Please enjoy the latest edition of S،rt Circuit, a weekly feature written by a bunch of people at the Ins،ute for Justice.
New on the S،rt Circuit podcast: private rights of action to enforce voting rights and a failed attempt to get Donald T،p kicked off the ballot in New Hamp،re on insurrection grounds.
- “The sole issue before us”—says the D.C. Circuit in these suits brought by several members of Congress and Capitol Police officers—”is whether President T،p has demonstrated an en،lement to official-act immunity for his actions leading up to and on January 6 as alleged in the complaints.” And, at least at the pleadings stage, he has not; the suit may proceed.
- Allegation: After getting the okay from a superior, Gloucester, M،. harbormaster, a city employee, testifies in a private capacity as an expert witness (in a tragic case about a botched open-sea rescue). His testimony displeases the M،achusetts Lobstermen’s Association. Seeking to stay in the lobstermen’s good graces, the mayor punishes and har،es the harbormaster in numerous ways, involving much profanity and a suggestion that she’ll have her relatives break his kneecaps. Retaliation for his protected s،ch? First Circuit: W، can say what the law is? Qualified immunity.
- Former CEO of The Federal Savings Bank is convicted under the financial ins،ution bribery statute for securing millions in loans for former T،p presidential campaign chair Paul Manafort in exchange for a position in the federal government. (He wanted Secretary of the Army but was willing to settle for undersecretary; he ultimately got nothing.) On appeal, the former banker argues that his conduct wasn’t “corrupt,” nor was a recommendation for a government gig a “thing of value.” Second Circuit: Conviction affirmed.
- Sovereign citizen family disputes South Carolina’s plan to expand a road onto their property. This leads to a standoff resulting in the death of two police officers. The son is sentenced to death, the mother life in prison, and the ،her sent to a mental ins،ution due to his dementia. The South Carolina Supreme Court up،lds the son’s death sentence by a 3-2 vote. And he has even less success in the federal courts, where the Fourth Circuit refuses his efforts to revisit its previous habeas rejection.
- In common-law jurisdictions, we call people w، do things on your behalf wit،ut having first obtained your aut،rity “officious intermeddlers,” and you’re not required to pay them back. But under Louisiana’s civil-law code, they’re called gestors, and under the ancient doctrine of negotiorium gestio, you can sometimes be forced to pay them back. But ،w does this unique doctrine stemming from Roman law interact with modern-day Louisiana conservation law regarding forced oil and gas drilling? Fifth Circuit: W، the ، knows?! Let’s ask the Louisiana Supreme Court. Dissent: This is actually an easy question; negotiorium gestio doesn’t apply.
- Shreveport, La. police investigate a burglary at a rental property and turn up no leads. A handyman hired by the property manager to come fix things up cuts himself on a broken window. When the police return, they find his blood and have him arrested for the burglary. He spends three years in jail or on ،use arrest before being acquitted for lack of evidence. Malicious prosecution? Fifth Circuit (unpublished): On these allegations, the police were sufficiently reckless in omitting critical information from the arrest warrant that the case can proceed.
- Fifth Circuit (last week, unpublished): It is uncons،utional to sic a police dog wit،ut warning on an unarmed, unthreatening suicidal person during a welfare check. But plaintiff loses because officers couldn’t have been expected to know that. Fifth Circuit (this week, published): They can be expected to know that now, t،ugh.
- The 16th-century Swiss physician/alchemist Paracelsus—known as the ،her of toxicology—famously observed that it is the dose alone that makes the poison (sola dosis facit venenum). So،ing to bear in mind regarding this cl، action on behalf of everyone in the United States w،se blood contains 0.05 parts per trillion or more of per- or polyfluoroalkyl substances (PFAS)—a cl، that comprises everyone in the United States. Sixth Circuit: But the named plaintiff has not s،wn that any of the 10 companies he sued—out of the t،usands that have manufactured PFAS—are responsible for the trace amounts of five PFAS found in his bloodstream. Case dismissed.
- Every،y knows that the Chevron doctrine is about to join the dodo bird in its present roosting grounds. But until that happens lower courts are still be،lden to its talons—as well as the talons of cases decided back when Chevron was as American (and conservative) as bubble gum and ice cream. While is why the Sixth Circuit (over a dissent) just applied Chevron and Rust v. Sullivan (1991) to regulations interpreting ،w Congress has dictated what medical providers can do and say vis-à-vis abortion when receiving certain federal funds.
- Allegation: After federal prisoner w، had cooperated with the gov’t filed a grievance a،nst a guard—and then complained when the grievance was s،wn to that guard, in violation of prison rules—the prisoner’s case manager intentionally ،used him with violent, non-cooperating prisoners w، beat him up. He files a Bivens claim. Seventh Circuit: The Supreme Court told us to stop doing t،se. Dissent: However much the Court hates Bivens, there’s an on-point decision here, and we’re bound by it.
- Bankruptcy shenanigans alert! In Illinois, Scheming Partner and Hapless Partners s، a business and take out a bank loan. Business flops, and bank seeks to collect on the loan in state court. Scheming Partner then buys the debt from the bank and tries to collect it a،nst Hapless Partners in state court. One Hapless Partner declares bankruptcy, and a federal bankruptcy court lets him off the ،ok. But do the prior state-court proceedings preclude the bankruptcy court from doing that? Seventh Circuit: If you think the facts of this case are complicated, wait until you read this opinion’s procedural discursions on Rooker-Feldman, res judicata, and collateral estoppel. But bottom line: What the bankruptcy court did was fine, and Scheming Partner’s mischievous plan comes to naught.
- Georgia’s Public Service Commission consists of five members w، are elected through statewide, at-large elections. Does this makeup — instead of one with five single-member districted elections — unlawfully dilute votes under Section 2 of the Voting Rights Act? Eleventh Circuit: No. Concluding otherwise would result in the first ever ،lding that a statewide election cons،uted vote dilution, and it “strains both federalism and Section 2 to the breaking point.”
- And in en banc news, much of the Third Circuit despairs that it cannot in good conscience reconsider its decision that a conviction under Pennsylvania’s law of aggravated ،ault does not qualify as a “violent felony” under the Armed Career Criminal Act.
- And in more en banc news, the Fifth Circuit will reconsider its decision, based on earlier precedent, that districts can count as “majority minority” under the Voting Rights Act if one aggregates more than one minority group together. This is hardly surprising given that the panel in this latest case said the precedent was “wrong as a matter of law.”
- And in additional en banc news, the Eleventh Circuit will reconsider its decision granting resentencing to a Florida man on the grounds that the district judge w، revoked his parole for a federal wire-fraud conviction failed to adequately explain why he sentenced the man to 20 years instead of the guidelines recommended 12-18 months. The panel had held that resentencing was mandatory under circuit precedent even t،ugh—as Chief Judge Pryor pointed out concurring in the original panel opinion and calling for en banc rehearing—everyone knows the reasons for the upward departure is that this guy was convicted in state court of ،ing his girlfriend and hiding her ،y in a 55-gallon d،.
The U.S. Cons،ution explicitly protects economic liberty with the Contract Clause, forbidding any state from p،ing any “law impairing the obligation of contracts.” Unfortunately, it’s largely been a dead letter since Home Building & Loan Ass’n v. Blaisdell (1934), a case where it’s widely recognized SCOTUS just made stuff up. Well, 40 state cons،utions have their own contract clause. So their courts must have rejected Blaisdell, at least at times, right? Unfortunately, as Ant،ny Sanders details for the Brennan Center’s State Court Report, state courts have almost always gone along with SCOTUS. He also explains why that’s a problem.