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.
The Texas gov't lied to Patricia Mosley. She followed the instructions of an administrative law judge and appealed an adverse decision in court (instead of before an administrative agency). But Texas officials say the judge and the regulation the judge relied upon (which had been on the books for 14 years) were wrong—and that Patricia Mosley should have known. An appeals court agreed and tossed her case. We say the Texas Supreme Court should reconsider. Read more here.
- "Rumpelstiltskin could spin straw into gold. Rumpelstiltskin, Inc. thought it could do the same for garbage, spinning it into tax credits. The Commissioner of the Internal Revenue Service disagreed. So did the Tax Court. So do we." So writes Chief Judge Garland of the D.C. Circuit.
- In 2008, the Supreme Court held that Gitmo detainees are entitled to meaningful judicial review of the legality of their detention, but since then the D.C. Circuit has rejected every habeas petition it has considered on the merits. So we should probably take one of these petitions en banc, writes Judge Tatel, to examine whether we're adhering to the Supreme Court's instructions.
- Husband (American) and wife (Panamanian) have seven kids. Yikes! Wife has affair (with another Panamanian) resulting in eighth child; the child is born in Panama and is raised as part of the family (which relocates to the U.S.). Is the father the American, in which case the now-former child is an American, or is the father the Panamanian, in which case the now-former child is not an American and can be deported (for a pair of drug convictions)? Second Circuit: Nothing in the statute says you need to be a biological parent to be a parent; American citizenship was acquired at birth, so no deporting him. Concurrence: Moreover, the gov't detaining him for almost two years while we sorted this out on grounds that require "no grand innovation of law" is troubling.
- Police locate car that had been carjacked at gunpoint; the driver leads them on extended high-speed chase through Newark, N.J. He crashes. Driver: I don't deny threatening to kill the officers, but they never shouted any commands at me; they just opened fire. (He's struck at least 16 times. He lives. He didn't have a gun.) Third Circuit: Qualified immunity.
- Four homeless alcoholics challenge a law making it a crime for a "habitual drunkard" to possess an alcoholic beverage. Fourth Circuit: Although the government cannot punish people for what they are, as opposed to what they do, this is not such a case. The state labels people "habitual drunkards" in civil proceedings, not criminal ones, and the criminal prohibition focuses on the conduct of possessing a beverage. It is irrelevant that the prohibited conduct is compelled by addiction, as otherwise much of our criminal law would be called into question. Concurrence: The majority's conclusion is compelled by circuit precedent, but in my view this statute impermissibly criminalizes otherwise legal conduct by persons suffering from a disease.
- Allegation: University of South Carolina student group obtains pre-approval from school officials to hold event and then displays posters with words and ideas that caused controversies on other campuses. Other students complain. (One complainant's friend was "violently triggered" by a swastika and feels unsafe on campus.) Officials summon the group to a 45-minute meeting, where it must "answer for and explain each poster that was subject to a complaint." No further action is taken. Fourth Circuit: No First Amendment problem here.
- Former Marine shoots three Baton Rouge, La. officers dead before being killed himself. An officer grievously injured in the shooting sues Black Lives Matter activists for inciting the shooter. District court: "Plaintiff's Counsel has utterly failed to state a plausible claim." Fifth Circuit: Affirmed. (More on the shooting here.)
- Texas law requires public universities to permit individuals with concealed carry permits to carry concealed handguns on campus, and the University of Texas at Austin bars professors from barring handguns from their classrooms. Three professors: Which violates the First, Second, and Fourteenth Amendments. Fifth Circuit: It does not.
- Supreme Court: Life sentences for juveniles violate the Eighth Amendment. Michigan: Okay, we'll resentence all these prisoners, but we're taking away the good time credits that they earned while serving their life sentences. Sixth Circuit: Which has the effect of increasing the punishment attached to their convictions, and so violates the Ex Post Facto Clause.
- Allegation: Woman is arrested for disregarding jury duty summons, though as a noncitizen she is ineligible to serve. She pulls away from a Lake County, Ill. officer as he handcuffs her and gets charged with resisting arrest as well. She's re-arrested for failing to appear in court on that charge. She declines food, water. Jail staff know immediately she has mental health needs but do not summon medical help. Rather, doctors see her on their routine scheduled visits the following week; she's diagnosed as psychotic, but no further steps are taken. She's transferred to the hospital two weeks into the hunger strike; it's too late; she dies. Seventh Circuit: Some claims against the medical staff should not have been dismissed, but no suing jail officials.
- A poop emoji in a published opinion? What the deuce? The Seventh Circuit upholds sanctions against Cook County, Ill. corrections officer who threatened (via Facebook post) fellow officers not to testify against her in her discrimination suit against the county—and Judge Sykes reprints the threat word for emoji.
- Three women driving in Chicago get embroiled in road rage melee with off-duty cop. (Women arrested, charged, and acquitted of battery of a police officer.) One required surgery from the incident. Jury: Now-former cop is liable for $260k for excessive force. District court: Strike that. Plaintiffs' attorneys' contumacious conduct at trial (for instance, repeatedly questioning witnesses about inadmissible topics and leaking info to the media (and then lying about it to the judge)) and plaintiffs' own bad faith conduct merit dismissal of the claim. Seventh Circuit: Affirmed. (Click here for a news story.)
- Debt collector files lawsuit against debtor on behalf of creditor in appropriate court. While the lawsuit pends, the Seventh Circuit decides a different court is appropriate for such suits and makes the change retroactive. The debtor then sues the creditor and debt collector for filing in the wrong venue, settling with the creditor but winning $200 in damages plus $70k in attorney's fees from the debt collector. Seventh Circuit: Reversed. The settlement moots the debtor's claim against the debt collector.
- Ten Sleep, Wyo. cattle rancher tells his investment broker to close an account. Instead, the broker does some unauthorized trading and loses $2 mil. The broker obfuscates, then resigns from his firm; the firm seeks to recover the $2 mil from the rancher, first from the rancher's other account at the firm (which has a positive balance less than $2 mil) and then sues for the rest. District court: The rancher got defrauded. But he didn't pay sufficiently close attention to his account statements, so he gets reduced damages. Seventh Circuit: He gets full damages. Fraud victims are expected to take reasonable steps only after they become aware of the fraud; they are not required to take precautions that, with the benefit of hindsight, would have avoided the fraud or ended it sooner.
- If you live in Naperville, Ill. and want electricity, you have no choice but to buy it from the city, which has smart meters that collect energy consumption data every 15 minutes and store them for up to three years. Concerned residents: The data reveal when people are home or away, their sleeping routines, and more. Seventh Circuit: No Fourth Amendment problem here. The gov't has a significant interest in providing effective utility services, and the risk of the data being used for law enforcement purposes is minimal.
- Cameron, Mo. prison officers put Ecclesiastical Denzel Washington, an asthmatic inmate, in cell with cigarette smoker, causing asthma attacks. (A rule against smoking in cells is not enforced.) Officers also take away a mask prescribed by medical staff to help Ecclesiastical's breathing. (The warden says he doesn't need it because smoking isn't allowed, and if he witnesses any, he can snitch.) Jury: Pay him $40k in compensatory damages; several prison officials must also pay $71k to him in punitive damages. Eighth Circuit: No need to pay the $71k. (Click here for some journalism.)
- SWAT visits home of Hot Springs, Ark. homeschooling family after 16-year-old (with history of unsubstantiated allegations) accuses his parents of neglect, abuse. His siblings deny the accusations; health officials find them to be happy, healthy. Nonetheless, they're removed from the home for several months, and it takes 21 months to resolve the charges against the parents. Eighth Circuit: The parents can sue the police. (More on the case here.)
- At immigration hearing in 2009, ICE lawyer presents DHS form dated January 13, 2000, purportedly signed by immigrant. Yikes! DHS didn't exist in 2000. The form is forged; a judge relies on it to deny permanent residency status to immigrant, who has U.S.-citizen wife and children and is entitled to said status. (The lawyer is jailed for 30 days, prohibited from practicing law for 10 years.) Ninth Circuit: The immigrant can sue the now-former ICE lawyer.
- Man stands on public sidewalk at least 50 feet from Calexico, Calif. border crossing and snaps a few photos of inspection area; officers handcuff him, threaten to smash his camera when he doesn't delete the photos. Ultimately, he's detained 20 minutes; his camera is returned with nearly all of the photos deleted. Ninth Circuit: Could be a First Amendment violation; this should not have been dismissed.
- Man confesses to shooting, killing Millard County, Utah officer during traffic stop. He recants, says passenger in his vehicle shot the officer. (It turns out the passenger was the officer's brother.) A state court acquits the man of murder, but a federal jury convicts him of the same. (The brother isn't charged; he dies of an overdose.) Tenth Circuit: Conviction affirmed. No error to withhold evidence of the state court acquittal from the federal jury.
- Lawyer attaches a smoking gun email to his complaint, refers to it as an "unofficial version." Turns out the email was altered to add critical text. Lawyer refuses to withdraw the complaint or otherwise correct the issue. District Court: That's sanctionable. Case dismissed with prejudice, attorney's fees awarded. Tenth Circuit: Submitting an altered document is deceitful, and refusing to retract the manipulation is doubly so. Affirmed.
- In which Judge Rosenbaum of the Eleventh Circuit invokes '80s action hero and unconventional problem solver MacGyver in dispute over how tort damages award (arising from doctor causing severe brain damage to infant during delivery, during which the doctor took an eight-minute phone call from his stockbroker) is to be paid.
James Jenkins runs a home-based business publishing rare, out-of-print books, primarily 18th-century Gothic novels, horror novels, and works by early LGBT authors. This summer, he got a letter from the U.S. Copyright Office demanding free copies of virtually every book in his catalog on pain of fines that could reach $100k. Which is a problem! James prints books on demand and has no inventory lying around; complying would seriously damage his business. It's true the law entitles the Copyright Office to free books, but the requirement is a relic of the old copyright system and no longer serves any purpose. So this week, James teamed up with IJ and challenged the constitutionality of the requirement. Read more here.