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.)
A dirty haiku: The state took Chad's dirt; Does it owe him for his hurt? For that, read the cert!
- U.S. military contractors open fire on crowd in Baghdad, killing or wounding 31 civilians. In one joint trial, three contractors are convicted of a slew of non-murder crimes and sentenced to 30-year sentences; another contractor is convicted of first-degree murder. D.C. Circuit: The murder conviction is overturned; his trial should have been separate from that of the other codefendants. Also—over a dissent—the latter's 30-year sentences are cruel and unusual and must be reconsidered.
- Congregation of Newport, R.I. synagogue (many of whose members fled the Spanish Inquisition) dissipates after the Revolutionary War; a New York synagogue steps in to maintain the vacant temple. Can the now-revived Newport congregation sell the temple's centuries-old silver and gold rimonim (ritual objects valued at over $7mil)? District court (recommended reading): Indeed. First Circuit: No, the New York synagogue owns them.
- The feds mistakenly hold American citizen in immigration detention without access to a lawyer for more than three years. Can he sue? 'Fraid not, says the Second Circuit; the gov't messed up, but he filed suit too late. Dissent: It's not clear he's time-barred, and how was he supposed to know? (News report: This scenario is apparently not uncommon.)
- In exchange for identifying defendant as murderer, key witness expects prosecutor's help obtaining lenience on her own unrelated criminal charges. She denies this on the stand, and the prosecutor vouches for the lie. The defendant is convicted and spends nearly 20 years in prison. Third Circuit: New trial or let him go.
- Allegation: Husband of suicidal woman arrested for public intoxication begs Young County, Tex. jailers to hospitalize her; the arresting officer's report notes she'd likely ingested alcohol and seven types of prescription pills. She does not receive medical attention and remains in jail, where she dies in the middle of the night. Fifth Circuit: Perhaps her family can sue over whether county policies caused her death, but (over a dissent) they cannot sue over the jailers' inattention.
- Lawyer falls on hard times, approaches known drug dealer and offers to launder his ill-gotten gains—imitating a scheme he'd seen in the TV drama Breaking Bad. Yikes! The drug dealer is in fact an informant. Sixth Circuit: Conviction affirmed.
- Flint, Mich. officials provide residents with drinking water that is loaded with lead and disease. The problem is immediately apparent, but state and local officials take years to fix it. Can residents sue? District court: No. Sixth Circuit: In fact, the federal Safe Drinking Water Act does not preempt their constitutional claims.
- Allegation: Nashville, Tenn. officer's false report results in bogus charges (belied by dashcam video) against motorist. District court: Can't sue over that. Sixth Circuit: Reversed. We recently created an exception to the rule that witnesses who lie to the grand jury are protected by absolute immunity for situations like this, where the alleged liar is law enforcement and the lie is in an arrest report (or something similar) rather than grand-jury testimony.
- South Bend, Ind. officer happens upon recordings of police official making inappropriate remarks. She passes them up the chain of command; she's fired. City Council members demand to listen to the recordings. To prevent that, "the city" sues the Council. Seventh Circuit: Which is not a thing that can happen. Whether the recordings must be turned over is a question for state court.
- Man has non-work-related nail-gun accident, resulting in four-inch nail lodged in his head. After lengthy medical leave, he returns to work (installing water meters, among other duties) but has numerous "worrisome" difficulties a neurologist ascribes to his brain injury. He's fired. An Americans with Disabilities Act violation? Seventh Circuit: His employer must pay him $350k.
- Nebraska law enforcement: We don't publicly release juvenile sex offenders' personal information unless, as in the present case, the juvenile was adjudged a sex offender in a different state. This kid (who moved from Minnesota after his offense, at age 11) is fair game. Eighth Circuit: Not so.
- Ten people seek to sue cops after getting arrested during the 2014 Ferguson protests. District Court: They can't sue. Eighth Circuit: Actually, one plaintiff who alleges police beat him, pepper-sprayed him, and held his head underwater—all after he'd been handcuffed—could have a legitimate police-brutality claim.
- Judge Bybee of the Ninth Circuit, "concurring in part and dissenting in part, but frustrated with the whole endeavor," is not keen on the Supreme Court's distinction between elements and means of a crime, which, he avers, makes arriving at consistent, defensible sentencing decisions difficult.
- Idaho corrections worker under investigation for rape is placed on paid leave, during which time he allegedly rapes his girlfriend, who is a coworker. Supervisors see photos of her bruises and her allegations are added to the investigation, but she is denied paid leave. Meanwhile supervisors express support for her boyfriend to other employees (who know he's on leave but not why). A hostile work environment? Could be, says two-thirds of a Ninth Circuit panel; this goes to a jury.
- Allegation: Lander, Wyo. police persuade husband to leave scene of domestic dispute to cool off. He agrees but first heads inside his home to retrieve his shoes. An officer makes to follow, but his path is blocked by the wife, who attempts to shut the door after noting the officer lacks a warrant. The officer throws her aside, breaking her arm. She's arrested. Tenth Circuit: Qualified immunity.
- Nephew takes shotgun out of his vehicle, walks it into uncle's house. Yikes! A passerby tips off Riverton, Utah police, who espy the two sitting on the porch looking "somewhat relaxed" and approach them with guns drawn. The pair cuss at the police, and the nephew is briefly handcuffed until the officers learn no crime has transpired. Tenth Circuit: The officers violated the Fourth Amendment; the nephew gets $1 in damages.
- Lawyer: Gay marriage is an affront to the Constitution that harms my property interests. The correct course of action is to sue the five Supreme Court justices who ruled same-sex marriage is a fundamental right. Eleventh Circuit: Nope.
- Arizona officials approve California ranch's application to use cattle-brand design, though the exact same design is already in use in the state by an Arizona ranch. Officials: Which is fine; the California ranch will brand a different part of their cows. Arizona Supreme Court: It is not fine; so says the plain language of the relevant statute. Justice Bolick, concurring: "I trust that … our constitutional separation of powers remains vibrant, notwithstanding the extent to which the United States Supreme Court has eroded it in the federal context."
Friends, if you annoy the authorities and they arrest you in retaliation, they are not going to say they arrested you in retaliation (because that would be admitting to violating the First Amendment). Rather, they'll come up with a pretext. We all violate vague or rarely enforced statutes every day, so this presents no difficulty. What is difficult, however, is for you to get courts to look past the pretext when you sue over said retaliation. Click here to read an IJ amicus brief urging the Supreme Court to take a hard look at the issue. (The gentleman in the instant case was a prominent critic of Riviera Beach, Fla. officials' plan to seize thousands of homes via eminent domain. He says that in addition to arresting him on a pretext, city employees followed him around, took photos of him in his home, and ticketed him for failing to muzzle his 10-pound dog on walks.)