Zoom jurors, community caretaking, and criticizing a colleague.

John Ross · January 6, 2023

The Institute for Justice is looking for passionate and entrepreneurial attorneys with 0-3 years of experience to join our headquarters office in Arlington, VA as Litigation Fellows in September 2024. The two-year fellowship is IJ’s preferred path to permanent employment for recent graduates or post-clerkship candidates with less than two years of experience. Outside the courtroom, fellows have the opportunity to do media writing and appearances, public speaking, grassroots activism and direct advocacy to policymakers and legislators. Interviews and offers will be on a rolling basis. For more information, visit www.ij.org/careers.

  • In this week’s Profile in Judicial Understatement, we bring you Judge Jennifer Walker Elrod of the Fifth Circuit, who concludes that it may indeed have been unlawful sexual discrimination to deny this Louisiana construction worker opportunities for advancement because, in the words of her general foreman, she has “t*** and an a**.” Summary judgment reversed.
  • Students at Knoxville, Tenn. public high school (located in a former train station) are permitted to eat and chew gum in some classes, which is excruciating for a student who suffers from misophonia. Disability discrimination? Sixth Circuit: Case undismissed.
  • The Supreme Court’s ruling in City of Austin v. Reagan National Advertising may be incoherent and ends-driven (our words), but it is the law and easily disposes of this First Amendment challenge to a Madison, Wisc. sign ordinance (the Seventh Circuit‘s words).
  • Arkansas parolee absconds; law enforcement get a tip he’s staying at a friend’s place and dealing drugs. They arrest him leaving her place and then search it without a warrant. Yikes! Plenty of contraband. Eighth Circuit: It’s an issue of first impression, but we hold that officers must have probable cause—rather than reasonable suspicion, a less-demanding standard—to believe a parolee is living at a residence to conduct a warrantless search. And an uncorroborated tip and being in the vicinity of a residence don’t cut it. Suppress the evidence.
  • University of Iowa law prof criticizes University of Iowa doctor for his expert testimony regarding a meat processor’s employee bathroom-break policies via complaints to the doctor’s boss, local newspaper articles, and elsewhere. Doctor: First Amendment violation. Amicus: A professor criticizing another professor is normal and should be encouraged. Eighth Circuit: The law prof’s speech might have been seen as authoritative given his employer, but that isn’t enough to transform his speech into state action, so no constitutional violation here.
  • We apologize that this entry does not contain a detailed breakdown of this fascinating Eighth Circuit ruling about the right to cross examine witnesses about their habitual drug use if the witnesses have made clear they will invoke their Fifth Amendment right against self-incrimination (on which the judges disagree), but we can’t stop thinking about the unanimous holding that firing a gun at someone you have carjacked and then driven to a second location to beat the crap out of and possibly kill does not count as discharging a firearm “during and in relation to” the carjacking.
  • A man in Washington state has the cash on him confiscated when he’s taken to jail. Upon release, the jail gives him his money back in the form of a pre-paid debit card with rapidly accruing fees. The man brings a class action saying the fees are illegal. The card-issuer: But using the card meant agreeing to our terms of service, which contained an arbitration clause. Courts can’t resolve the claims. Ninth Circuit: But we can resolve whether spending your own money means you agreed to those terms in the first place. No arbitration. 
  • If you want to learn a bit about how cities use zoning to force the disadvantaged out of town (in this case folks living in “sober living homes”) then you’ll learn much from this opinion where the Ninth Circuit allowed a disability lawsuit challenging a city licensing ordinance to go to trial.
  • Los Angeles police officer says that he fatally shot naked, mentally ill man in gym’s shower because, among other things, the man was repeatedly punching the officer’s partner in the head as she lay in a fetal position. District court: In post-incident photos, she is “unscathed.” Ninth Circuit (over a dissent): Discovery may shed more light on what actually happened, but in the meantime it is clearly established that officers must give warning—if practicable—before using deadly force. Denial of qualified immunity affirmed.
  • District court: In addition to the First Amendment problems, it would be an unconstitutional excessive fine to allow the feds to seize a RICO-convicted motorcycle gang’s trademarks (though vests, patches, armor, and weapons bearing those marks are fair game). Feds: Okay, what if we extinguish the gang’s rights to the marks but don’t transfer them to the gov’t? District court: Still no. Ninth Circuit (with pictures): Affirmed, but without reaching the constitutional issues; this isn’t permitted under RICO.
  • Fullerton, Calif. police suspect nonagenarian is the victim of elder abuse, but his wife declines to let them into the home to conduct a welfare check without a warrant. They break down the door and arrest her roughly, breaking her elbow even though she was unthreatening. District court: The alleged abuse was financial, not physical, and it’s inexplicable that the officers didn’t call other officers who were investigating those allegations. Ninth Circuit (unpublished): Denial of qualified immunity on the unlawful entry claim is reversed. The unreasonable seizure and excessive force claims survive, however.   
  • If you don’t want jurors in your criminal trial to participate by Zoom, don’t consent to their doing so. Per the Ninth Circuit, remote participation may conceivably cause problems, but they are not “structural” problems and are thus waivable.
  • Utah girls and their families sought separate girls high school football teams; local districts denied the request, pointing the girls toward co-ed football teams instead. Tenth Circuit (unpublished): The districts haven’t excluded the girls—who can play alongside boys on the same team—so there’s no sex discrimination rising to an equal-protection violation. But the district court needs to take another look at the Title IX claims.
  • Want to read 150 pages—and six different opinions—about public school transgender bathroom law? Well, the Eleventh Circuit (en banc) says this is your lucky day.
  • Insurance company: Your yacht insurance requires you to employ a full-time captain to care for your yacht, and you didn’t. Policy void! Yachtsman: But what does it even mean to be a “full-time” captain? One who works forty hours a week on my boat? One who stops by my boat occasionally but has a full-time job as a captain somewhere else? What if he just wears a hat all the time? Eleventh Circuit: Nice try, Socrates, but you didn’t hire a captain at all (though, serendipitously enough, we reverse on other grounds).
  • And in en banc news, the Ninth Circuit will not reconsider its decision to grant conditional habeas relief to a man who, at the age of 16, brutally murdered a friend’s mother and later entered a plea agreement calling for life imprisonment without the possibility of parole. Six judges dissent from denial, arguing that habeas violates the AEDPA because Supreme Court precedent clearly bars only mandatory life imprisonment without the possibility of parole for juvenile offenders, and does not extend to pleas in which the defendant agrees to that sentence.