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Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.

New on the Bound By Oath podcast: Why oh why did the Supreme Court decline to incorporate the Fourteenth Amendment against the states? That and more from Professors Michael McConnell of Stanford Law and Gerard Magliocca of the Indiana University Robert H. McKinney School of Law.

• “Because they share a progenitor, a reliable approach to understanding a James Baldwin novel is to compare it, according to a set of criteria, to another work in his oeuvre. Indeed, a thematic reading of Giovanni’s Room is sure to inform such a reading of The Fire Next Time, and vice versa. Not so, however, with respect to the broad set of phenomena we categorize as agency action.” So writes Judge Wilkins of the D.C. Circuit, ruminating on the difficulties of adjudicating admin law in a case where the court’s jurisdiction hinges on the finality of a challenged agency action.
• Sachse, Tex. officers fire on teen who was holding a gun to his head, which the teen then discharged, severely disabling himself. Fifth Circuit (2015): No qualified immunity. SCOTUS (2016): Vacated in light of a decision in a different case we just released. Fifth Circuit (2018): We had it right. Fifth Circuit, sitting en banc, over five separate dissents: Indeed, no qualified immunity.
• Allegation: San Antonio police arrest man who is sleeping in his car that is parked on private property, file false report so that he is charged with DWI. He spends 16 months in pretrial detention before charges are dismissed for lack of probable cause. Fifth Circuit: He filed his false arrest claim too late; the deadline started running at the time of the arrest. But he can sue over the 16-month detention; that deadline started running when the charges were resolved in his favor.
• To prevent the unwarranted removal of Indian children from their families and tribes, Congress passed a law in 1978 permitting a child’s parents, a child’s custodian, and tribal authorities to intervene in state adoption proceedings, in some cases up to two years after a final adoption decree has been entered. The law also establishes placement preferences for foster care and adoptive proceedings that prioritize Indian families over non-Indian families. Non-Indian families: It violates equal protection to impose special adoption rules based on the race of a child. District court: Race-based classifications get strict scrutiny, and the gov’t hasn’t shown the law is sufficiently narrowly tailored. Fifth Circuit: The law relies on a political classification, not a racial one, and thus gets rational basis review, which it satisfies.
• Citing a “mountain of inculpatory evidence,” the Fifth Circuit declined to stay the execution of Texas man for the murder of a college student. He was executed Wednesday.
• Garland, Tex. vocational school is forced to shut down after the feds seize its funds. School: Which violated our constitutional rights; the feds didn’t give adequate notice, among other things, and we are entitled to damages. Feds: Sovereign immunity bars constitutional claims for damages against us. Fifth Circuit: That’s so. While the Federal Tort Claims Act generally waives immunity for tort claims against the federal government, constitutional tort claims are specifically exempted.
• Louisiana prisoner has his skull bashed in with a combination lock, the third attack in two months in which one inmate attacked another with a lock. The inmate’s mother sues but later substitutes the inmate’s two children, whom she’d just learned of. Prison officials: Too late. The children were the proper parties to file suit under Louisiana law, but they were substituted after the statute of limitations had expired. District court: That’s so. Fifth Circuit: Reversed. The case can proceed.
• After her two brothers are convicted of dealing heroin, a Steubenville, Ohio woman takes to Facebook and shares pictures of and derogatory comments about the “bitch ass snitch” who testified against her kin. Which, the Sixth Circuit affirms, is a federal crime, since it’s illegal to retaliate against government witnesses. (Prof. Volokh suspects the law violates the First Amendment, but the woman abandoned that claim.)
• Allegation: While eating dinner, a frail septuagenarian gentleman learns that his girlfriend’s store is ablaze. He rushes to the scene, sees firefighters struggling to open locked door, and approaches a Baxter, Tenn. police officer to give her the keys. The officer throws him to the ground, and a nearby paramedic beats him for good measure. Wait … what? Sixth Circuit: The paramedic is not entitled to qualified immunity.
• Allegation: Teen driver crosses median, causes accident. As he exits the car, the other driver orders him and his two teen passengers to the ground at gunpoint. Yikes! The other driver is an off-duty reserve police officer with the city of Maryville, Tenn. And any reasonable officer would have known not to point guns at people’s heads in these circumstances, holds the Sixth Circuit. No qualified immunity.
• Can Minnesota force videographers to make wedding videos portraying same-sex marriages in a “positive” light despite the videographers’ asserted beliefs to the contrary? Two-thirds of this Eighth Circuit panel think the First Amendment might stand in the way.
• Mexican national is arrested on drug charges, testifies against two co-conspirators, both of whom are members of the notorious Knights Templar cartel. Fearing he will be tortured and killed if sent back to Mexico, he asks to be allowed to stay. Immigration judge: Request denied. Ninth Circuit: Not so fast—he should have been allowed to have his lawyer at the hearing with the immigration judge. Try again.
• In July, the Trump administration announced a new rule, under which aliens who traveled to the United States from their home country are ineligible for asylum if, on the way here, they passed through a third country and failed to seek asylum there. District Court: The new rule violates administrative law; nationwide injunction. Ninth Circuit: It probably does violate administrative law, but we’ve gotta stop throwing these nationwide injunctions around.
• In which the Ninth Circuit reminds us that land can be deemed Indian country regardless of who holds title to it. So, after digging through 166 years of history, we learn that a one-square-mile plot of land known as Section 36 is within the Chemehuevi Reservation and thus San Bernardino, Calif. police cannot enforce California’s traffic laws against tribal members in it.
• Man is arrested at the border with 30 lbs. of cocaine hidden in a spare tire. But did the feds need to get a warrant before searching his phone “forensically”—that is, using software to download call logs and messages from the phone? The Ninth Circuit says yes; they needed (and lacked) reasonable suspicion that the phone would contain digital contraband. Conviction vacated.
• Allegation: Without announcing himself or giving high school student a chance to drop the gun in his hand, a plainclothes LAPD officer fires into a group of students who were making their way to school. He hits one who wasn’t holding the gun. (He lives.) Turns out it was a toy gun with an orange tip. District Court: No qualified immunity. Ninth Circuit: A jury could find the shooting shocks the conscience, but the officer is entitled to qualified immunity because there’s no case on point putting the officer on notice not to accidentally shoot a bystander. The students can sue the officer over being handcuffed and interrogated for five hours, however.
• “MURDER in the second-degree is NOT a crime of violence??? … ‘I feel like I am taking crazy pills.'” So writes Judge N.R. Smith of the Ninth Circuit, dissenting from his colleagues’ interpretation of a federal law that authorizes heightened penalties for using, carrying, or possessing a firearm in connection with any federal “crime of violence.”
• Allegation: Despite a confession and a mountain of evidence linking man to rape/murder of a 14-year old-girl, Jefferson County, Kan. prosecutors convince him to implicate his younger brother, who is convicted and sentenced to life in prison. Fifteen years later, DNA evidence confirms the original confession, and the younger brother is exonerated. (The older brother, racked with guilt, commits suicide, leaving a note in which he again confesses.) Prosecutor: Even if I fabricated evidence, I have absolute immunity for anything I presented at trial. Tenth Circuit: Ah, but the fabrication did not happen at trial. The case proceeds.
• In 2016, a Colorado presidential elector breaks faith and votes for John Kasich instead of the winner of the statewide popular vote (as required by state law). Colorado removes the elector and nullifies his vote. Did that violate the elector’s constitutional rights? It did, says two-thirds of a Tenth Circuit panel. The Constitution provides presidential electors with the right to vote using their discretion, and states do not have the power to remove an elector or nullify an already-cast vote.
• West Valley City, Utah undercover officer shoots, kills woman. The police dep’t determines the shooting was unjustified and discovers that the officer took cash and a “white powdery substance” out of the evidence room and didn’t return it. He’s fired, appeals, is reinstated, and then voluntarily resigns in exchange for $120k payout. Manslaughter charges against him are dismissed for lack of probable cause. Former officer: I was retaliated against because, during the investigation into the shooting, I told internal affairs that misconduct in the undercover unit was endemic. I’m a whistleblower. Tenth Circuit: Not so.
• Extending one’s middle finger in the general direction of a police officer (at about the distance of a football field) gives the officer reasonable suspicion to conduct a traffic stop, says the Court of Appeals of North Carolina (over a dissent).

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Hitsville: The Making of Motown. Showtime. Saturday, August 24, 9 p.m.

Scene: The crowded, smoky (not Smokey; we’ll get to him in a minute) room in the scruffy Motown headquarters at 2648 W. Grand Boulevard in Detroit (“You don’t get more ‘hood that that,” recalls one company executive), where the label’s quality-control committee is meeting to decide which records to release this week.

Most of the members are indifferent to the disc under consideration. “It doesn’t do anything to me, particularly,” sniffs one. And then that bass line comes up: duh-du-duh, duh-du-duh, and David Ruffin’s voice, pleading even when the lyrics aren’t, “I got sunshine, on a cloudy day…,” and ohmygod, was anybody really thinking even for a fraction of a nanosecond that they wouldn’t release “My Girl” and ohmygod, what if they hadn’t and ohmygod what a moment.

There are hundreds or maybe thousands of moments just like this one—intimate, fascinating, joyful—in Showtime’s Hitsville: The Making of Motown, which is arguably one of the finest music documentaries ever produced.

No label in the world produced more great records than Motown did between its founding in Detroit in 1959 and the move to Los Angeles in 1972, the period covered in Hitsville.

From smoking, sexually charged shouters like Martha Reeves and the Vandellas’ “Heat Wave“to heartbroken torch songs like Smokey Robinson and the Miracles’ “Ooh Baby Baby,”  from the exultation of the Jackson 5’s “ABC” to the feverish paranoia of the Four Tops’ “Standing in the Shadows of Love,” the Motown catalog shattered every social, racial and musical divide in America. Forget Woodstock; Motown was the pounding musical pulse that drove kids wild in the ’60s. It’s an epic tale with a throbbing backbeat, and Hitsville strikes every note.

Certainly it helps that Motown founder Barry Gordy cooperated with the project and even gets a producer credit. (That does not stop the documentary from covering some of the company’s uglier secrets, including Gordy’s tempestuous relationship with Diana Ross.)  His previously unseen personal archives contributed some of the most penetrating moments of the documentary, like the audio tape of that quality-control meeting and film of a private audition by a 10-ish Michael Jackson, already moonwalking, and his brothers.

But Gordy’s literal presence in the documentary is even more important. With his top lieutenant, Smokey Robinson, he’s in almost every scene, narrating if not being interviewed.

He and Robinson reminisce, schmooze, occasionally argue about when or why a record was released, and even make bets on the outcome. (If you’re tempted to join in the action on who recorded “I Heard It Through the Grapevine” first, Marvin Gaye or Gladys Knight and the Pips, be careful.)

After brief stints as a boxer and an auto worker in the late 1950s, Gordy had turned himself into a songwriter of no small skill, with author credits on Jackie Wilson’s “Lonely Teardrops” and Barrett Strong’s “Money,” among others. But his real genius was spotting talent and coaching it.

He tough-loved the young Robinson’s songwriting: “You rhyme stuff pretty well. But your songs, they’re just rambling.” He hired wannabes like Martha Reeves and Norman Whitfield (who later would write and produce many of the Temptation’s psychedelic-era hits) for peanuts as secretaries and gofers, certain that they would eventually show talent, even though nobody else at Motown believed it.

And he kept the label’s flighty kids on track. Marvin Gaye variously wanted to quit singing to play football, become an astronaut, and turn himself into a Frank Sinatra-style crooner. Each time Gordy talked him out of it.

And the late Gaye himself, in an archival interview, explains how Gordy helped him put together his first hit during a chance late-night encounter in the Motown studio. Noodling at the piano, Gaye was trying to write a jazz number. “That’s not gonna sell any records,” Gordy warned him. “Why don’t you put this chord on it, right here?” That was followed, Gaye recalled, by a cascade of “Yeah-yeah-yeahs!” and “Doo-doo-doo-pows!” What emerged by the wee hours was “Stubborn Kind Of Fellow,” Gaye’s first chart hit.

These sorts of musical anecdotes are scattered throughout Hitsville. Robinson, with one hand on the piano hitting notes and another waving in the air illustrating chords, explains how the opening guitar riff of “My Girl” was devised, then relates how each of the song’s layers was added—first the vocals, then the strings, finally the horns. In another scene, he recalls calling everybody in the building into the studio—still-a-secretary Martha Reeves, some Supremes, two Temptations, the Marvelettes—to provide the call-and-response chorus for the Miracles’ song “Mickey’s Monkey,” turning a string of illiterate gibberish (“lum-de-lum-de-li-o”) into street poetry.

There’s so much more: the “charm school” where Motown artists were taught how to walk. (“You do not protrude the buttocks.”) There’s the white sales manager whose ability to “go Sicilian” with slow-to-pay record distributors convinced much of the industry that the Mafia secretly controlled Motown. (It didn’t help that the manager, when told that a swanky restaurant would not admit some of his colleagues because “we don’t serve black people,” growled: “That’s okay, I don’t eat black people.”)

And, painfully, this all leads to the eventual revolt of many Motown artists—including Diana Ross, Marvin Gaye and Stevie Wonder—against the company’s assembly-line structure that Gordy had borrowed from his years at Ford. “You can have the greatest assembly line in the world,” Gordy recalls sadly. “But people are not cars. Eventually they’re going to express themselves outside the system.”

He may have been too heavy-handed. But it’s hard not to forgive a man whose advice defined the best side of the 1960s: “Come on, every guy, grab a girl, everywhere, around the world, they’ll  be dancing, dancing in the street… .“

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On Wednesday, a federal district court in Georgia concluded held that the Obama Administration’s attempt to define “waters of the United States” under the Clean Water Act (CWA), through the so-called “WOTUS” rule, was substantively and procedurally invalid.  This is the second court to reach this conclusion about one of the Obama Administration’s more significant environmental initiatives.

The CWA generally prohibits the discharge of materials into navigable waters without a permit. “Navigable waters,” in turn, are defined as “waters of the United States.” And what are those? That is the question.

In two separate decisions, a majority of the Supreme Court rejected the definition of “waters of the United States” adopted by the U.S. Army Corps of Engineers and Environmental Protection Agency as too expansive. In response (and after a fair amount of dithering in both the Bush and Obama Administrations), the Army Corps and EPA promulgated a new, fairly expansive definition in 2015. This is the so-called WOTUS rule, which has been the subject of multiple legal challenges filed by states, regulated entities, and property rights advocates,

On Wednesday, Judge Lisa Godbey Wood of the U.S. District Court for the Southern District of Georgia concluded that the 2015 WOTUS rule was unlawful. Echoing a prior opinion from a federal district court in Texas, Judge Wood concluded that the 2015 WOTUS rule exceeded the agencies’ statutorily authorized jurisdiction and that the rule was also procedurally invalid under the Administrative Procedure Act because, among other things, the final rule was not a logical outgrowth of the proposed rule published in the Federal Register. A copy of Judge Wood’s 80-plus-page opinion is here.

This is hardly the end of the story though. The Trump Administration is working on its own definition of “waters of the United States” to replace the Obama Administration’s rule. This new definition, much like the Obama rule, will be the subject of legal challenge. Whether this new rule survives will depend, in part, on whether the Trump Administration has learned from its frequent court losses in other environmental cases. Cutting corners in the administrative process is a sure way to see one’s regulatory initiatives overturned in court.

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Since joining the U.S. Court of Appeals for the 5th Circuit in 2017, Judge Don Willett has emerged as a prominent critic of qualified immunity, a controversial legal doctrine that generally shields police officers and other government officials from being sued when they violate citizens’ constitutional rights. “To some observers, qualified immunity smacks of unqualified impunity, letting public officials duck consequences for bad behavior,” Willett observed in the 2018 case of Zadeh v. Robinson. “I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration of contemporary immunity jurisprudence.”

Willett spoke out against qualified immunity once again earlier this week. Writing in dissent on Tuesday in Cole v. Hunter, he faulted the doctrine for formalizing “a rights-remedies gap through which untold constitutional violations slip unchecked.” As Willett put it, “the real-world functioning of modern immunity practice—essentially ‘heads government wins, tails plaintiffs lose’—leaves many victims violated but not vindicated.” Willett made it clear that he thinks the Supreme Court should revisit the doctrine and set things straight.

Two of Willett’s fellow 5th Circuit judges, James Ho and Andrew Oldham, did not like the sound of that. “Some have criticized the doctrine of qualified immunity as ahistorical and contrary to the Founders’ Constitution,” Ho and Oldham wrote in a joint dissent, citing Willett and other critics of the doctrine. “As originalists, we welcome the discussion,” they continued. “But…a principled commitment to originalism provides no basis for subjecting these officers to trial.”

In addition to serving together on the 5th Circuit, Willett, Ho, and Oldham share something else in common. All three judges were nominated and appointed to that court by President Donald Trump. When it comes to qualified immunity, however, Willett and his fellow Trump appointees stand miles apart.

According to Ho and Oldham, Willett’s “one-sided approach” to the issue is far too hostile towards the cops. “Originalism for plaintiffs, but not for police officers,” Ho and Oldham lectured Willett, “is not principled judging.”

Willett replied in a footnote. “As for the sidelong critique of me in the dissenting opinion of Judges Ho and Oldham,” he wrote, “it is, respectfully, a pyromaniac in a field of straw men.” As Willett pointed out, to call for the Supreme Court to rethink this particular doctrine is hardly an anti-originalist heresy. “Justice Thomas—no ‘halfway originalist’—has done the same,” Willett retorted.

So the fight over qualified immunity is heating up significantly at the 5th Circuit. And that’s just counting the Trump appointees.

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