Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
New on the Short Circuit podcast: a judge-selection jaunt and a baptism in lieu of arrest.
- “Whose house?” “Our house!” D.C. Circuit: The United States Capitol building is, in fact, not your house. Nor is it a traditional public forum. So this Florida man’s various First Amendment challenges to his convictions for “parading, demonstrating, or picketing in a Capitol building” on January 6, 2021, all fail.
- In a shocking twist, biotech CEO who compares himself to both Steve Jobs and Jesus Christ and claims his company’s products cure paralysis and opioid addiction is convicted of fraud. In an even more shocking twist, he dies while his case is on appeal. So what happens to his conviction—and, more importantly, the more than $7.5 mil in restitution to the victims of his fraud? First Circuit: Vacated! We decline to follow the practice of several state courts—which merely dismiss such appeals as moot—and join every other federal court that hears direct criminal appeals (the 2nd-11th and D.C. Circuits, and the Court of Appeals for the Armed Forces) in adopting the doctrine of “abatement ab initio.”
- In response to advocacy from a Jewish group that wanted more places of worship within walking distance of where people actually live, Chestnut Ridge, N.Y. officials amend their zoning laws. NIMBY group: Which “radically transmogrifies the character of the Village”! And violates the Establishment Clause. Second Circuit: How is letting other people mind their own business in their own synagogues and churches hurting you?
- Allegation: Worker at a Pennsylvania House representative’s district office smells a terrible smell that causes headaches and burning eyes. She does a mold test as directed by higher-ups and discovers lots and lots of mold. Yikes! When she tells the house rep about the problem, he says, “Who the f— gave you the permission to do this?”; she’s fired after the rep sends a (separate) “profanity-laden email” to House staff and another rep. She sues, alleging First Amendment retaliation. District court: Her speech about the mold was part of her job, so it’s not protected by the First Amendment. Third Circuit (unpublished): Based on the allegations, it doesn’t seem like mold sleuth was in the job description. Try again.
- “Appellant Gavin Coco was injured during a 2018 Memorial Day weekend incident which culminated in his arrest after officers accused him of striking a police horse.” So begins this Third Circuit unpublished opinion, in which the court orders further proceedings to get to the bottom of whether Mr. Coco did indeed punch Poseidon (the police horse). (It also held that a person cannot claim First Amendment retaliation for recording the police when it was actually the person’s friend doing the recording.)
- CFPB issues a rule about credit card fees set to go into effect in mere weeks. Credit card companies sue to stop it, ask for a preliminary injunction and say “please please please rule on this super fast.” N.D. Tex.: How about the CFPB move to transfer the case to D.C. instead? Companies: We take that to mean “denied.” We’re appealing. N.D. Tex.: Oh yeah? Transfer granted. Fifth Circuit: Whoa! That transfer was no good; the appeal meant the district court lacked jurisdiction. Dissent: Try telling that to the court in D.C. that now has the case.
- San Antonio police shout at man sleeping in his delivery truck at 5 am to exit, point guns at him when he doesn’t do so immediately. He calls 911. (One officer points an AR-15 at him, putting a red dot on his forehead.) They eventually drag him out and rough him up. Turns out he’s just a guy sleeping in a truck. Fifth Circuit (unpublished): Pointing guns at a confused, unarmed, sleepy person who isn’t doing anything threatening violates the Constitution. Denial of qualified immunity affirmed. (Nor do the officers get QI for their “inventory search” of the truck; gotta actually take an inventory for that.)
- Muslim inmate sues Texas prison officials, alleging that they burdened his religious exercise by denying him clean showers before his weekly prayer service, a private cell to pray in, and religious programming. He also alleges that the fact that Texas provides Jewish- and Native-American-designated prison units but not a Muslim-designated unit violates the Establishment Clause. District court: No to everything. Fifth Circuit: The inmate is correct about the showering issue, the private cell issue is one for trial, and the district court needs to reconsider both the religious programming issue and the lack of a Muslim-designated prison unit. And you might want to get him some pro bono counsel given the complexity of the issues. Concurrence: For the first 15 years of RLUIPA’s existence, our court took a hands-off approach to religious liberty in prison. SCOTUS changed it all in 2015, but our court has mostly continued to follow the pre-2015 precedent. This is confusing to district courts and prison officials, and we should take it up en banc.
- Supreme Court (1998): For a federal prisoner to obtain Section 2255 review of a procedurally defaulted claim following a plea deal, the prisoner must prove his “actual innocence” not just of his crime of conviction, but of any more serious charges in the indictment that the government dismissed as part of the plea deal. But what if the other, dismissed charges were not “more” serious than the crime of conviction, but merely “equally” serious? Does the prisoner have to prove his innocence of those crimes too? Sixth Circuit: Yes.
- Sixth Circuit (unpublished): Wayne County, Mich. has made very clever arguments that persuade us that its county treasurer is actually, for purposes of this case, a state official entitled to sovereign immunity. But Wayne County is still just Wayne County, and so the lawsuit against it proceeds.
- Teacher speaks briefly at a Tecumseh, Ohio school board meeting about district’s failure to address growing student misconduct. Twenty months later, he gets in a physical altercation with his seventh-grade student for going to the bathroom without asking permission. Teacher is suspended, then sues for First Amendment retaliation. Sixth Circuit (unpublished): Wrestling with a teenager is not covered by the First Amendment, and there’s no reason to think this had anything to do with your comment nearly two years earlier.
- Although most lawsuits in federal court are heard by a single district court judge, some statutes—including the Voting Rights Act—provide for a small number of cases to be heard by three-judge panels. But the single district judge to whom the case is initially assigned can dismiss the case without sending it to a three-judge panel if the complaint fails to present a “substantial federal question.” How insubstantial must the federal question be to meet this fate? Sixth Circuit: Super-duper insubstantial, and decidedly more insubstantial than in this challenge to Ohio’s newly drawn congressional districts.
- En route to an unrelated call, a Grand Rapids, Mich. officer investigates a car parked (legally) on the side of the road. The car’s only occupant is in the passenger seat and says that it’s his girlfriend’s car. Yikes! He has an outstanding arrest warrant. Did the subsequent impoundment and inventory search of the car (which yielded contraband) violate the Fourth Amendment? Sixth Circuit: The defendant lacks Fourth Amendment rights in a car that he doesn’t own and wasn’t driving. No violation. Dissent: The car was “safely and legally parked,” so it couldn’t be towed and searched without a warrant or probable cause. Moreover, the defendant had a reasonable expectation of privacy in a car that he “often” borrowed and stored personal items in.
- Following the 2022 Highland Park shooting, victims and estates file suit in state court against (among others) Smith & Wesson, the manufacturer of the weapon used in the shooting. The company removes to federal court. District court: There’s absolutely no basis for you to be here—you weren’t “acting under” a federal officer (one potential ground for removal) and there is no federal question presented in the plaintiffs’ complaint (another ground). (There’s a bit more to it, but if you want the deets, read the op, as the kids say.) Seventh Circuit: Affirmed, and on remand, the district court should consider whether the company should pay its opponents’ attorney’s fees incurred in litigating the unjustified removal and appeal.
- A repeat player on Short Circuit, the long-running, sprawling challenge to plans to build the Obama Presidential Center in Chicago’s historic Jackson Park sputters back to the Seventh Circuit. Seventh Circuit: In this, the fourth appeal concerning the Center, the plaintiffs definitively, conclusively, irredeemably lose.
- A 1970 Tucson, Ariz. hotel fire kills 29 people. A then-16-year-old black boy is convicted of 28 counts of murder by an all-white jury (despite no forensic evidence of arson) and spends 42 years in prison. His convictions are set aside (swapped for a no-contest plea), he’s released in 2013, and he seeks damages. Ninth Circuit (2019): That no-contest plea is valid, so no damages. Man: Expunge the conviction, then. Query: Can a federal court expunge a state criminal conviction? Ninth Circuit (1978): Federal courts can expunge criminal records like arrests and indictments. District court (2021): Which means that we can expunge a conviction, too, if a jury makes certain factual findings. Ninth Circuit (2024) (unpublished): Too soon for us to tell if that’s correct. Go to trial first, and then we’ll consider it. Dissent: Courts have no authority to expunge a conviction under § 1983.
- California company calls businesses and falsely implies it is the businesses’ regular supplier of printer toner. The company tells the businesses the price of toner has gone up, but they can lock in the old price by purchasing more toner that day. The government prosecutes the company owners for mail fraud, and all are convicted following a 26-day trial. Ninth Circuit: Convictions vacated. To support a conviction for mail fraud, the lie must go to the nature of the bargain; the buyers here got the products they expected at the price they expected.
Will Cramer would like to put a “For Sale” sign on his 2009 Buick LaCrosse and park the car where he normally does in the street in front of his house. But that is a crime in Nazareth, Penn., even though nobody can point to any harm the public might suffer from such a sign or how the public might benefit from the ban. Curiously, the borough allows all manner of commercial speech on parked cars – it’s not a problem at all to advertise one’s business by legally parking a car with advertising on a public street. The ban just applies to “For Sale” signs. But the First Amendment prevents the borough from criminalizing a time-honored form of low-cost commercial speech without a serious justification, and here there’s nada. So this week, Will and IJ filed suit in federal court. Click here to learn more.
