Short Circuit: A Roundup of Recent Federal Court Decisions

Public defender shortfalls, warrantless rental inspections, and juveniles in solitary confinement.

|The Volokh Conspiracy |


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  • Pennsylvania man serves 10-year sentence for using internet to entice minor (actually an undercover officer). Some conditions of his supervised release: the installation of filtering and monitoring software on his computer and also, confusingly, a lifetime ban on computer and internet use. Third Circuit: He "cannot follow these conditions because he cannot tell what they forbid." Which violates due process. Further, a lifetime ban is more restrictive than necessary. Vacated and remanded.
  • Man nailed for drug crimes on New Year's Eve gets charges dismissed; a Pennsylvania court says the search violated the Fourth Amendment. After the court's decision, and three years after his arrest, he sues the arresting officer (for violating the Fourth Amendment). Third Circuit: Too late! The two-year statute of limitations runs from the time of the search, not the time of the decision invalidating it.
  • Faced with funding shortfall, Louisiana public defenders put noncapital defendants on months-long waitlists; defendants appear in court without counsel. Defendants sue the defenders: This is unconstitutional in a bunch of ways. Public defenders: Totally. Somebody should fund us. Louisiana Legislature (after several years of litigation): Oh all right, here's $5 mil; eliminate the waitlists. Defendants: Great, but this problem isn't going away. Fifth Circuit: "[N]o waitlists = no live case or controversy = no jurisdiction."
  • Texas officials order doctor to turn over patient records. (He declines, but an office manager surrenders them after being threatened with arrest.) Fifth Circuit: Though the records were potentially inculpatory, the doc can't challenge the search because he has no privacy interests at stake. Only the patients have privacy interests in the medical records, and because the doc doesn't own the clinic where he works, he doesn't have a privacy interest in the area searched (which differentiates the case from the Fifth Circuit's August decision in a similar case).
  • Evendale, Ohio officials pass law requiring warrantless inspections of rental properties. Landlords: Which violates the Fourth Amendment. Sixth Circuit: You don't have standing because officials haven't actually pounded on your door.
  • Man plans, serves as a lookout for five armed robberies of Detroit electronics stores, gets 124.5-year sentence. U.S. Supreme Court: Take another look at the sentence in light of new precedent narrowing what counts as a "crime of violence." Sixth Circuit: Sure thing. He gets 124.5 years. Robbery involves force and so is a crime of violence, as is aiding and abetting said force. (And his other arguments die many procedural deaths.)
  • Man who is 12 years into 24-year sentence has his conviction partially overturned (after the U.S. Supreme Court narrows what counts as a "crime of violence"). Yikes! The max sentence after the correction is just 10 years. Just resentence him to time served? No, says the Sixth Circuit (in July). If the max is 10, you can't sentence him to 12. Pick a new remedy. The dissent: As Lady Macbeth says in Act III, "What's done cannot be undone." [Editor's note: Actually, that's Act V. But Act III does say that "Things without all remedy / Should be without regard: what's done is done."] Sixth Circuit (this week, in a separate case): We decided this in July. Time-served sentences are a no-go. (The Sixth Circuit Blog has the scoop.)
  • Two 16-year-olds from Iowa are sent to Irma, Wisc. juvenile detention facility. Allegation: Where for months they spend 22 hours a day alone in 7-by-10-foot cells containing only a metal cot and thin mattress. They receive little to no education, are subjected to excessive force, and both attempt suicide. Seventh Circuit: No qualified immunity (yet) for Iowa official who contracted with Wisconsin officials to send the teens there.
  • Coles County, Ill. officials hike taxes for commercial and industrial properties in one township (by 25 and 21 percent, respectively)—but not for anywhere else in the rest of the county. An equal protection violation? No need to consider that, says the Seventh Circuit; the comity doctrine prevents us from disrupting state tax systems (so long as those systems offer adequate means of challenging tax assessments).
  • Under the Prison Litigation Reform Act of 1995, prisoners cannot file a lawsuit challenging prison conditions until they have exhausted "such administrative remedies as are available." But how "available" are those remedies if they are described to a prisoner only in a language prison officials know he does not understand? Not "available" enough to bar this lawsuit, says the Seventh Circuit.
  • If you were ripped off by a couple of companies that enrolled consumers in membership-rewards programs without their consent, congratulations, you're entitled to a $20 credit to buy more stuff from them. Ninth Circuit: Your class counsel, however, is probably not entitled to $8.7 million in attorney's fees for winning you a coupon.
  • After President Trump pardoned controversial former sheriff Joe Arpaio, a judge dismissed his prosecution but did not vacate his conviction for criminal contempt of court. Federal prosecutors now say they will not defend the judge's ruling on appeal. Does the court have the power to appoint a special prosecutor to do the job for them? Ninth Circuit: We see no reason why not. Dissent: Prosecuting is the executive's job; you're violating the separation of powers.
  • Woman arrested for driving with suspended license makes bond, but Bulloch County, Ga. jail officials suspect she's in the U.S. illegally, decline to release her. Her sister calls every 15 minutes for updates, brings documents proving her citizenship to the jail, eventually contacts ICE, which tells the jail to release her. (She'd spent 26 hours in jail.) Eleventh Circuit: The Fourth Amendment requires probable cause to detain someone. Remand to the district court to assess each official's actions and determine which are responsible.
  • Night-shift worker: Olympia, Wash. officer tailed me as I returned to office in company vehicle and uniform (after completing repair job off site). Then he inexplicably reported a potential burglary in progress, and officers barged into the office unannounced, pointed guns, knocked me down, detained me for 45 minutes, laughed and high-fived. Officer: I didn't tail him; I just saw the office had an open door and decided to investigate. District court: Could be excessive force, but the worker's claim for intentional infliction of emotional distress can't go; the conduct alleged isn't "'utterly intolerable in a civilized society.'" (H/t: Police4aqi.)
  • Report: Between 1981 and 2014, black defendants in Washington state courts were 4.5 times more likely to be sentenced to death than similarly situated white defendants. Washington Supreme Court: The state's death penalty violates the state constitution because it is administered arbitrarily and in a racially biased way.

This week, the U.S. Supreme Court vacated an abominable ruling out of the Eighth Circuit that upheld Missouri's licensing law for African-style hair braiders. The law, which has since been amended by state legislators to exempt braiders, forced braiders to spend 1,500 hours and thousands of dollars at cosmetology schools (that provide little or no instruction relevant to braiding) on pain of criminal penalties. The Eighth Circuit ruled that an occupational licensing regime that imposes a "needless, wasteful requirement" passes constitutional muster if even a small percentage of it is rationally related to any legitimate public interest. That bad precedent is no longer on the books. Read more here.

NEXT: Libertarian and Police Accountability Pages Deleted in Facebook Purge


  1. Since when did pardons concede guilt?

    1. Almost from the beginning

      Why would Michael Cohen refuse a pardon? There’s precedent

      The Supreme Court has several times upheld defendants’ decisions to refuse pardons. When bank robber George Wilson declined to plead a pardon from President Andrew Jackson, the Supreme Court held in 1833 that the pardon was not effective (United States v. Wilson). When New York Tribune editor George Burdick refused to accept a pardon from President Woodrow Wilson and instead insisted upon his Fifth Amendment right to remain silent in an investigation into leaks to the press from the Treasury Department, the Supreme Court likewise affirmed his ability to do so (Burdick v. United States).

      Acceptance of a pardon has often been seen as an admission of guilt. The Court in Burdick acknowledged as much, noting the “confession of guilt implied in the acceptance of a pardon.” This admission of guilt may have several dimensions. The most straightforward imputes responsibility for the underlying crime to the person pardoned. Another, however, objects to the notion that the actions committed were crimes at all.

      The latter was the case in the aftermath of the American Revolution.

      1. So then when President Trump pardoned Jack Johnson, that was a declaration of guilt.

        Also, that means the Innocence Project is useless, as the state could simply pardon those they are trying to exonerate, thus declaring them guilty for all time.

        1. The view that a pardon concedes guilt is by no means universal, but it is not new, it is in fact older than the US as a nation.

          1. So what is the point of the Innocence Project, then?

            1. Getting innocent people out of prison?

            2. Getting convictions vacated in court. It should be noted here, that in all 50 states the governor’s office and/or the pardon board have long standing official policies of rejecting out of hand any pardon request based on claims of innocence.

              1. Matthew, I don’t doubt you, but would you please supply a link to support “in all 50 states the governor’s office and/or the pardon board have long standing official policies of rejecting out of hand any pardon request based on claims of innocence”?

        2. Well under that precedent they could just refuse the pardon (thus frustrating the state in its efforts).

          That said, I was curious about this, and as it turns out the answer is complicated.

          Point in fact the court allowed the refusal because it could be seen as an admission of guilt not because it was (a rather fine distinction I’ll readily concede).

          I won’t get into detail here but for the interested a few quick searches will point to literature that explains the situation far better than I could.

          Oddly enough the VC did an article on this last year (before I started reading the old timers here can now chuckle at me).

      2. Well there’s always the case where a pardon is issued prior to a trial or conviction as in the case of Nixon. The pardon can also be carefully worded (again as in the Nixon’s case) using a phrase such as “any crimes that may have been committed.”


    So you can’t sue before it’s determined to be invalid, but by the time it is revealed as invalid, it’s too late to sue.
    Which ‘Catch-#’ is this filed under?

    1. Catch-#FYTW

  3. Since defendants can’t use a civil lawsuit as a collateral attack on their conviction, the result of the 3rd Circuit’s search statute of limitations decision is to give government an enormous incentive to stall. Defendants can’t sue until a conviction is overturned. So no matter egregious their conduct is, if state officials can simply stall review of the underlying conviction past the statute of limitations, they are then completely insulated from any liability.

    1. I think this actually hurts the government and district courts. Any competent attorney is going to file the lawsuit while the criminal case is ongoing, acknowledge it can’t be heard yet, but argue for a stay instead of dismissal in order to preserve their statutory right to sue.

      The have a good chance of succeeding and even if not that is a lot of lawsuits the government and district courts will have to deal with.

  4. In the Sheriff Arpaio case, I am wondering why the 9th Circuit didn’t declare the appeal moot. Once a person is pardoned, there is no longer a live case or controversy regarding the underlying conviction. If either side wins, they don’t gain anything except the mental and emotional satisfaction of having been right – precisely the sort of consideration that’s long been found insufficient to confer standing. Nothing else is at stake.

    Accordingly, on the merits, I would have dismissed the appeal entirely, just like the district court did. A special prosecutor would appear to have no stake in the matter at all.

    A very analogous situation, in my view, would be a court appointing a special counsel for a defendant who has pled guilty to continue deciding whether he did the crime, despite the fact that the continued litigation would have no effect on his legal guilt or sentence. The inability of courts to alter the legal consequences means there is no live case or controversy, and hence litigation should stop.

    1. It’s not moot, Arpaio is attempting to have the conviction vacated because of the pardon. The district court refused to vacate the contempt conviction.

      What I don’t get is why the circuit court thinks they need an attorney to argue in favor of the conviction in the face of a presidential pardon. They should have just vacated the conviction themselves.

      1. Pardons don’t automatically vacate convictions. If they did this would be unnecessary.

        To me this should turn on the way criminal contempt happens. I’m not positive but don’t judges have the authority to enter a conviction for criminal contempt right away if it happens in their presence in the courtroom? If so then the separation of powers argument is blurred because we already treat it differently. If it requires the request by the prosecution then this would violate the separation of powers.

        1. “I’m not positive but don’t judges have the authority to enter a conviction for criminal contempt right away if it happens in their presence in the courtroom?”

          My understanding is no, they can’t. They can impose civil contempt penalties right away, but there are significant limits on how long they can have you held on civil contempt if you refuse to relent.

          With criminal contempt, as with all criminal charges, the accused is entitled to a jury trial. Because of that a judge has to refer criminal contempt charges to a prosecutor.

          1. I looked it up. It appears that the question is whether it is direct (happens in front of the judge) or indirect. Direct can be dealt with summarilly

            In re Chaplain, 621 F.2d 1272, 1275 (4th. Cir. 1980), cert. denied, 449 U.S. 834 (1980)
            (“The power [to summarily punish] rests on the proposition that a hearing to determine guilt is not
            necessary when conduct occurs in the presence of a judge who observes it, and when immediate, action
            is required to preserve order in the proceedings and appropriate respect for the tribunal.”).


            Beatty Chadwick might disagree.

  5. “Instead, courts must “assume that [Appellants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct”

    It would be nice if I were shocked that three COA judges would write something like this in a pre-conviction context.

    1. It wasn’t in a pre-conviction context, it was in the context of dismissing a civil suit for mootness.

      A bunch of non-capital defendants sued the public defenders office for putting their cases on a waiting list due to lack of funding.

      The defenders basically conceded the case, because “yeah it’s unconstitutional, but what can we do”.

      At which point, the state stepped in and handed the public defenders a bunch more money and then argued that mooted the case.

      The plaintiffs appealed on the grounds that the new money would eventually run out and the unconstitutional conduct would be repeated and thus their case is exempt from the void for mootness doctrine.

      The court is saying that “we have to assume that the plaintiffs won’t commit new crimes in the future, so the state won’t have the opportunity to violate the plaintiff’s rights again. Therefore the case is still moot as to these plaintiffs.”

      1. The appellants were accused of crimes. There are plenty of good reasons that capable of repetition yet evading review doesn’t apply, but the op claims that, for them to be accused of crimes again, “Appellants would need to violate the law again, be apprehended again, and be placed on a waitlist while in pretrial custody again.”

        This misunderstands our justice system in a way that should disqualify them from being judges.

        1. “The appellants were accused of crimes.”

          Were being the operative word. My understanding is that their criminal trials proceeded and are over with at this point.

          “This misunderstands our justice system”

          In misunderstands the way it really works, it’s not quite so far off from how it “should” work. Many judges, including several of the Supreme Court justices like to pretend that when it comes to our justice system, the gap between is and ought is much smaller than it really is.

          1. The point is that one doesn’t need to violate the law to be placed in pre-trial custody. That’s why they call it “pre-trial”.

  6. 1500 hours to learn to do hair?
    Do the math: that’s almost a bachelor’s degree’s (8 semesters at 15 credits per) worth of class time.

    1. No, 1500 hours to learn to be a cosmetologist. They don’t actually teach you how to do hair. You have to learn that separately.

  7. Am I the only one who thinks that using the Eighth Amendment as a vehicle to prevent the homeless from being punished for sleeping in public is going the long way round?

    The obvious right grounds would simply be that, if going to a shelter is impractical for such a defendant for any reason, then compliance is impossible, and no law can validly require the impossible.

    But I’m sure this is so rational and straightforward that no judge will ever accept it. It would put too many lawyers out of work. ;-b

    1. Well, California Supreme Court unanimously found that a law being impossible to comply with is not reason not to enforce it.

      I don’t see why the same courts wouldn’t find that the impossibility of getting access to a shelter was an insufficient reason to prevent the arrest of a homeless person.

  8. Regarding the death penalty and Washington State, I read through the analysis am disappointed they didn’t analyze for income, or if the individual had a public defender. I don’t think they’ve done enough rigor yet to conclude race, and not a factor that correlates with it, is the cause.

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