Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.
In 2021, the Fort Bend, Tex. sheriff excluded independent journalist Justin Pulliam from a press conference, claiming Pulliam was not “media.” A few months later, deputies arrested Pulliam while he was filming their activities, claiming he was “interfering”—part of a pattern of retaliation against Pulliam for his journalism. But good news! A federal district court recently ruled that claims against the sheriff, his deputies, and the county can proceed. Click here to learn more.
Following the murder of George Floyd, the mayor of D.C. instituted a strict nighttime curfew for three days to combat rioting, vandalism, and theft. Plaintiffs: We were arrested for violating the curfew, but all we were doing was peacefully protesting outside the White House. A First Amendment violation? D.C. Circuit: No. The curfew was content-neutral, and nothing would have stopped the plaintiffs from doing their protesting in the daylight hours.
In 2018, Congress enacted the Allow States and Victims to Fight Online Sex Trafficking Act (FOSTA), which made it a felony to operate a website “with the intent to promote or facilitate the prostitution of another person” and denied those website operators the immunity from civil liability they would typically enjoy under Section 230. Sex-worker advocates sue, alleging that statutory terms like “facilitate” and “promote” are unconstitutionally overbroad and vague. D.C. Circuit: We think they mean “aid and abet” a criminal violation, which is clear and narrow enough to be constitutional.
It’s not often that three-judge panels yield four opinions, but so it is in this case out of the D.C. Circuit, in which the court, per curiam, holds that police did not violate the Fourth Amendment when they handcuffed and patted down a man after observing him receive a small backpack from another man in a high-crime area, ultimately discovering a firearm. Two judges write separately to concur in the judgment, while the third dissents.
Allegation: After victim identifies the apartment where she was raped and tells Worcester, Mass. police one of the perpetrators had a gun, the police get a warrant for the apartment, without taking any steps to find out whether the perpetrators actually live there. Bursting in without knocking, a SWAT team finds only a scared, pregnant teenager whose water promptly breaks. First Circuit: The guys who might have been there might have had a gun. Qualified immunity.
One sugar company tries to acquire another sugar company that would allow it to control 75 percent of sales in the southeast U.S. The feds claim that it’s not a sweet deal. District court: No Clayton Act violation. Sugar is kinda easy to move around. Third Circuit: Yeah, seems okay to us.
Union County, N.J. police officer conducts “Arther Method” of a polygraph test on a suspect. The method, which relies heavily on subjective observations like how sexily a lady is dressed, is not well regarded in the polygraph world. The suspect is convicted, then exonerated, and then sues the cop for fabricating evidence and the county for failing to train and supervise the cop. Third Circuit: The claim against the cop can go to trial, and the claim against the county could survive even if the cop avoids liability.
The Bolivarian Republic of Venezuela seizes several gold mines and doesn’t pay any compensation. Owner goes to an international arbitral panel and wins a handy $1.2 bil award. It’s then able to attach assets of Venezuela-linked oil companies in the U.S. because they’re controlled by Venezuela’s national oil company, an alter ego of the country itself. Other creditors try the same tactic. But wait! In 2019 the U.S. government recognizes the opposition leader as the legitimate president. Although he has no effective power back home, he reorganizes the U.S.-based oil interests. Still an alter ego? Third Circuit: Yes. “[R]ulers come and go . . . but sovereignty survives.”
Student accepts internship at ExxonMobil, believing (erroneously) that he had the permanent authorization to work in the United States that ExxonMobil required for the job. When ExxonMobil realized that he lacked the required work status, it revoked the job offer. The would-be intern sues for discrimination. Fourth Circuit: Just because a policy will only bar aliens without permanent work status does not mean it is intentionally discriminatory. ExxonMobil is just following the law, not picking and choosing its employees on a discriminatory basis.
Man wins multi-million-dollar arbitration award against his former attorney and son-in-law. (The “former” evidently applies to both relationships.) Son-in-law declares bankruptcy and seeks to discharge the award. Father-in-law: But the award has issue-preclusive effect and the arbitrator found all the elements of an exception to discharge. Son-in-law: But the award specifically includes a “disclaimer” saying that it’s not a formal finding of fact and law. Fifth Circuit: The arbitrator made his findings in a 53-page, single-spaced opinion, following a 10.5-day hearing involving more than 300 exhibits and testimony from 16 witnesses. The guy’s decision has preclusive effect.
Texas law requires that municipal contracts include a clause that the contractor will not boycott Israel. Palestinian contractor objects to Houston including that clause and sues both the city and the state attorney general. Attorney general: I don’t have any power to enforce this law, why am I here? Fifth Circuit: Just so, there’s no standing to sue the AG and he should be dismissed.
Federal statute says unlawful aliens “shall not be eligible” for a postsecondary education benefit on the basis of in-state residency unless out-of-state U.S. nationals are eligible. A provision of Texas law makes resident unlawful aliens eligible for in-state university tuition, and another provision charges higher tuition to out-of-staters. Out-of-state students at the University of North Texas say they should therefore get the in-state rate. Fifth Circuit: Maybe Texas is violating that federal law by giving in-state aliens lower tuition, but that doesn’t entitle out-of-staters to the lower rate.
Circuit Court Clerk for Anderson County, Tenn. informs intern that the dress code is “tighter and shorter” because “that’s what daddy likes.” (This, as it turns out, is among his least gross communications with her.) The county does nothing in response to complaints and the intern sues. Sixth Circuit (unpublished): And the county would have been on the hook, had the trial court not screwed up the jury instructions. Remanded for a new trial.
Coca-Cola chemist’s job is to test the can coatings as they switch from BPA to BPA-free; she’s laid off, steals the BPA-free formulas on her last night. She goes on to another chemical company and proceeds to steal its information, too. Meanwhile, she forms a company in China with the world’s “most advanced” BPA-free technology. Yikes! She’s caught, convicted of stealing trade secrets, and sentenced to 14 years. Sixth Circuit: Conviction affirmed, but resentencing is in order. The court can’t reject the chemist’s profit estimates as “puffery” and then rely on them to calculate her time behind bars.
Tennessee enacted a law prohibiting healthcare providers from performing gender-affirming surgeries and administering hormones or puberty blockers to minors. The district court preliminarily enjoined the law’s ban of hormones and puberty blockers (leaving the surgery ban intact). But the Sixth Circuit stays the injunction pending appeal, letting all of the law go into effect before it resolves the (now-expedited) appeal, given its view that the law is likely constitutional. Partial dissent: The law seems unconstitutional, but I agree that the injunction should only apply to the plaintiffs and not statewide. (Ed. note: major circuit split alert.)
Joseph Story (1838): “[F]rom my earliest reading, I have considered it laid up among the very elements of the common law, that, wherever there is a wrong, there is a remedy to redress it; and that every injury imports damage in the nature of it; and, if no other damage is established, the party injured is entitled to a verdict for nominal damages.” Supreme Court (2021): That Story fella seems like he knows what’s up. And by the way, our forefathers could absolutely sue for nominal damages for a breach of contract—even “absent evidence of other damages.” Seventh Circuit (July 11, 2023): Actually, “a breach of contract alone—without any actual harm—is purely an injury in law, not an injury in fact,” so no one gets to sue about it in federal court. And by the way, we agree with Will Baude that it’s hard to see how people ever have standing to sue for nominal damages. Prof. Baude (July 12, 2023): Wait, what … ? (paraphrased).
Practitioners of Falun Gong sue Cisco Systems, alleging that the company facilitated human-rights abuses by the Chinese Communist Party and Chinese government officials. Ninth Circuit: And their claims under the Alien Tort Statute may proceed. Dissent: We don’t need to be hearing cases about human rights violations committed in China against Chinese nationals by the Chinese government.
Though officers who detain non-suspect witnesses are on a pretty short leash, it was not unreasonable for these Sacramento, Calif. deputies to briefly detain the parents of a kid who reportedly threatened to shoot up his school, says the Ninth Circuit. But no qualified immunity for smashing the father’s head against a car and twisting his neck beyond its natural range of motion after he pulled out a cell phone to record the interaction.
Tenth Circuit: Officers, you can’t knee a cooperating prisoner in the face for no reason and get qualified immunity just because no other officer has ever been sued for that.
Utah game wardens: So, sure, our open-air off-road patrol vehicle had a big sign warning us to buckle up. And, yeah, we totally buckled ourselves in before we drove off. But we weren’t on notice that the Constitution required us to buckle our (handcuffed, belly chained, and, as it turns out, wrongfully accused) prisoner before we crashed that patrol vehicle into a fence post. Tenth Circuit: Sounds right. Qualified immunity it is!
Point of historical interest: In Stromberg v. California (1931), SCOTUS struck down a California law that prohibited raising a red flag in public as a violation of free speech—the first time the Court expressly invalidated a state law for violating a Bill of Rights right. Anyway, per the Eleventh Circuit, none of that helps this fellow who was tricked by ATF agents into attempting to rob drug dealers who did not exist.
Alabama man was to be executed for 1996 rape and murder, but, says the Eleventh Circuit, perhaps the sentence is too severe: Defense counsel failed to use court-awarded funds to investigate and present evidence of the sexual abuse, among other things, he suffered during childhood. Grant of habeas affirmed. Dissent: Indeed, it was completely unacceptable for the defense to spend less than 15 hours prepping for the sentencing phase of the trial. But it probably wouldn’t have mattered to the outcome; the mitigating evidence isn’t actually all that mitigating.
This en banc ruling from the Eleventh Circuit is nominally about federal preemption of state law claims regarding inadequate warnings on the herbicide Roundup. But the real action is in the dissent, which argues that Monsanto—which won below—abused the court’s process by paying the plaintiff $100k to appeal the district court’s ruling, presumably in the hopes of creating a circuit split and increasing the likelihood of Supreme Court review.
Ford advertised its Shelby GT350 Mustang as “an all-day track car that’s also street legal,” which was true as long as you didn’t plan to spend your day at the track driving fast. Two of the trim packages lacked essential features to prevent engine overheating, causing the cars to enter a low-powered “limp mode” after about ten minutes of track time. Owners of these gelded mustangs respond with a class action. Eleventh Circuit: Some of their claims can go forward. Dissent: [Endless puns.]
And in en banc news, the Fourth Circuit will not reconsider its decision that a former Winchester, Va. convenience store owner who had her inventory of cigarettes seized and then returned spoiled and worthless years later (after criminal charges against her were dismissed with prejudice) has no remedy under the Civil Asset Forfeiture Reform Act of 2000 and the Federal Tort Claims Act. (IJ filed a deeply compelling en banc petition urging reconsideration.)
Nor will the Ninth Circuit reconsider its opinion that a class action against Google for tracking children’s online activities without parental consent can proceed. The federal statute that gives the FTC the authority to regulate such tracking does not preempt alternative state law remedies that are not inconsistent with the statute.
In March 2021, the FBI seized Linda Martin’s life savings from her safe-deposit box in Los Angeles and for over two years refused to say what law they think she violated. But good news! Soon after Linda and IJ filed a nationwide class action, the FBI hurriedly returned her $40,200. But Linda and IJ will keep up the fight against the FBI’s “anemic” forfeiture notices, which don’t give the specific factual and legal reasons why the FBI is trying to forfeit the property, making it impossible for owners to respond meaningfully and effectively. Click here to learn more.
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