Music theory, cell phone seizures, and gratuitous strip searches.

John Ross · September 22, 2023

New on the Short Circuit podcast: our seventh annual trip to the University of North Carolina for a preview of the Supreme Court’s upcoming term.   

  • Allegation: Sexagenarian with no criminal record is arrested while riding the bus, for code violations alleged to exist inside his home. (All charges are eventually dropped.) Though his bail has already been paid by the time he arrives at Chemung County, N.Y. jail, officers don’t release him for two hours, giving them time to perform an unnecessary strip search in retaliation for his girlfriend “making a real fuss.” District court: A two-hour delay does not shock the conscience. Second Circuit: The gratuitous strip search might. Case undismissed!
  • Ninth Amendment alert! Well, Ninth Amendment claim alert, at least. Foster care children sue New York authorities for violations of the First, Ninth, and Fourteenth Amendments. They move for class certification. District court: The proposed class lacks commonality and typicality. Second Circuit: Vacated! Try again.
  • Concerned that the state of Mississippi is throwing too many people in the nuthouse, the U.S. gov’t sues, alleging the state is violating the Americans with Disabilities Act by discriminating against every person in the state with serious mental illness by subjecting them to the risk of improper institutionalization. A federal district court agrees and enters a sweeping injunction dictating everything from the quantity of community-based mental health services to state budget allocations to the conduct of state chancery courts. Fifth Circuit: But the ADA doesn’t create a cause of action for the risk of discrimination, so that was a lot of wasted effort.
  • After a Black music theory professor gave a provocative speech accusing generations of scholars of racism for promoting the work of Heinrich Schenker—a Jewish music theorist who died in Austria in 1935—Professor Timothy Jackson of the University of North Texas struck back in an essay published in the Journal of Schenkerian Studies. Controversy ensued, and UNT removed Prof. Jackson from the journal. He sues the Board of Regents for First Amendment retaliation. Fifth Circuit: And his case can go forward. No sovereign immunity for the Regents.
  • Newly hired Texas correctional officer—a devout follower of the Hebrew Nation religion—shows up at the training academy with long hair and beard. He’s told that if he wants to keep the job, he needs to cut both, in conflict with a religious vow he has kept for more than two decades. He sues for religious discrimination. Texas Dept. of Criminal Justice: We can’t accommodate him because his beard could interfere with a gas mask seal, and prisoners could grab his long hair from behind. Fifth Circuit: But you allow short beards, which equally interfere with gas mask seals, and allow female guards to have long hair. So you’ll need to be more accommodating.
  • Detroit man languishes in prison for 34 years until gov’t discovers evidence casting significant doubt on his murder conviction. He’s released, and sues a (now-former) police officer who allegedly suppressed evidence of a witness who testified that a different Detroit man had burst into his home shortly after the shooting, with a rifle, and announced that he had “just shot a mother-fucker for starting some shit.” (Some federal courts may expurgate this sort of coarse language, but we at Short Circuit—like the Supreme Court—are made of sterner stuff.) Sixth Circuit (unpublished): No qualified immunity for the most part. Partial dissent: I’d say the officer gets no QI for any of his shenanigans.
  • Chicago school principal is fired after the school board concludes that, among other things, she had been ordering subordinates to inaccurately mark late students as tardy, rather than absent (thus skewing the school’s attendance data). The board also designates her “Do Not Hire” within the Chicago Public School system and twice publicly discloses the reasons for her firing. Now-former principal: The board’s stigmatizing statements about me deprived me of a liberty interest in the pursuit of my occupation. Seventh Circuit: No dice. Not a single die. This particular type of due-process claim requires you to show that the board’s statements made it “virtually impossible” for you to find work as a school administrator. And you spent but a few paltry months looking for new work in that field, and there’s no evidence that any difficulties you might have had were traceable to the board’s statements. (Also, a warning for those of us who find the use of the word “unfortunately” in legal briefs and court opinions to be like nails on a chalkboard: The word appears on page 14 of the panel’s opinion. Proceed with caution.)
  • Plaintiff pillow manufacturer: The feds seized my cell phone, and I want a preliminary injunction ordering them to give it back. District court (last November): Giving you that preliminary injunction would effectively end this whole case. No dice. Eighth Circuit (this week): That seems right—back then. Though we do have to wonder why, nine months later, they still have this guy’s phone. Remanded to find out!
  • Allegation: After unpleasant encounter with their new next-door neighbor, Huntington Beach, Calif. couple install a security camera, which captures the neighbor hurling racial epithets, making violent threats, and pouring bleach on their melaleuca tree. The new neighbor complains about the camera, and a state court issues three-year restraining orders all around—meaning that the couple has to surrender their firearms under California law. The couple waits two years, then files suit against the California AG to challenge the law. District court: Your challenge fails, because Rooker-Feldman. Ninth Circuit: No, the case is moot because the restraining order has expired during the appeal’s pendency. Dissent: It’s not moot, and Younger abstention is not appropriate.
  • And in en banc news the First Circuit will not reconsider its decision that a Puerto Rican labor law, passed by its legislature, was invalid because it did not comply with the fiscal plan adopted by the island commonwealth’s Financial Oversight and Management Board. Concurrence: I hear you, Puerto Ricans invoking John Locke and the principle of the consent of the governed. But being a territory kind of sucks, you know?
  • And in more en banc news, the Fifth Circuit will not reconsider its decision to suppress evidence found in a jacket tossed by defendant onto property owned by his mother during a traffic stop. (We discussed this case on the podcast.)
  • And in still more en banc news, the Sixth Circuit will not reconsider its decision that the First Step Act, which was intended to give some relief from mandatory minimum sentences, does not apply to re-sentencings where the original sentence was handed down before the First Step Act became effective but was not vacated until after the Act became effective. The en banc denial—which garners two dissentals—solidifies a circuit split, so keep an eye on this one.
  • And in further en banc news, the Eleventh Circuit will not reconsider its decision that new Florida voting rules, which prompted a district judge to put the state under preclearance review for a decade, are in fact mostly fine. And a dissental that says differently is “histrionic.”

Friends, the Fifth Amendment bars the gov’t from taking private property unless it is for a public use. Town hall or a school? Sure. A mall or condos? Opinions vary. But what about when the gov’t seizes land just to have it, for no particular reason except that in the future it may be put to some unspecified use? That’s what port authority officials in Freeport, Tex., are attempting to do with land owned for generations by the Marshall family, lovely people who—like every other American—don’t deserve this. So next week, IJ and the Marshalls will go to court to have the taking declared unconstitutional under the state or federal constitutions, get the Marshalls’ land back, and secure compensation for the homes the authority has bulldozed. Click here to learn more.