Enjoy the latest edition of Short Date, a weekly feature written by a bunch of folks at the Institute for Justice.
New on the Short Circuit podcast: drug bags, an illegal assembly and a rallying call to celebrate the centennial of one of the most sweeping defenses of individual liberty in history, Meyer vs. Nebraska.
- In response to a public records request, ICE is turning over 21 spreadsheets to the ACLU. But wait! Records are pretty much useless because they lack personal identifiers. ICE: They are exempt. We can’t go around handing out files to people! ACLU: But you can replace anonymized identifiers so that we know which records belong to the same person without identifying the person. District Court: No, it is the creation of a new record, which is not required by the FOIA. Second round: vice versa.
- A gang member was convicted of witness retaliation and sentenced to three years in prison after attacking a former gang member on a Bronx street. Second round: New trial. The defense was not allowed to sufficiently probe the anti-gang bias among the jurors. “[D]district judges have broad discretion in conducting voir dire. This discretion, however, is not limitless.”
- This Second Circuit case discusses whether various New York State actors are entitled to Eleventh Amendment immunity in an easement suit brought by the Seneca Nation. Interesting stuff. Equally interesting: It’s also a case study in the practice of the Second Circuit Court (unique among federal appellate courts?) that each judge is allowed to follow his own idiosyncratic document-drafting preferences. Compare Majority Opinion (includes wide margins and single-spaced text), with Separate opinion (favors ~1 inch margins and double-spaced text).
- Board of Immigration Appeals: Sure, the gang harassed you, threatened you, and beat you repeatedly, and then, when you fled the city, they got their revenge by beating your father and raping your sister. But that only counts as “past banishment” if you had to hire a doctor. Third round: Guys. guys. Not.
- It’s March 2020. Officials in North Carolina’s Outer Banks ban (with four days’ notice) non-resident property owners from entering the county, ultimately for 45 days. Unconstitutional Uncompensated Regulatory Foreclosure of Richmond, Va. Couple’s Beach House? Fourth round: Why are there no privileges and immunities? And not.
- What is the difference between “interpretive rule” and “legislative rule” from the Administrative Procedure Act? The Fifth Circuit explains while invalidating an FAA rule that, being “legislative,” was void because it did not go through proper notice and comment procedures.
- It’s March 2020. Over the weekend, her law firm told Mom’s lawyer that they would try this “work from home” thing on Wednesday, March 18th. But only for one day. While the rest of the world stops, her son’s daycare closes. He asks if WFH can also be Monday and Tuesday. The law firm denies the request, so she uses the PTO. Then he does WFH on Wednesday. It’s going just fine. He says he will be back on Thursday. But the son has symptoms similar to COVID that are not improving, so Thursday morning he asks HR if he can WFH on Thursday and Friday. HR says good. It didn’t turn out so well though, because later that day the lead partner reverses HR’s decision and fires her. FMLA Violation? Round Six: She must have said something.
- Allegations: A Livingston County, Michigan probation officer is critical of the district attorney’s discriminatory practices, and they retaliate by filing false perjury charges and suspending her from her job. She is suing for violations of her First and Fourth Amendment rights, among other things. Prosecutors open a pack of government immunity cards and play. . . ALL: prosecutorial, sovereign, qualified and state law. Sixth Circuit (unpublished, due to dissent): Immunities (mostly) denied, case may proceed.
- A Milwaukee man has been convicted of shooting three men at a party in 2009, killing one. After his conviction, a new eyewitness appears who says that the prosecution’s main witness was actually the shooter. Habeas? Seventh Circuit: Failure to satisfy state procedural rules precludes relief, and insufficient evidence of actual innocence to overcome that bar. Dissent: The state judge found the new witness credible, and the state’s evidence was pretty shaky, so there is enough evidence of actual innocence that we should consider the constitutional claims.
- Between 1993 and 2017, Chicago classified aviation security officers at O’Hare Airport as law enforcement personnel, which had perks like arresting people and being allowed to carry concealed firearms after retirement. In 2017, the city changed its mind about the classification. Violation of the Due Process Clause of the Fourteenth Amendment? Seventh round: Definitely not.
- Plaintiff Jane Doe goes to St. Mary’s Medical Center. Louis VA to receive acupuncture therapy (BFA)—a form of therapy that involves inserting needles or nails into five places in the patient’s ear—to treat hip pain. The nurse who performs this hocus pocus also sexually assaults Doe. She is suing under the Federal Tort Claims Act. Eighth Circuit: Sexual assault was not part of his job duties, so no FTCA claim.
- A paraplegic, serial ADA litigator is suing a California “Lobster Shop” because its parking lot is inaccessible to his modified van. This is the latest of his nearly 2,000 ADA lawsuits. Ninth Circuit: Nothing wrong with being a serial litigator under the ADA. Dissent: But the district court found after a bench trial that the plaintiff had no real intention of ever returning to the store — which he claimed anyway. It wasn’t an obvious mistake, so he lacks reputation.
- Another week, another case of an inmate dying due to incompetent medical care, this time from Oklahoma. Tenth Circuit: But at least some of her claims can go forward.
- A seventeen-and-a-half-year-old girl, a member of the Choctaw Nation, orchestrates the murder of her abusive and negligent parents by two underage friends. The government is charging her with two counts of first-degree murder, crimes for which the penalties — death or life in prison without parole — are unconstitutional when applied to minors. She is contesting the transfer of her case from juvenile court. Tenth Circuit: Her constitutional claim is unripe—she could be acquitted. Although the facts are tragic, the district court properly weighed the transfer factors. Disagreement: No, it’s not.
- In which the Tenth Circuit illustrates the difference between things that states cannot legally do (which includes interfering with the interstate transportation of hemp) and things that states can do without fear of being sued (which, apparently, includes seizing all of your hemp plants at the airport).
- The Eleventh Circuit is the last to rule on the tax offset provision in the US Bailout Act, splitting with the Sixth (somewhat) and Eighth Circuits on standing, and striking down Congress’ “offset clause” that prohibits states from cutting taxes after taking incentives to COVID-19 goodies were unconstitutional.
- Sitting en banc, the Eleventh Circuit held that the Constitution provides no legal remedy if officials arrest you on a decades-old warrant from another state for a person with the same name—a name shared by thousands of people—and fail to check for very obvious differences (height, weight, tattoos , date of birth, social security number, fingerprints) between you and your desired homonym. Also, if the officials threaten you when you try to tell the judge about the confusion, that’s fine too.
- And in banking news, the Ninth Circuit will not reconsider its holding that talk therapy is a form of medical conduct indistinguishable, for First Amendment purposes, from brain surgery. Five Justices dissented, and Chief Justice O’Scannlain’s opinion denying rehearing en banc makes arguments that sound very similar to those in the IJ’s amicus brief in support of rehearing.
- And in an amicus brief, the IJ asks the Fifth Circuit to uphold the denial of qualified immunity to St. Parish police officers. Tammany, La. who took their time, got legal advice, deliberated calmly, and then arrested the former officer for criticizing them after the district attorney told him such an arrest would be unconstitutional.
Friends, is it rational to require end-of-life doulas, who help the terminally ill and their families organize home funerals, to build a funeral home that will just sit empty? California regulators say yes, but this week a federal district court ruled no: There is no health, safety or consumer protection justification for such a requirement. Moreover, prohibiting doulas from providing end-of-life planning advice and from truthfully advertising their services violates the First Amendment. Hooray for common sense, judicial involvement and a rational basis with bite! Click here to learn more.