Solar panels, bullet fragments, and private rights of action.

John Ross · November 24, 2023

New on the Short Circuit podcast: Texas drone privacy and an unparticular iCloud search.

  • In 2018 President Trump jacked up tariffs on solar panels to “protect the domestic solar panel industry.” Producers of a certain kind of solar panel—of the “bifacial” variety—petitioned for an exception. It was granted! But then denied. But then granted again! But then denied again. Court of International Trade: Sounds pretty sketch. Federal Circuit: Perhaps, but that kind of yo-yoing is perfectly fine under our laws.
  • First Circuit: Yeah, this pro se gent is technically a registered candidate for president, but that still doesn’t mean he has standing to try to get Donald Trump barred from the New Hampshire primary ballot on insurrectionist grounds.
  • Does the Eighth Amendment require giving prisoners medical care to remove bullets and bullet fragments lodged in their bodies? The Second Circuit doesn’t say, but it does hold that district courts should consider a plaintiff’s family-support obligations and should not just assume that prisons provide all the necessities of life when deciding whether to excuse poor inmates from prepayment of filing fees.
  • Baptist inmate in New York is excluded from all religious services for over five months after prison officials fail to update the “call-out list” for Protestant services. He sues, alleging a violation of his free exercise rights. Second Circuit: No qualified immunity, at least not right now. Concurrence: And what’s all this about requiring a “substantial” burden on religion to state a claim; we usually don’t let courts decide how important someone’s religious practice is.
  • Maryland not only requires a license to own a handgun, but also a license to carry one, and also an initial “handgun qualification license” before starting to try to own one. That initial license can take up to 30 days to obtain. Fourth Circuit: In olden times we didn’t have “qualification license” laws like these, so there shouldn’t be one now. Dissent: I don’t see an “infringe” here.
  • Fifth Circuit (unpublished, per curiam): It is unconstitutional excessive force to sic a police dog without warning on an unarmed, unthreatening suicidal person who is not suspected of a crime. But this was not clearly established, so these Conroe, Tex. officers are off the hook for unleashing a dog after a woman yanked her arm out of an officer’s grasp.
  • This Fifth Circuit ruling is remarkable, not so much for its holding that a Texas man had a qualified right to confront witnesses against him in a hearing to revoke his supervised release, but for Judge Ho’s concurring opinion, which is basically an amicus brief addressed to the Supreme Court’s pending ruling in the Second Amendment case United States v. Rahimi.
  • Galveston, Tex. officer shoots man in the back, killing him, as he fled on foot from a traffic stop with an unusual gait. It turns out the man had a handgun with a high-capacity magazine, but video evidence suggests the officer couldn’t see the gun. Fifth Circuit: Even if he couldn’t see the gun, the circumstances were suspicious enough that the officer could reasonably think he was in danger. Qualified immunity. Dissent: This case should go to a jury, which could reasonably conclude that somebody running from a low-level traffic stop didn’t present any danger.
  • Automotive-parts supplier Prevent USA brings antitrust suit against Volkswagen in the Eastern District of Texas. Volkswagen: Speaking as a famously German corporation, we think the town of Marshall, Tex. is pretty clearly a forum non conveniens. District court: So ein Pech! The Fifth Circuit in 1982 held that the forum non conveniens doctrine is categorically inapplicable to antitrust suits! Fifth Circuit: Himmel! But we corrected that mistake en banc five years later, in 1987! The district court is mandamused and directed to actually dig into the forum non conveniens analysis in the first instance.
  • During a traffic stop, a Tennessee officer asks, “Do you have your wallet?” The driver pulls it out of his pocket, and the officer says, “Let me see it for a moment.” The driver hands it over, and the officer finds stolen credit-card information. Sixth Circuit (reviewing for clear error; over a dissent): It wasn’t a command, he handed over the wallet voluntarily, no need to suppress the evidence. [Apropos of nothing, here is an article about the composition of the judiciary.]
  • Arkansas advocacy groups sue the state for diluting black votes in violation of Section 2 of the Voting Rights Act; they allege the state split black people into either hyper-concentrated districts or among multiple other districts where they’re outnumbered. Eighth Circuit: Private parties cannot sue to enforce Section 2; only the United States Attorney General can, and he’s declined to participate here. Dissent: Literally hundreds of Section 2 cases have been litigated by private parties. We should follow the extensive history, precedent, and implied Congressional approval to recognize a private right of action, rather than attempting to predict SCOTUS’s future decisions and work a major upheaval in the law.
  • Armed with an administrative warrant for a California man they suspect of being unlawfully present in the U.S., ICE officers pull the man over in his car and question him about his citizenship. He admits he’s illegally present, and they seek to deport him based on this admission. Should they have Mirandized the man? No need, says the Ninth Circuit. Miranda does not apply in civil immigration proceedings. Mendoza, J., concurring: But perhaps aliens should be advised of the rights they do have. Bress, J., concurring: Perhaps not.
  • Lyon County, Nev. officers responding to a domestic violence call confront a foul-mouthed, shirtless, unarmed man who runs towards them. Five shots later the man is dead. Qualified Immunity? Ninth Circuit: Yes, over a “respectful[] but emphatic[]” dissent.
  • We don’t want to get on a high horse about this, but if an appellate court—like, say, the Eleventh Circuit—holds oral argument on a case and then writes 79 pages of closely reasoned argument for why Bradenton, Fla.-based gangsters Nico, Boo Boo, and Big Man can go to jail, its opinion should be designated for publication.
  • And in en banc news, the Fifth Circuit will not reconsider its opinion that deploying a SWAT team to arrest somebody for making a zombie joke on Facebook violates the First and Fourth Amendments. En route to that result, the Fifth Circuit held that World War I-era precedents that allowed jailing pamphleteers critical of the gov’t are no longer good law, a result we can all be thankful for (especially those who made the mistake of sharing political hot takes at the Thanksgiving table yesterday). (This is an IJ case.)
  • And in more en banc news, the Sixth Circuit will reconsider its decision granting habeas relief to an Ohio man who has thrice been sentenced to death for a 1983 murder. Could it be that after more than 20 SCOTUS reversals of Sixth Circuit habeas grants in as many years, the circuit is finally learning its lesson?

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