You prioritized vaccines for prison guards over vaccines for prison inmates, which violated the Cruel and Unusual Punishments Clause. Ninth Circuit: Under the Public Readiness and Emergency Preparedness Act, the governor and the health director have immunity from suits about their COVID-19 countermeasures.
  • Aurora, Colo. teen uses mobile app to advertise used car for sale, murders the couple who show up to buy it, posts selfies with their cash on social media. (He gets two life sentences.) Can the couple’s estates sue the app? Tenth Circuit: Dismissal affirmed.
  • And in en banc news, the Fifth Circuit will reconsider its decision refusing to dissolve a 1992 consent decree that reapportioned Louisiana’s supreme court districts to create a majority Black district. The state argues that the purposes of the 30-year-old decree have been fulfilled. The panel disagreed, holding—over a dissent—that the decree must remain in place until the “vestiges of past discrimination [have] been eliminated to the extent practicable.”
  • And in more en banc news, the Eighth Circuit will not reconsider its decision that Section 2 of the Voting Rights Act does not confer a private right of action. As the dissent to the original panel opinion pointed out, that’s a bit surprising considering that federal courts have resolved hundreds of such cases, including one that resulted in the 1992 consent decree at issue in the Fifth Circuit case mentioned in the previous summary, which made it all the way to the U.S. Supreme Court.
  • And in further en banc news, the Ninth Circuit will not reconsider its decision that a district court abused its discretion when it excluded plaintiff’s expert testimony on coerced confessions. Ten judges dissent from denial, arguing that the ruling creates a circuit split and a virtually per se rule that expert testimony be admitted in any lawsuit alleging coerced confession.
  • And in unusual en banc news, the Tenth Circuit has decided following panel argument that, rather than issue a panel opinion, it will sit en banc to decide in the first instance whether a pretrial detainee’s Sixth Amendment rights were violated when the United States Attorney’s Office obtained a recording of a phone conversation with his attorney (see trial court ruling here). Far from an isolated incident, the office collected more than 1,400 attorney-client communications over a 7-year period—spawning sprawling consolidated litigation—and was previously held in contempt for failing to cooperate with a special master’s investigation into the scandal.

Partial victory! Way back in 2017, Dottie Rivera sued Pottstown, Penn. over its rental-inspection ordinance, which allowed code enforcement officials to enter renters’ homes without any notice or any sort of individualized suspicion of a violation. They’d just show up at the door and force their way in. But last month, a state trial court finally ruled that the Pennsylvania Constitution requires notice and a hearing before the execution of a search warrant. Sadly, however, the court did not require officials to actually present any evidence of a violation when seeking such a warrant. To the appeals court! Click here to learn more.