The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
(Here is the latest edition of the Institute for Justice's weekly Short Circuit newsletter, written by John Ross.)
It's one of the most vexed questions in originalist constitutional interpretation: What's a judge to do when inquiry into original meaning doesn't yield a clear answer? In their new paper, "The Letter and the Spirit: The Judicial Duty of Good-Faith Constitutional Construction," Professor Randy Barnett and Assistant Director of the Center for Judicial Engagement Evan Bernick undertake to answer it. Download the first of a projected three-paper series (and projected book) on Good Faith Constitutionalism "while it's hot"!
Today, the Supreme Court considers whether a federal agent who shot and killed a teenager across the Mexican border gets qualified immunity. We discussed the Fifth Circuit's en banc ruling on the podcast (starting at 5:10).
- Inmate slips away from Armstrong County, Penn. jail, holes up at home of acquaintance who lives nearby (and who doesn't know he's an escapee), and then murders the acquaintance's girlfriend. Third Circuit: County officials, who had placed the inmate under light supervision, could not have foreseen a specific threat to the victim; her estate can't sue.
- Two Moncks Corner, S.C. detectives disapprove of superior officer's rough treatment of suspects, urge man (who allegedly took a knee strike to the groin from the officer) to file a complaint, lawsuit. The detectives are forced to resign. Unconstitutional retaliation for protected speech? The police chief is entitled to qualified immunity, says the Fourth Circuit.
- Former employees of South Carolina nursing homes sue, alleging, based on statistical sample of patient records, that the nursing homes defrauded Medicare. The DOJ declines to join the suit, but vetoes a proposed settlement. Fourth Circuit: Which DOJ has unreviewable authority to do, so keep litigating. As for the statistical sampling data, we won't review whether that is okay to use until after trial.
- Fifth Circuit: Henceforth, it is clearly established that the First Amendment protects the right to film the police, subject to reasonable time, place, and manner restrictions. That not having been the case in 2015, the officers in the instant case are entitled to qualified immunity for handcuffing man who was filming a Fort Worth, Texas police station and declined to show ID—at least on the man's First Amendment claims. His Fourth Amendment claims go to a jury.
- Van Buren County, Mich. officials foreclose on tax-delinquent properties, sell them at auction for considerably more than what's owed, and decline to turn the surplus (nearly $200k in one instance) over to the former owners. Takings sans just compensation? Sixth Circuit: The suit should have been brought in state court. Dissent: And Michigan law says it should go in federal court; "we have lost our constitutional bearings."
- Federal mine-safety inspectors inspect mining-equipment repair shop, issue violations for a dirty bathroom, among other things. Company: Our shop is not a mine; the inspectors don't have jurisdiction. Secretary of Labor: The shop has mining stuff in it, so they do. Sixth Circuit: That is not a reasonable interpretation of the relevant statute.
- At board meetings, Jackson County, Mich. commissioners direct attendees to rise, bow their heads, and listen as a commissioner gives a Christian prayer. A non-Christian files suit; commissioners call him a nitwit and his suit "an attack on Christianity and Jesus Christ, period." Sixth Circuit (over a dissent): What we have here is a violation of the Establishment Clause.
- To lower their tax burden, owners of family business transfer money to their sons' Roth IRAs by dint of transactions that are specifically authorized in the tax code. IRS: Congress may have authorized it, but it's improper avoidance of IRA contribution limits all the same. The family needs to pay up. Sixth Circuit: They do not.
- Man calls 911, rants, threatens to kill his family. Bowling Green, Ky. police locate him walking along train tracks. He does not threaten the officers, but neither does he obey their commands. He urges the officers to shoot him. One does; he dies. Sixth Circuit: No qualified immunity.
- Iowa State University officials typically allow student groups to use the school's trademarks on T-shirts with minimal fuss but, after complaints from the governor's office, reject multiple T-shirt designs proposed by group that advocates for marijuana legalization. Eighth Circuit: Which is unconstitutional viewpoint discrimination.
- Federal agents raid family home of suspected antiquities traffickers in southern Utah. (One suspect kills himself the following day. The feds' informant expresses remorse for his role in the sting and kills himself months later.) Does the sheer number of agents who participated in the raid by itself constitute excessive force? That might be a viable claim in some other case, says the Tenth Circuit, but not this one. (Click here for some long-form journalism on the case.)
- In a blog post, doctor strongly suggests another doctor's method for treating Alzheimer's and other ailments (injecting a drug used to treat arthritis along patients' spines) is quackery. Libel? Eleventh Circuit: No, the purported quack's suit is a Strategic Lawsuit Against Public Participation.
- In 2014 and 2015, an Eleventh Circuit panel issued three decisions upholding a Florida law that made it a crime for doctors to ask patients whether they own firearms (popularly called Docs v. Glocks). The full Eleventh Circuit has now reversed (as we urged it to do via an amicus and a New York Times op-ed).
- And in en banc news: The Second Circuit will not revisit a ruling that, in the eyes of the dissent, enables prosecutors to say, "Show me the man and I'll find you the crime. Neither will the Fifth Circuit, despite six dissents, reconsider its dismissal of a challenge to the feds' designation of 1,500 acres of private land as critical habitat for the dusky gopher frog. The Fifth Circuit will, however, reexamine its denial of qualified immunity to an officer whose report led to an innocent man with the same name as a suspect spending 16 days in jail. Likewise, the D.C. Circuit will reevaluate its holding that the CFPB's single-director structure is unconstitutional (we discussed the CFPB case on the podcast) and, separately, reassess its holding that the SEC's administrative law judges need not be appointed by the president. (Click here and here for the D.C. Circuit orders.)
Charlestown, Ind. officials want to bulldoze Pleasant Ridge, a neighborhood of 350 homes, so a private developer can build upscale housing. To that end, officials blanketed the neighborhood with citations for trivial code violations like chipped paint and torn window screens. At $50 per violation, per day, the fines quickly ran into the thousands of dollars—in many cases before owners had even received notice in the mail. Officials offered to waive the fines, however, if property owners sold to the city's preferred developer—for far below the tax-assessed value of their homes. Last week, Pleasant Ridge residents joined forces with IJ to put a stop to the city's illegal plan. Read more here.