Two-faced federal prosecutors, a state prosecutor who needs to chill on Netflix, and an iconic naked baby.

John Ross · December 22, 2023

New on the Bound By Oath podcast: We head into a Pennsylvania Coal mine to unearth the origins of modern regulatory takings doctrine, resurface at Grand Central Terminal in New York City, and find ourselves in a bit of a fog.

New on the Short Circuit podcast: A pair of motions to suppress that shoot the moon.

  • Responding to a spike in reported incidents involving harassment, intimidation, and threats of violence against school administrators, board members, teachers, and staff, Attorney General Merrick Garland in 2021 issues a one-page memo to various units in the DOJ instructing staff to investigate the problem and discuss strategies. A group of parents sue, alleging that the gov’t is trying to “silence parents and other private citizens” who object to the “progressive” agenda. D.C. Circuit: Since the most violent activity alleged in your complaint is “clapping instead of using jazz hands,” we think it’s safe to assume the memo isn’t about you.
  • Boston’s selective public schools used to base admission on GPAs and a standardized test, which led to incongruent racial demographics. In the fall of 2020, the city adopted a new approach by which the first 20% of seats were filled by GPA, and the remaining 80% related to GPA and ZIP codes—students rank by GPA within their ZIP code, and ZIP codes go in order from lowest median household income to highest. First Circuit: This facially race-neutral plan comports with equal protection, even if it reduced the percentage of certain racial groups compared to the previous plan.
  • Fallout from Baltimore’s Gun Trace Task Force scandal continues. In this iteration, a man pleaded guilty to illegally possessing a gun that was found by dirty cop Daniel Hersl. He now seeks to withdraw his guilty plea, arguing that Hersl’s misconduct rendered his plea involuntary. Fourth Circuit: The feds’ “two-faced positions” here—first relying on the man’s grand-jury testimony that the dirty cops planted the gun and now insisting that the man illegally possessed it—”are clearly at odds with the notion of justice.” The man needs to be able to show that Hersl’s misconduct predated his guilty plea, which he can pursue in discovery.
  • Louisiana prison officials struggled to secure some violent juvenile offenders. Officials placed them in a building at Angola that used to house death row, promising that it was just for a short time and for a small group of kids, they wouldn’t isolate them for long periods of time, and they’d provide counseling, therapeutic treatment, and education. But officials broke “[v]irtually every promise” they made. The district court ordered the kids moved, and the officials complied and appealed. Fifth Circuit: While the appeal was pending, the injunction expired, so the case is moot.
  • There are several ways to register to vote in Texas, including by fax. In 2021, state legislators tweak the law, clarifying that if you register by fax you must subsequently mail in a form containing an original signature. The tweak also has the effect of making it illegal for a nonprofit to continue using a smartphone app to register voters (where users took a photo of their signature and uploaded it to the app). A violation of the Civil Rights Act of 1964? Texas: Only the gov’t can sue to enforce the voting rights provisions of the CRA! Fifth Circuit: Nope, the CRA allows for a private cause of action. The nonprofit loses, though, because the state has a strong interest in preventing fraud. Partial dissent: There isn’t a shred of evidence the requirement prevents fraud.  
  • If you’re going to read any decision this week about the voluntary-cessation doctrine and about the bad-faith exception to Younger abstention, then it should be this one, from the Fifth Circuit, affirming that the Tyler County, Tex. prosecutor acted in bad faith when he criminally charged Netflix for publicizing the film Cuties. For those who are fans of streaming services, controversial movies about young female dancers, and federal courts’ mercilessly back-handing—just absolutely rubble-bouncing—state officials who try to duck accountability for violating the U.S. Constitution, this one’s a must-read. (Ed note: And because truth, as they say, is stranger than fiction, Netflix’s now-enjoined prosecutor was himself once a partially clothed, gyrating performer on the silver screen, playing the (very-much-an-adult) “Spider” in 2003’s School of Rock.)
  • For a decade, the U.S. Army Corps of Engineers has prevented a Louisiana landowner from developing his land because it’s supposedly a wetland connected to “waters of the United States,” even though the land is mostly dry and miles away from any interstate navigable waters. Though the Corps’ shifting rationales have been undermined by Supreme Court decisions, it wants another crack at asserting federal jurisdiction over the land. Fifth Circuit: “Enough is enough.” Stop trying to make WOTUS happen. It’s not going to happen. Footnote coup de grâce: The Corps also shouldn’t harass this landowner about his other land lest it risk sanctions for bad-faith conduct.
  • Muslim inmate in Ohio alleges that prison officials failed to accommodate his observance of Ramadan while making comparable accommodations for other religions, and that officials retaliated against him when he exercised his First Amendment rights to complain about them. Sixth Circuit: The disparate treatment of religions is enough to state a violation of the Equal Protection Clause, and one of these retaliation claims should go forward too. Partial dissent: I think even more of these retaliation claims have legs.
  • Peoria, Ill. man is charged with drug crimes after his wife calls in a domestic-violence complaint and tells the police where to find him (which happens to be suspiciously near a bag of cocaine). Man: I would like to testify in my own defense at trial. District court: Of course, but don’t you dare say a word about all that domestic-violence stuff the jury just heard about. Man: But my entire defense is based on the theory that my wife framed me by faking a domestic-violence call to the police and planting the drugs near me. District court: I said don’t you dare mention the domestic violence. Man’s lawyer: It’s actually pretty vital to his defense. District court: I will literally put you in jail. Lawyer: Wait, … me? District court: Yes you. Federal prosecutor: Umm … we didn’t ask for any of this, and maybe pump the brakes, judge. District court: Not a single brake will be pumped. Seventh Circuit: Realistically, the man’s theory was fantastical hogwash, so the district court’s ruling couldn’t have changed the outcome of the case (a conviction). But we’ll take this opportunity to add that the judge really should have pumped those brakes and maybe chilled out on threatening to jail the guy’s lawyer, who “conducted himself honorably and professionally throughout the trial.”
  • Nirvana’s iconic 1991 album “Nevermind” gave us grunge-era classics including “Smells Like Teen Spirit,” “Come as You Are,” and “Lithium.” And its album cover, featuring a naked baby swimming underwater after a dollar bill on a fishhook is a powerful statement about . . . probably capitalism or something. Anyway, the now 32-year-old owner of the then-four-month-old penis depicted in the photo has sued Nirvana et al., alleging that the naked baby photo is child pornography. Ninth Circuit: And his claim is not barred by the statute of limitations. Every republication of the album cover restarts the clock. Of course, the plaintiff still has to prove that the photo meets the definition of child pornography, but that issue isn’t before us.
  • Police officer in Frederick, Okla. (pop. 4k) arrests man for lightly tapping him on the cheek. Though the officer knows the man’s mother lives three blocks away, he insists on towing the man’s vehicle (a tow truck). Yikes! An inventory search of the truck yields an M-16 rifle that the man, a felon, is not permitted to have. Suppress the evidence? District court: No. Tenth Circuit: Yes. In our circuit, courts must consider five factors to determine whether a community-caretaking impoundment is reasonable, and this flunks all five.  
  • Florida timeshare owners become “dissatisfied” with their purchases and allege breach of contract and fraudulent inducement. The contract requires they seek arbitration with the American Arbitration Association. And so they do. AAA: Oh, you bought a timeshare from those guys? Heh, they don’t comply with our rules, you need to go to court. Which the hapless owners do. Timeshare dealers: The owners need to arbitrate their claims. Order them to go back to the AAA. District court: Um, are you serious? This case is staying here. Eleventh Circuit: Affirmed.
  • Soul Quest Church of Mother Earth is a Christian syncretic religion that hosts retreats where you, too, can experience the sacramental power of ayahuasca, a plant containing the potent hallucinogen DMT. After being reminded by the DEA that DMT is prohibited under the Controlled Substances Act (CSA), Soul Quest applies for an exemption under the federal Religious Freedom Restoration Act (RFRA), but is denied. But was the denial under the CSA or RFRA? Eleventh Circuit: CSA, so they should have appealed the denial instead of filing a new case. Dissent: It was RFRA, so filing a new case was fine.
  • Facing prosecution in Georgia for unlawful efforts to overturn the 2020 election, former White House Chief of Staff Mark Meadows tries to remove his case to federal court. Eleventh Circuit: It’s called the federal-officer removal statute, not the former-federal-officer removal statute (and besides, meddling with election results wasn’t part of his government duties). Concurrence: Congress should extend the removal statute to former federal officials or we are in for some nightmare scenarios.
  • And in en banc news, by a vote of 8 to 7, the Fifth Circuit will not reconsider its decision (unpublished) that Section 230 of the Communications Decency Act immunized the owner of Snapchat from liability for design defects—such as weak age-verification requirements—that allegedly contributed to the sexual abuse of a minor by his teacher, who used Snapchat to send the student sexually explicit material.
  • And in more en banc news, the Ninth Circuit will reconsider its decision allowing Uber and Postmates to proceed with an equal protection challenge to California’s law A.B. 5, which expanded the category of workers who must be classified as employees instead of independent contractors. It seems that allowing a rational-basis claim to proceed to discovery may have been more than a majority of the court could stomach.   
  • And in amicus brief news, IJ offers the U.S. Supreme Court a friendly heads-up that pretty much everything the feds have to say about the voluntary-cessation doctrine (in FBI v. Fikre, which is to be argued on Jan. 8) is incorrect, ill-considered, and a roadmap for governments to strategically pick off civil-rights plaintiffs for wicked ends. If the Fifth Circuit’s Cuties decision is this week’s jurisdictional amuse-bouche, consider this your digestif.

Victory! The USDA has officially backed off a rule that barred IJ client Altimont Wilks from accepting federal SNAP payments from low-income customers at his corner grocery stores in Hagerstown and Frederick, Md. because of a 20-year-old drug conviction, for which Altimont had served his time. Though a federal judge previously ruled that the USDA could not apply its “business integrity rule” to people with drug and alcohol convictions, the agency had continued to do so anyway. Until last week. Moreover, testament to Altimont’s selflessness, he declined a previous settlement offer that would have helped him but allowed officials to keep enforcing the rule against others. Click here to learn more.

Victory! This week, a federal judge issued a preliminary injunction barring Indiana from censoring IJ client Lauren Richwine, a “death doula” who provides individualized planning and counseling for clients and their families about end-of-life options. “It was clear from the beginning of this lawsuit that the state’s regulations were about censoring speech, and not about protecting public health and safety,” said IJ Attorney Ben Field. “We’re glad the court has recognized the harm of these unconstitutional restrictions, and that it will allow Lauren to restart her business and serve her community.” Click here to learn more.

Victory! This week, a federal judge issued a permanent injunction barring North Carolina from censoring IJ client Wayne Nutt, a retired engineer threatened with criminal charges for giving expert testimony without an engineering license (pro bono and for a lawsuit about a stormwater drain blockage). “At its core, this case concerns the extent to which a law-abiding citizen may use his technical expertise to offer a dissenting perspective against the government,” the opinion says. “Stating that dissent required the speaker to use his expertise in several ways. He had to do some math. He had to apply recognized methodologies. He even had to write a report memorializing his work. Some of that work may plausibly be considered conduct. But it ends up providing him the basis to speak his mind.” Click here to learn more.

Intriguing development! This week, the Supreme Court called for a response to an IJ cert petition challenging New York’s censorship of IJ client Elizabeth Brokamp, an out-of-state therapist who wants to continue providing teletherapy to New York residents (as she was permitted to do during the pandemic). As experienced Supreme Court players, we know not to read too much into this (and are failing miserably in our attempts to play it cool).