Long opinions, long captions, and valuable considerations.

John Ross · December 8, 2023

Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New cert petition: At summary judgment, judges are supposed to apply the law to undisputed facts, leaving factual disputes to be decided by a jury. But earlier this year, an Eighth Circuit panel usurped the jury’s role, said that dashcam video shows something that it does not show, and granted qualified immunity to an officer who pulled a taser on an innocent and compliant mom. Which is an outrage, and the Supreme Court should take a look.

  • Allegations: In a variety of objectionable ways (such as battery), FBI agents investigate/retaliate against a detainee wrongly suspected of participating in the murder of a federal corrections officer in Puerto Rico in 2013. He files suit under the Federal Tort Claims Act. Feds: Our guys get qualified immunity for some of these claims. First Circuit: We decline to be the first circuit to grant qualified immunity in the FTCA context, and some of his other claims were in fact timely filed. Case un-dismissed.
  • “This case involves a rhinestone-adorned piano, the now-deceased entertainer Liberace, a massive snowstorm, and a collapsed roof.” After reading this tantalizing opening sentence from the First Circuit, your editors were dismayed to learn that this case is actually about the statute of limitations for breach-of-bailment claims in Massachusetts and a contract-law dispute over what some vague emails meant. The Massachusetts common-law question we have instead is whether there’s a cause of action to remedy this judicial bait-and-switch.
  • A tale as old as time. Woman meets Man. Woman marries Man. They have a child. They divorce. Woman assumes full custody of the child. Man agrees to pay child support and buy a new car for Woman every three years until their child turns nineteen. Years later, Man is sued by the SEC for securities fraud. And for good measure, the SEC also sues Woman to disgorge the $134.5k Man spent buying her the car. Plus $35,304 in pre-judgment interest. SEC: You’re darn right we are. It’s not like she provided valuable consideration in exchange for that car. First Circuit: Um, sure seems like agreeing “to be fully responsible for every aspect of their son’s life for the next five to six years” counts as providing value in exchange for that car.
  • Friends, if you would like to read 297 pages about various challenges to New York’s regulations of firearms, the Second Circuit has you more than covered today. If you would like a summary of those pages, we regret to inform you that that’s too much to ask on a Friday morning.
  • Pennsylvania police officer stops a motorist for minor traffic violations. The officer first does a routine warrant check, which turns up nothing, but then spends an additional couple of minutes on a criminal-history check on the driver and passenger, discovering both have extensive criminal histories. He goes back to the car, orders the driver out, and frisks him, discovering a firearm. He arrests the driver, who argues that the stop should have ended after the warrant check. Third Circuit: This was fine. Concurrence: I’m compelled by precedent to agree, but I also think the cop would not have dug deeper into the criminal history of a white driver.
  • Pennsylvania man gets pulled over and scarfs down a bag of cocaine and fentanyl to hide it from police. Police—unconvinced by the man’s claim that the powdery substance around his mouth was left over from a candy cigarette—detain him. Ignoring the obvious danger to the man’s health and in violation of policy, police take the man to jail instead of the hospital. Two hours later he has a heart attack, cracks his head on the floor, and dies. Third Circuit (over a dissent): No qualified immunity.
  • Remember how we reported that the Fifth Circuit begrudgingly found that a Texan judicial redistricting plan violated the Voting Rights Act, based on prior Fifth Circuit precedent? But that the same panel called for en banc review? And then we reported just last week that the full circuit granted that en banc review? Well, this week that en banc court ruled 11-6 to stay the judgment in the case, thus keeping the challenged electoral boundaries for now (and, let’s face it, as the scrivener in the Book of Daniel might tell us, in the future as well). Concurrences (3 of them) to the stay grant: Purcell principle baby! Dissent: Among other things, why can’t we set oral argument here a bit sooner?
  • This summer, Texas officials installed a floating barrier in the Rio Grande to make it more difficult for immigrants to cross the river into Texas. The feds sue, arguing that the state lacks congressional approval to obstruct the navigable capacity of the river and is thus in violation of the Rivers and Harbors Appropriation Act of 1899. Texas: We have a right to defend ourselves from invasion, which exempts us from the law. Fifth Circuit: Preliminary injunction affirmed. The state’s (possibly bananas) defense would be best considered on a fully developed record. Dissent: This portion of the river isn’t navigable, so the law doesn’t apply.
  • Allegation: Caddo Parish, La. officer mistakenly believes that senior citizen, who is holding a phone, is using it to film the officer; the officer barges into the man’s home, roughs him up, handcuffs him, drags him out, and slams him onto the hood of a police cruiser. The man has a heart attack and dies. Officer: There are no cases that put an officer on notice that that’s unconstitutional. Fifth Circuit (unpublished, per curiam): There are no Supreme Court cases. But assuming mere circuit courts can clearly establish the law, qualified immunity denied.
  • Dominion Voting Systems sues Mike Lindell and My Pillow, Inc. for defamation after Lindell accuses the company of fixing the 2020 election. Lindell subpoenas 38 counties across the land, including Kent County, Mich. He asks for a bazillion documents and fails to work to narrow the request. Magistrate judge: Given Lindell’s admission he has no evidence of any voting irregularities in Kent County, subpoena quashed and sanctions awarded. Sixth Circuit (unpublished): Affirmed. Also, pro tip: Rule 26, which Lindell tries to use, concerns party discovery. “In contrast, Rule 45, titled ‘Subpoena,’ provides extensive guidance on subpoenas. See generally Fed. R. Civ. P. 45.”
  • As reflected by the caption in this case that is as long as the opinion, many lawful Indian-born workers in the U.S. have been waiting for over a decade to get an immigrant visa that would put them on a path to a green card. The State Department told them that it believed visas were available, but then when they applied it turned out the visas were all gone. They sued, saying this callous about-face violates immigration statutes. Ninth Circuit: We’re sympathetic, but unfortunately the byzantine immigration laws allow this.
  • To protest the prosecution of two ranchers who conducted an unauthorized burn of federal rangelands and also to protest federal land-management policies more generally, armed group occupies a federal wildlife refuge area in Oregon for about a month in 2016. Four defendants who opted for trial are convicted and receive sentences ranging from 12 to 21 months. Ninth Circuit (160 pages): Convictions and sentences affirmed.
  • Just as your summarist has never really bothered to figure out what cryptocurrency is all about, nor will he bother to figure out what this Ninth Circuit case involving the cryptocurrency exchange Coinbase is all about. The summary says it reverses a district court’s denial of a motion to compel arbitration. Beyond that, you nerds are on your own.
  • “For nearly forty years, the California State Bar has enjoyed Eleventh Amendment immunity in federal court,” a proposition that the en banc Ninth Circuit reaffirms and terrifyingly supports with a citation to a case decided in 1985. Your summarist is shook.
  • Utah corrections officer, born with missing fingers on each hand, requests an accommodation that would allow him to carry a Springfield 1911 handgun instead of a Glock. Prison: The ability to comfortably fire a Glock, specifically, is an essential part of this job. Tenth Circuit: Really? Case un-dismissed.
  • Utah man: My federal probation officer perjured himself to get me thrown back in prison! Which is unconstitutional. Tenth Circuit (unpublished): Did you say federal officer? Case dismissed.

Big news! Today, we launched Season 3 of Bound By Oath, a lovingly-crafted, documentary-style legal history podcast series. If you like law or history or freedom itself, you will not want to miss it. On Episode 1, we head into the woods, retrace one of constitutional history’s most ignominious warrantless searches, and wind up finding the lost essence of the Fourth Amendment. That is, we examine a century-old, misbegotten legal rule called the open fields doctrine. Click here to learn more or look for Bound By Oath by IJ in any podcast widget.