The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Please enjoy the latest edition of Short Circuit, a weekly feature from the Institute for Justice.
- Family of man shot and killed by gov't agents sends wrongful death claim to FBI. Yikes! Actually, ICE agents killed him. The family sends claim to ICE on July 24; it arrives on July 28 at 7:22 p.m., the last day of two-year deadline to file, but agents do not come into actual possession of the mailing until August 1. District court: Which is too late; the family can't sue. First Circuit: Maybe it can.
- Allegation: NYC cop forces drunk driving suspect into cell, slams his head into brick wall, metal bars, leaving him bloody and unconscious. Officer: Didn't do that; his injuries were self-inflicted. Jury: The officer used excessive force, but no damages need to be paid. Second Circuit: Which is seemingly inconsistent, but could be the jury thought the officer used excessive force maneuvering the suspect into the cell but didn't think the officer bashed his head or caused his injuries. No need for a new trial.
- In 2016, Boyertown, Penn. school district adopts policy permitting transgender students to use the bathrooms and locker rooms for the sex with which they identify. Other students: Which violates our right to privacy. District court: No need to enjoin the policy while challenge to it goes forward. Third Circuit (30 minutes after oral argument): Affirmed. Written opinion to follow.
- Career offender gets caught with lots of marijuana; he skips the country, gets married and has child in Thailand. He's brought back, given 20 years. Offender: My co-conspirators got only five years; my sentence is cruel and unusual. Fourth Circuit: We have misgivings about long sentences for marijuana, but the issue wasn't preserved for appeal, and your co-conspirators aren't career offenders.
- Allegation: Virginia law traps low-income motorists in a catch-22; failure to pay court fees automatically results in the suspension of one's driver's license, which frustrates plaintiffs' efforts to earn the money necessary to pay the fees. (Study: One in six Virginia drivers has a suspended license thanks, in part, to court debt.) District court: The suit is barred on several procedural grounds, including the Rooker-Feldman doctrine. Fourth Circuit: None of which are appealable. Maybe amend the complaint? Dissent: The suit should not have been dismissed. (IJ amicus: Federal courts undermine constitutional rights by their overly aggressive application of Rooker-Feldman.)
- Allegation: Border Protection agents detain U.S. citizen returning from Mexico. After a frisk, drug doggie sniff, and visual inspection of her private parts yields no evidence of drugs, she is taken handcuffed to El Paso, Tex. hospital where X-rays also reveal no drugs. Without her consent, two doctors and two nurses probe her cavities: no drugs found. Fifth Circuit: She can't sue the doctors or nurses.
- Allegation: Madison County, Ky. jail officers beat up arrestee, causing nerve damage that will require surgery. Sixth Circuit: His suit should not have been dismissed. Several officers' on-camera jokes about being fired or indicted add an "unpleasant gloss" to the case.
- Detroit elementary school principal receives kickbacks for allowing contractor to short the school of supplies. She's convicted, sentenced to two years. Principal: I wasn't allowed to present evidence at trial that, in addition to massages, I spent the kickbacks on fixing the school's roof, among other school-related things. Sixth Circuit: Conviction affirmed.
- Allegation: Suicidal pretrial detainee spends months in Brevard County, Fla. jail crammed barefoot in 9-by-15 cell exposed to the urine, feces, semen, blood, and vomit of up to seven cellmates. Eleventh Circuit (over a dissent): Qualified immunity for the officer in charge; such conditions do not violate the Eighth Amendment, and, even if they did, the officer wouldn't have known that. Moreover, plaintiff didn't show that the officer was aware of said conditions.
- Informant testifies against drug suspect, who's convicted in 2004. He appeals unsuccessfully. Yikes! In 2011, prosecutors disclose information (which they'd purportedly just learned) that could have been used to cast doubt on the informant's testimony. Eleventh Circuit: We should reconvene en banc and overturn the precedent that prevents the suspect from pursuing a second appeal.
- Breaking with the Fourth and Ninth Circuits, the Eleventh Circuit holds: The gov't can seize any and all travelers' electronic devices at the border and undertake comprehensive searches of said devices without any individualized suspicion of wrongdoing. (We discussed the Fourth Circuit's ruling on the podcast.)
- Defense attorney has sex with two clients while they are detained in Duval County, Fla. jail in exchange for reduced legal fees, money. Florida Bar: We recommend suspending his license to practice law for 18 months. Florida Supreme Court: No, he's disbarred.
- State law from 1967 requires California's table-grape growers, who believe their grapes are superior in quality and price to run-of-the-mill grapes, to pay for generic grape advertising. Unconstitutional compelled speech? California Supreme Court: No, it's government speech, so the state's constitutional protections for speech do not apply. (NB: The Ninth Circuit reached the same conclusion under the First Amendment in 2009.)
- In 2016, the FDA promulgated a 499-page "Deeming Rule" for cigars, which, among other things, bars new products from the market without prior FDA approval, which is costly and cumbersome to obtain and will, plaintiffs say, effectively bar smaller manufacturers from the field. District court: No need to address that, as the new Administration may revoke the requirement. But a separate provision requiring health warning labels on cigar boxes and advertisements does not violate the First Amendment.
In 2014, Pagedale, Mo. code enforcement officers handed out two tickets for every household in the city for violations like tall grass, peeling paint, sagging pants, and front-yard wading pools. Last week, in response to an IJ lawsuit, the city agreed to cease, in the words of the St. Louis Post-Dispatch, "preying on citizens" with such "contrived" citations. Read more here. This week, IJ filed a new federal lawsuit against Doraville, Ga. officials who "prowl the streets with iPads, ready to document the slightest infraction," like cracked driveways and improperly stacked wood, seeking to generate revenue. Read more in Curbed.