Enjoy the latest edition of Short Circuit, a weekly feature written by a group at the Institute for Justice.
New on the Short Circuit Podcast: How to ask the Capitol Police for duty. Also – parent consultation! — Some spicy language from the 7th Circuit, the nation’s first reported expletive-dropping judicial opinion, and a shout-out to Adeline, Countess of Cardigan.
- Postal union members wanted to run for leadership and advertise in the union magazine, but the union refused, saying campaign ads could only appear in special election issues. Union members sued, claiming federal law required the union to publish his ad, which the union claimed violated the First Amendment. DC Circuit: No First Amendment issue here; editorial control belongs to the news media, not the unions. Objection: The law requires unions to “distribute” messages, not publish them in magazines.
- Perhaps not the most high-profile criminal case involving former President Donald Trump this week, the D.C. Circuit affirmed an unusually long 10-year prison sentence for a former police officer involved in the Jan. 6 attack on Capitol Police. reflecting the punishment imposed during the trial and the fact that he was wearing body armor during the attack).
- Sometimes courts go out of their way to praise the quality of counsel on both sides’ arguments, but in this case the D.C. Circuit really wanted to highlight the flaws in both sides’ arguments.
- The case raises a question familiar to personal injury lawyers: Did you jump in my car or did I hit you? But since the car was a Buffalo, New York, police cruiser, and the collision resulted in the struck pedestrian and his son being allegedly unlawfully impounded, we also have a qualified immunity conundrum. 2nd Circuit (unpublished): All key facts are in dispute, so we do not have authority to decide before trial whether police officers are immune.
- The case went to the Supreme Court, went back to the District Court, and is now back to the Court of Appeal after the District Court granted summary judgment to a police officer defendant on a malicious prosecution charge. 2nd Circuit (unpublished): It should have gone back to the district court because it was wrong to conclude that a person could be lawfully arrested simply for asserting his Fourth Amendment rights against a warrantless search. (Furthermore, because qualified immunity was not asserted in district court, that immunity was lost.)
- Baby Ethan was healthy for the first 30 months of his life. But he then rapidly regressed, developing seizures and mitochondrial dysfunction, and several doctors diagnosed him with heavy metal poisoning. A few years after his diagnosis, a House committee released a report showing that certain baby foods, including the brand Ethan almost exclusively ate (Earth’s Best Organic), contained elevated levels of toxic heavy metals. Ethan’s parents sued the manufacturer and Whole Foods in state court, but the manufacturer moved the case to federal court on diversity grounds. 5th Circuit: It shouldn’t have been done. Their accusations against Whole Foods — that it was untrue that it sold high-quality products without harmful ingredients — were legitimate, made the grocer a proper defendant and defeated diversity. Back to the Texas courts.
- In the years before World War II, Jewish art collector Max Emden was forced to sell three paintings by Bernardo Bellotto, including a copy of Bellotto’s own painting Pirna Market. The purpose of this painting is guide museumand another copy of Pirna Market, the painting was painted by an unknown artist other than Bellotto and was owned by an art dealer who also fled the Nazis. The Monuments Men recovered the two pieces and returned the Bellotto to the non-Bellotto owner through a Dutch government foundation that mistakenly requested the Bellotto instead of a copy. “Bellotto” is now on display at the Museum of Fine Arts in Houston, and despite efforts by Emden’s heirs to recover the painting, the museum insists it has no obligation to return it. 5th Circuit: Alas, any evaluation of this case would require us to question the Dutch government’s conduct, which we cannot do under the act of state doctrine.
- Louisiana parishes are suing oil companies and officials over a variety of state law claims. OFFICIAL: Hey, we can take these cases to federal court because there are some World War II-era contracts. 5th Circuit (2021): Well, most claims don’t, but maybe some? 5th Circuit (2022): Well, now that’s all negative. Some similar officials whose cases had been stayed subsequently appealed. Official: This time is different. 5th Circuit (2024): Yes, still not. Objection: This is the greatest generation we’re talking about.
- Ohioans want to put a motion on the ballot to amend the state’s constitution to eliminate qualified immunity, immunity from prosecution, sovereign immunity and all other types of immunity. But the Ohio attorney general has refused to certify the proposed amendment six times, citing various reasons why the amendment summary was not “fair and truthful.” Ohioans got fed up and sued. Sixth Circuit (over objection): Their motion for preliminary injunction was granted. The AG must certify the initiative so that its sponsors can begin collecting signatures.
- When a newly constructed bridge flooded a local farm in Lawrence County, Arkansas, the 8th Circuit ruled that the trial court was right to have the jury decide the case based on the rental value of the land rather than the cash value of the specific destroyed crops, but perhaps should re- Consider whether farmers could also get an injunction to remove bridges.
- In a 1981 unemployment compensation case, the Supreme Court said that religious beliefs need not be “acceptable, logical, consistent, or understandable to others” when considering accommodations for people of faith. It’s a useful precedent for the 8th Circuit not to dismiss a lawsuit brought by former Mayo Clinic employees in Minnesota who claim they were fired for refusing to get a coronavirus shot or submit to weekly coronavirus tests.
- Allowing juries to see the shackles of a criminal defendant is (the Supreme Court has said) inherently prejudicial. But what about this defendant’s ankle monitor? 9th Circuit: That’s different. This is not inherently biased. Even assuming any juror understood that the beeps came from the ankle monitor, the defendant did not show that she was actually biased. Agreed: The perceptible ankle monitor feels like a shackle to me, so if the jury could actually perceivable it, I’d be willing to say it would be inherently prejudicial. But there’s no evidence any juror knew the defendant was wearing it here.
- A Guatemalan-Nicaraguan citizen who has been deported from the United States six times challenges his conviction for illegal reentry, arguing that the criminal ban on illegal reentry was enacted out of discriminatory animus and disproportionately affects Latinos. Tenth Circuit: We join four other circuits in rejecting this argument.
- Does “landscaping” include installing an underground trampoline? The Eleventh Circuit said that was not the case in this case because the landscaper told his insurance company that his landscaping would not involve any playground equipment. This wouldn’t be all that interesting, except that Judge Newsom wrote the most Newsomian consensus ever, in which he talked to us (and himself) about the prospects and dangers of using ChatGPT to discern simple meaning.
- In full news, the Ninth Circuit won’t reconsider its opinion that you don’t have standing to sue the government, and not just because the government (illegally) collected a bunch of information about you.
- In state court news, the Georgia Supreme Court says yes, seriously, a civil forfeiture complaint needs to allege the essential elements of the crime that serves as the basis for the forfeiture. in a footnote with caroline products, the court also thanked the IJ for its amicus brief. You’re welcome friend. You are welcome.
- In news of denial, we are saddened that the Supreme Court will not take up the matter Poll Rice v. MazolfThere was no disturbance in the Eighth Circuit’s ruling, which ignored the usual rule that factual disputes are resolved by a jury and found that an officer did not violate the Constitution when he pointed a Taser at a “calm and non-threatening” bystander. According to the panel’s majority opinion, the officer could reasonably have perceived the threat because, in response to the officer’s command to “back up,” the bystander moved sideways to ensure she did not hit the police cruiser parked behind her.
New case! Last summer in Marion, Kansas. Police made national news by raiding local newspapers in retaliation for reports that investigated the police chief and were critical of the mayor. (The newspaper’s 98-year-old co-owner died of a heart attack the next day.) They also raided the home of the deputy mayor, Ruth Herbel, 80, a political opponent of the mayor. This week, Ruth and IJ filed a lawsuit against the city, the (now former) mayor, and the (now former) police chief over retaliatory searches and seizures. “I ran for office because I loved Marion, and never in my wildest dreams did I imagine I would end up being charged with a crime at my kitchen table,” Ruth said. “Political conflicts should be resolved by voting, Rather than through search warrants and raids.” Learn more here.
