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: How to make a mandamus claim against the Capitol Police. Plus — parental advisory! — some spicy language in the Seventh Circuit, the first reported judicial opinion in America to drop the f-bomb, and a shoutout to Adeline, Countess of Cardigan.
Postal union member wants to run for leadership and place ads in the union magazine, but the union refuses, saying campaign ads may only appear in a special election issue. Union member sues, alleging that federal law requires the union to publish his ads, which the union claims would violate the First Amendment. D.C. Circuit: No First Amendment problem here; editorial control is for news media, not unions. Dissent: The law requires the union to “distribute” the message, not publish it in their magazine. Perhaps not the most high-profile criminal case pertaining to former President Donald Trump this week, but the D.C. Circuit affirmed a 10-year sentence for a former police officer who assaulted Capitol police on Jan. 6 (the unusually lengthy sentence reflecting both the trial penalty and his wearing of body armor during the assault). Sometimes a court will go out of its way to commend the lawyers on both sides for the quality of their advocacy, but in this case it really feels like the D.C. Circuit wanted to emphasize the ways both sides’ arguments were deficient. This case raises a question familiar to the personal-injury bar: Did you jump onto my car or did I hit you? But because the car was a Buffalo, N.Y. police cruiser and the collision resulted in the allegedly unlawful seizures of the struck pedestrian and his son, we also get qualified-immunity conundrums. Second Circuit (unpublished): All the key facts are disputed, so we don’t have jurisdiction to decide before trial whether the officers get immunity. This case has been up to the Supreme Court, back down to the district court, and is now back at the court of appeals after the district court granted summary judgment to a police-officer defendant on a malicious prosecution claim. Second Circuit (unpublished): And back to the district court it shall go because it was error to conclude that someone can be lawfully arrested just for asserting his Fourth Amendment rights against a warrantless search of his home. (Also, qualified immunity was forfeited by not asserting it in the district court.) Baby Ethan was healthy for his first 30 months of life. But then he rapidly regressed, exhibiting seizures and mitochondrial dysfunction, which several doctors diagnosed as a result of heavy-metal poisoning. Several years after his diagnosis, a House committee released a report showing that certain baby foods, including the brand that Ethan almost exclusively consumed (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 removed the case to federal court on diversity grounds. Fifth Circuit: Shouldn’ta done that. Their claim against Whole Foods—that its representations of selling high-quality products without harmful ingredients were incorrect—is plausible, making the grocer a proper defendant and defeating diversity. Back to Texas state court. In the years leading up to WWII, Jewish art collector Max Emden was forced to sell three Bernardo Bellotto paintings, including a replica Bellotto himself painted of The Marketplace at Pirna. The painting was destined for the Führermuseum, along with another replica of The Marketplace at Pirna, this one painted by an unknown artist rather than Bellotto and owned by an art dealer also fleeing the Nazis. The Monuments Men recovered both, restituting the Bellotto to the owner of the non-Bellotto by way of a Dutch governmental foundation that mistakenly requested the Bellotto rather than the replica. The Bellotto is now displayed at the Museum of Fine Arts, Houston, which insists it has no obligation to return the painting, despite Emden’s heirs’ efforts to recover the painting. Fifth Circuit: Alas, any evaluation of the case would require us to question an act of the Dutch government, which we cannot do under the act-of-state doctrine. Louisiana parishes sue oil companies and officers on various state law claims. Officers: Hey, we can take these cases to federal court because of some contracts from World War II. Fifth Circuit (2021): Hmmm, no on most claims, but maybe on some? Fifth Circuit (2022): OK, now it’s a no on everything. Some similar officers whose cases had been stayed then appeal. Officers: This time it’s different. Fifth Circuit (2024): Yeah, still no. Dissent: This is the Greatest Generation we’re talking about. Ohioans want to put an initiative on the ballot to amend the state’s constitution to eliminate qualified immunity, prosecutorial immunity, sovereign immunity, and every other kind of immunity. But the Ohio AG has refused to certify the proposed amendment six times, finding various reasons why the summary of the amendment isn’t “fair and truthful.” Fed up, the Ohioans sue. Sixth Circuit (over a dissent): And their motion for preliminary injunction is granted. The AG must certify the initiative so that its sponsors can begin collecting signatures. When a newly built bridge in Lawrence County, Ark. flooded local farms, the Eighth Circuit rules, the trial court was right to let the jury decide the case based on the rental value of the land rather than the cash value of specific destroyed crops, but it maybe should take a second look at whether the farmers can get an injunction to knock the bridge down as well. In 1981 in an unemployment compensation case, the Supreme Court said that when considering accommodations for people of faith, religious beliefs do not need to be “acceptable, logical, consistent, or comprehensible to others.” This was useful precedent for the Eighth Circuit in un-dismissing a suit by former employees of Minnesota’s Mayo Clinic who claim they were fired after refusing to either take a COVID shot or submit to weekly COVID tests. Letting the jury see a criminal defendant’s shackles (the Supreme Court has said) is inherently prejudicial. But what about this defendant’s ankle monitor, which, though unseen, emitted some inopportune beeping in the presence of the jury? Ninth Circuit: That’s different. It’s not inherently prejudicial. And even assuming any of the jurors grokked that the beeping was from an ankle monitor, this defendant hasn’t shown that she was actually prejudiced. Concurrence: A perceptible ankle monitor strikes me as kind of shackle-y, so I’d be open to saying it’s inherently prejudicial if it’s actually perceptible to the jury. But there’s no evidence that any juror had any idea the defendant was wearing one here. Guatemalan-Nicaraguan citizen who has been removed from the United States six times challenges his conviction for illegal reentry, arguing that the criminal prohibition on illegal reentry was enacted out of discriminatory animus and has a disproportionate effect on Latinos. Tenth Circuit: We join four other circuits in rejecting that argument. Does “landscaping” include installing an in-ground trampoline? Not in this case, says the Eleventh Circuit, because the landscaper told his insurance company that his landscaping wouldn’t involve any playground equipment. Which would not be all that interesting, except Judge Newsom went and wrote the most Newsom-esque concurrence of all time, in which he talks to us (and himself) about the promise and perils of using ChatGPT to discern plain meaning. And in en banc news, the Ninth Circuit will not reconsider its opinion that you don’t have standing to sue the gov’t just because the gov’t has (illegally) compiled a bunch of information about you. And in state court news, the Georgia Supreme Court has said that yes, seriously, civil-forfeiture complaints need to allege the essential elements of the crimes that serve as the basis for forfeiture. In a footnote to rival that of Carolene Products, the court also thanks IJ for its amicus brief. You’re welcome, friend. You are most welcome. And in cert denial news, we are sad that the Supreme Court will not take up Pollreis v. Marzolf, leaving undisturbed an Eighth Circuit decision that 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 nonthreatening” bystander. According to the panel majority, the officer could have reasonably perceived a threat because, in response to the officer’s command to “move back,” the bystander moved away sideways to ensure she didn’t run into a police cruiser parked behind her.
New case! Last summer, Marion, Kans. police made national news for raiding the local newspaper in retaliation for investigating the police chief and for coverage that was critical of the mayor. (The newspaper’s 98-year-old co-owner died the next day of a heart attack.) They also raided the home of the vice mayor, 80-year-old Ruth Herbel, a political opponent of the mayor’s. This week, Ruth and IJ filed suit against the city, the (now-former) mayor, and the (now-former) police chief over the retaliatory search and seizures. “I ran for office because I love Marion, and in my wildest dreams I never thought I would end up at my kitchen table being charged with crimes,” said Ruth. “Political conflicts should be settled at the polls, not with warrants and raids.” Click here to learn more.
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