River rides, purple robes, and aesthetic injuries.

John Ross · May 3, 2024

New on the Short Circuit podcast: borrowing cars and lousy neighbors.

  • New York’s legislature enacts legislation forcing internet service providers to offer broadband to low-income folks at below-market rates. ISPs: Preemption! District court: Indeed, field and conflict preemption. Second Circuit: Nope. Congress has left room for the states to regulate in this area and the FCC doesn’t have the power to preempt. Dissent: The state stipulated to a judgment. Why are we even here?
  • Man in Avery County, N.C. registers as a sex offender and communicates regularly with the sheriff to make sure he’s complying with registration requirements. Yikes! A deputy swears out a warrant and has him arrested—including for the totally made-up crime of leaving the state for 30 days—even though he was following the sheriff’s instructions. Charges are dropped, and man sues for Fourth Amendment violations. Officers: We got a warrant though. Fourth Circuit: Guys, you can’t tell someone what to do, and then when he does it arrest him for willfully violating the law. No qualified immunity.
  • Fourth Circuit (en banc): “Do healthcare plans that cover medically necessary treatments for certain diagnoses but bar coverage of those same medically necessary treatments for a diagnosis unique to transgender patients violate either the Equal Protection Clause or other provisions of federal law? We hold that they do, and therefore affirm the judgments of the district courts.” Dissent 2 of 3 (Wilkinson, J.): “I suppose that one day we shall exchange our robes of black for a purple more befitting our new regal state.”
  • Allegation: When woman frustrates repossession agent’s wrongful efforts to tow her car, a Harnett County, N.C. deputy is called to the scene. He orders her to exit the car, and it’s towed. Did the officer violate the Fourth Amendment? Fourth Circuit: We can’t say. Denial of qualified immunity reversed. [Eagle-eyed readers might notice that the court cites Saunders v. Sheriff of Brevard County, which was the subject of a lovingly crafted podcast documentary.]
  • A 20-year-old and 19-year-old try to purchase shotguns from licensed dealers in Texas. Their purchases went through but were delayed five days and 10 business days, respectively, due to federal background check protocols. But before then—in fact, the day they tried to buy the guns—they sue, claiming the delay violates the Second Amendment. Fifth Circuit: “This case presents the latest rendition of the question we face during the Bruen-Rahimi interregnum.” And the boys lose.
  • Ohio state trooper stops a car for speeding. The driver and passenger are traveling from Tampa, Fla. to Erie, Penn. in a rental car that’s due back in Tampa the following day. The trooper is suspicious of the driver’s travel plan and the passenger’s “heavy breathing,” so he calls a drug dog to sniff the car. Yikes! The dog alerts; contraband is discovered. Did the trooper have reasonable suspicion to prolong the stop and order a drug-dog sniff? Sixth Circuit: The driver’s answers and the passenger’s nervousness fit within “drug-courier travel patterns.” No violation. Concurrence/Dissent: The search was based on nothing more than an “ill-defined hunch,” and nervousness is a weak indicator of criminal activity.
  • Detroit police working on a federal task force spring man from custody to work as a confidential informant despite his history of violence, psychological instability, and noncompliance with court orders. Within months, the man murders six people. And he also shoots this plaintiff (who survived) 23 times after the plaintiff declined to give him money. Sixth Circuit (unpublished): Can’t sue over that unless you can show how the CI was a danger to you in particular. Case dismissed.
  • Columbus, Ohio police officers respond to a call about a potentially suicidal man. Officers arrive at the family’s home and see the man through a window; he says that he’ll put a gun away if the officers leave. Instead, the officers enter the house and one of them shoots the man five times with an M16 rifle. Officers do not administer first aid while waiting for paramedics to arrive. The man dies. Sixth Circuit: No qualified immunity.
  • Seventh Circuit: In which Frank Easterbrook retrieves a dusty, five-year-old petition for rehearing en banc from behind his desk (panel rehearing granted, amended opinion issued, petition for rehearing en banc denied).
  • During the period of unrest after George Floyd’s death, Champaign, Ill. man posts on Facebook calling on people to “RIOT” at a nearby mall. The next day he helps lead and actively participates in just such a riot and looting, and then takes credit for it. He’s charged and convicted under the federal Anti-Riot Act. Facebook provocateur: This statute is overbroad and violates the First Amendment. Seventh Circuit: We construed it narrowly fifty years ago to avoid constitutional problems, and there’s no need to reconsider our precedent or your four-year sentence. (But, over a dissent, the $1.7 mil restitution you were ordered to pay to 35 businesses needs a rethink.)
  • In which the Seventh Circuit solemnly absolves a Green Bay, Wisc.-area Costco from the heinous crime of having maybe not charged customers high enough gas prices five years ago.
  • Former detainee at Cook County, Ill. jail brings putative class action challenging the jail’s failure to have an oral surgeon on-site. Following denial of class certification, he settles for $7,500, while reserving the right to appeal the class-certification denial and to seek an incentive award for his role as named plaintiff. Seventh Circuit: That prospect of an incentive award is enough to secure his Article III standing (3-0), and the district court’s reasons for denying class certification were unsound (2-1). Everyone gets to chew on some more litigation on remand.
  • Wisconsin man is accidentally kept on probation for nearly a year beyond the statutory maximum, and during a few months of that excess period, he’s jailed for a probation violation. Yikes! Seventh Circuit (2-1): Yikes indeed. The two officials who failed to correct that mistake might well be liable for violating the man’s Eighth Amendment rights and, at least as of now, qualified immunity is not on the table for them. (The actual probation officers who enforced the probation terms are in the clear though.)
  • Bad week for preemption in telecommunications. The Ninth Circuit has similar thoughts to the Second Circuit, above, and affirms a denial for a preliminary injunction. This time though the matter concerns rates in California, not New York. Some people claim these are different states.
  • The Ninth Circuit has long required trial courts to make factual findings by clear and convincing evidence “when a sentencing factor has an extremely disproportionate effect on the sentence relative to the conviction.” Ninth Circuit (en banc): But no more. Preponderance of the evidence will suffice. Which is probably bad news for this guy whose sentence turns on whether the gun he was photographed holding was “capable of accepting a large capacity magazine.”
  • By a vote of 6-5, the Ninth Circuit (en banc) vacates a driver’s firearm conviction because the officers unreasonably searched his impounded truck. Majority: Warrantless inventory searches of impounded vehicles are okay—but not if officers search just to find crime. Here, the officers searched just to find crime. The evidence? They didn’t even list the personal property found during the inventory on their paperwork, as required by dep’t policy. Dissent: The majority’s “new hyper-technical rules for filling out forms” ignores precedent, ignores the fact that the officers complied with their inventory obligations in all material respects (like by taking photos of items in the truck), and lets “a six-time convicted felon” with “a loaded gun in his truck” run free.
  • San Jose, Calif. nightclub owner cancels a live show at the last minute upon discovering that the show’s promoter had taken payments and double-booked tables without her knowledge. The promoter (whom police are quick to note was unlicensed!) takes this poorly and opens fire into a crowd. Police order the nightclub closed for 30 days as a public nuisance. The owner challenges the nuisance ordinance under the First Amendment and the Due Process Clause. Ninth Circuit (over a dissent): No problems here.
  • Seattle police pull man over. Believing his car to be stolen, they order him out of the car, and at least six officers surround him with their guns drawn or pointed, frisk him, and open his locked trunk. (Check the video.) Oopsie! Wrong car—his wasn’t stolen. Ninth Circuit (unpublished): The officer who initiated the stop is liable for all Fourth Amendment claims, as there was no justification for pointing a gun at and frisking the driver here. But the other officers were entitled to rely on his report that the car was stolen, so they get qualified immunity.
  • Woman hears a neighbor shouting for help at Colorado Springs, Colo. motel, and sees a man who’d overdosed. She calls 911, stays on the phone with dispatch, and coaches the neighbor through CPR. When police arrive, she’s recording on her cellphone, answers a few questions, but refuses to say which room she lived in and refuses to leave. Police arrest her for failure to desist or disperse, and she’s found not guilty. She sues. Tenth Circuit: The officers lacked probable cause to arrest her—indeed, they did not even have arguable probable cause—so no qualified immunity.
  • Using the president’s authority to regulate the procurement and supply of “nonpersonal services,” the Department of Labor extends the minimum-wage requirements for federal contractors to federal permittees such as river-rafting guides, who do not supply any services to the gov’t at all. Tenth Circuit: Which seems totally fine to us. They may not supply anything to the gov’t, but they supply services just, y’know, generally. Dissent: A law that authorizes the president to impose any rules he thinks would be “efficient” on anybody who supplies any services seems like one of those delegation thingies Congress isn’t supposed to do. (Contrary to appearances, this is not an IJ case.)
  • Colorado charter school prohibits all jewelry except small earrings on girls. The mother of a kindergarten boy is told her son’s “small, blue stud earrings” violate the dress code. Unlawful sex discrimination? Tenth Circuit: Could be. The trial court should have applied intermediate scrutiny instead of a “comparable burdens” test borrowed from the Seventh Circuit. Reversed and remanded.
  • If Congressional aquatic legislation is why you get up in the morning, then this Eleventh Circuit shanty about whether a nonprofit’s “members suffer an aesthetic harm each time they view” a dock on Cumberland Island, Ga. and therefore have standing has you covered. National Environmental Policy Act? Check. Cumberland Island National Seashore Act? Check it. Rivers and Harbors Act of 1899? Check it again. Clean Water Act? Check it out. Dissent: No matter what, that dock isn’t going anywhere.
  • “The notion that ‘[n]o man is above the law and no man is below it’ is fundamental to our democratic republic’s continuing viability.” So says the Eleventh Circuit, affirming the conviction of a former Clayton County, Ga. sheriff for gratuitously putting detainees in a restraint chair for hours at a time, causing extreme pain and lasting injuries.
  • And in en banc news, the Third Circuit will not reconsider its opinion that there’s no need to count the votes of Pennsylvania mail-in voters who forget to write the date on the envelope before mailing their ballot in (a date which doesn’t matter for establishing whether it was mailed on time).  
  • And in amicus brief news, IJ is urging the Louisiana Supreme Court to remind government entities in the state that their duty to pay just compensation under the Fifth Amendment is no more “discretionary” than any of their other constitutional duties.

Victory! Friends, back in 2022, the Eleventh Circuit ruled that a $30k fine for tall grass is not unconstitutionally excessive nor did fining the homeowner, IJ client Jim Ficken, $500 per day without any notice violate due process. Which was a real kick in the teeth. But then: Some consolation. Dunedin, Fla. officials agreed to overhaul their code enforcement practices and dramatically reduced Jim’s fine—enough to avoid foreclosure. But then! The city demanded Jim pay $25k (later reduced to $10k) in attorney fees. Which was both incredibly meanspirited and legally baseless, so we sued them again. And last month, as part of a settlement agreement, the city dropped the demand. “While I am relieved that this nightmare is over, it’s a fight that should have never happened,” said Jim. “No one should have to endure two lawsuits and six years of uncertainty just to challenge such an unjust city ordinance. The emotional and financial toll it took to resolve is unimaginable. My only hope is that the city never does this to anyone again.” Click here to learn more.