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Please enjoy the latest version of Short circuita weekly feature from the Institute for Justice.

For those who enjoy streaming crossover episodes, listen to Ken White (of a dangerous problem Fame) which stopped at Short Circuit Podcast The previous weekend.

  • The District Court (2018) sentenced the accused of car theft to 195 months in prison. Defendant on Appeal: The district court incorrectly took into account a host of my prior arrests, even though those arrests did not actually result in convictions. Government: The man is right. First Circuit (2019): So it is. The ruling was canceled and the case was returned for trial again. District Court (2020): Welcome back, my friend. While your case is on appeal, some previous arrests have resulted in convictions, so your criminal history category is now higher than it was when you were first sentenced. Your new sentence is now 240 months. First circle (2023): Seriously? “Sandbags are not a trend in this arena.” It was redirected for a third attempt (and although the opinion itself is too flattering to say so,… Accompanying ruling He calmly orders that the case be reassigned to another judge on remand.)
  • this Second Circuit The decision is largely unremarkable, except for the footnote *, which notes that Judge Allison Nathan was originally appointed to the appeal as a district court judge serving by appointment but now appears in the panel’s decision as a full-fledged circuit court judge.
  • The fifth circuit board mentions that Last month Prevent various actors within the Biden administration from pressuring social media companies to remove posts the feds don’t like? This week, that committee withdrew its opinion and was replaced by new. It is unhelpful that it does not summarize what has been changed, and we, for our part, refuse to read it again. It seems they mostly came to the same conclusion, but who knows? If you want to know, we’ve created a version to track changes that you can access here.
  • A woman in Harris County, Texas, repeatedly calls the cops to complain about a neighbor’s loud music. And every time officers responded, they heard nothing. Once they left, the woman called again and insisted that the neighbor turn on the music again. After the third such call in one day, an officer claimed he was going to drive away, but in fact lay in wait. monitoring! Minutes later, the woman called to make another noise complaint. But the officer lurking behind the fence hears nothing and arrests the caller for “telephone harassment.” The charge was eventually dropped. Fourth Amendment violation of false arrest? Fifth Circuit: I don’t know, you don’t care. Qualified immunity.
  • at any Fifth Circuit Honors the first rule of admiralty law: nautical puns.
  • Appellant: I hereby file an urgent appeal, please. Sixth Circuit: Sorry, we couldn’t make time for this, but here are nine pages explaining why you will lose on the merits once we start deciding your appeal on a non-urgent basis.
  • “We understand [the plaintiff’s] “Frustration” is not the kind of thing prosecutors like to hear from the court. And that’s the case in this one Sixth Circuit The case, in which a plaintiff who was granted a judgment by a (state) court was entitled to the proceeds from the sale of his farm—which was seized after his son used it to grow marijuana—was not entitled to recourse on a (federal) takeover suit. (Per Michigan Cannabis Regulatory Agency“,”[a]An act of the Michigan Legislature would be needed to change the spelling of marijuana in Michigan laws” from Marijuana to Marijuana(And we at Short Circuit are nothing if not sticklers for pedantry.)
  • Since 1979, Tennessee has made it a crime for anyone (other than an election official) to distribute the state’s official form to apply for an absentee vote. Labor unions and nonprofits: We want to distribute the form during voter campaigns, and the ban violates our First Amendment rights. Sixth Circuit: The law is good. We are not bothered by the fact that the State of Tennessee now makes the application form freely available online. (We at Short Circuit are afraid to post a hyperlink, lest it turn us into Class E criminals in the Volunteer State, but Google it!) Dissent: Sharing political documents certainly seems to be the essence of political discourse.
  • A Lexington, Kentucky inmate is repeatedly sexually assaulted by a prison employee (who is now himself… Jailed). She is suing her employer (USA) for negligence under the Federal Tort Claims Act. The Feds: We first became aware of this situation when other inmates reported the employee, and then we jumped into action. Sixth Circuit: It is possible that the feds knew before then—and they are indeed required to act when they learn of such incidents—but that possibility is not enough to pursue the prisoner’s case.
  • In 2023, both Tennessee and Kentucky passed laws prohibiting health care providers from providing certain treatments to minors with gender dysphoria. In general, laws limit surgeries, puberty blockers, and hormones. Both laws were initially imposed (the injunctions remained pending appeal). Sixth Circuit: “Preventing citizens and legislators from presenting their views on high-stakes medical policies, in which compassion for the child points in both directions, is not something that federal judges who hold office for life should do without a clear order in the Constitution.” Opposition: Laws conflict with prevailing standards of care, equal protection and due process. It should not take effect.
  • Pro tip to your defense team: If your client is facing fifty years for cocaine possession, you don’t want to see… Seventh Circuit Later citing your admission that you “did not do anything independently to develop any mitigation.” (Unless you’re playing ten-dimensional chess and falling on your sword to give your client a chance to stand trial.)
  • A parent group is filing a lawsuit challenging Iowa’s Linn-Mar Community School District policy that stipulates that students’ “gender support plans” must be hidden from the students’ parents. Eighth Circuit: Well, Iowa schools aren’t allowed to do that anymore, so that part of the issue is moot. But a policy requiring students to “respect the student’s gender identity” may be devoid of ambiguity.
  • In 2020, Idaho passed a law banning most abortions in the state if overturned by the Supreme Court Roe v. Wade. When the Supreme Court did so, the law took effect. Feds: Idaho law is overridden by the Emergency Medical Treatment and Labor Act, which requires emergency room doctors to stabilize patients’ medical emergencies before transporting them. Ninth Circuit: There is no conflict here. Among other things, Idaho law does not prohibit abortions necessary to save the mother’s life, and EMTALA explicitly requires that doctors stabilize the mother’s condition. And Unborn child when possible.
  • After a COVID-19 outbreak at a California prison, officials transferred 122 high-risk inmates to San Quentin State Prison, which had no known cases. Oh oh! Transport prisoners have been testing negative for coronavirus for more than three weeks and are essentially useless. The transporters caused an outbreak at San Quentin, infecting more than 2,000 inmates and killing 26 inmates and one guard. The deceased prisoner’s wife files a lawsuit. Ninth Circuit: There is no immunity under the Public Preparedness and Emergency Preparedness Act. There is no qualified immunity either.
  • Following an arson investigation conducted by Tucson, Arizona, police, a husband and wife sued the city and one of the officers for Fourth Amendment violations and violations of the Arizona Public Records Act. In response to the lawsuits (so the couple claims), police have reopened their original criminal investigation and are trying to get the IRS to investigate the couple as well. Couple: Come on! This is First Amendment revenge! Ninth Circuit: Maybe it is, maybe it is not. The pair “have not identified any case law that clearly establishes that the retaliation investigation itself violates the First Amendment,” so (all of us now!) qualified immunity.
  • A Thai Buddhist Meditation Center wants to operate out of a converted apartment house in Mobile, Alabama, but it can’t get zoning approval. She sues under the Religious Land Use and Institutionalized Persons Act, the Free Exercise Clause, and the Religious Freedom Amendment of the Alabama Constitution, but loses all three claims on summary judgment. Eleventh Circuit: RLUIPA is a tie (i.e. must go to trial) and free exercise is a loss of position. But ARFA is a win: The city has failed to show a convincing interest in keeping the meditation center out of the neighborhood.
  • A Pasco County, Florida, sheriff’s deputy stops a vehicle towing a trailer because the trailer’s license tag is obscured. He requests the card from the driver, who complies, and when he requests the card from the passenger, the passenger refuses, stating that he is not suspected of any violations. The passenger was arrested for “resisting without violence” and later filed a lawsuit. Eleventh Circuit: It would be very strange if an officer were allowed to order a passenger out of the car — as SCOTUS said — but not allowed to ask for ID, so the officer gets qualified immunity. Dissent: It would be even more bizarre if an officer were prohibited from arresting a pedestrian for refusing to identify himself — as SCOTUS said — but allowed to arrest a passenger for the same reason. Consent: The fact that you disagree means that this right is not clearly established.

State Constitution Alert: The IJ represents two hunting clubs fed up with Pennsylvania game wardens roaming their lands without a warrant. Such wandering is fine under the Fourth Amendment, SCOTUS says. But what about the Pennsylvania Constitution? We’ll find out soon. The state Court of Appeals just decided that giving game wardens “unfettered discretion to enter and roam private lands without consent, warrants, or probable cause” is a good thing. (Cheers to the concurring judges, who “fundamentally disagree.”) IJ now Plan to appeal And see what the Pennsylvania Supreme Court has to say about that.

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