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.
Ratified 150 years ago, the 14th Amendment has been called America's "Second Founding." On September 21, IJ and the Liberty and Law Center at Antonin Scalia Law School will co-host a symposium to celebrate, discuss, and debate the Amendment's dramatic history, contemporary significance, and contested future. Please join us! The event features an all-star lineup of historians, legal scholars, and federal and state appellate judges—and a re-argument of the Slaughter-House Cases. Register here.
- In 2015, the EPA released new regulations for the storage of hundreds of millions of tons of toxic coal ash in hundreds of massive waste pits around the country, many of which do not have sufficient lining to prevent groundwater contamination. D.C. Circuit: The rule, which permits insufficiently lined pits to keep accepting waste (until operators are unable to successfully repair a leak), is arbitrary and capricious.
- After a change in administrations, the EPA enacted the "Delay Rule," delaying enforcement of the Obama-era "Chemical Disaster Rule" that required safety audits of chemical storage facilities, better communication between such facilities and local first responders, among other things. D.C. Circuit: Which both exceeded the agency's authority and was arbitrary and capricious. Not to mention, it "makes a mockery of the statute."
- Advocacy group submits proposed subway advertisement proclaiming a First Amendment right to draw the Prophet Muhammed; the ad itself depicts the Prophet Muhammed. In response, D.C. transit authority adopts a policy banning "issue-oriented" advertisements. D.C. Circuit: The transit authority's policy seeks to avoid controversy, but it has swapped controversies for lawsuits. We remand to consider whether the policy provides the kind of objective, workable standard required by the Supreme Court's recent Mansky decision.
- ATF agents point guns at father and his 17-year-old son outside Coto Laurel, P.R. post office, detain them for 20 minutes. Yikes! The shipment of illegal firearms that agents were monitoring was picked up by someone else. Can father and son sue for false imprisonment? The First Circuit says no.
- Three defendants are jointly tried and convicted of 2000 murder of Harrisburg, Pa. cab driver. Third Circuit (2013): One defendant gets habeas; improper evidence (involving jailhouse informants) was admitted at trial. (He's released in 2013.) Third Circuit (2018): But the second defendant, who challenged his conviction on the same grounds, doesn't get habeas because of a 2004 Supreme Court holding (that the 2013 Third Circuit panel did not consider) mandating that result.
- Newark, N.J. officials did not violate taxi medallion holders' constitutional rights by allowing the value of taxi medallions to drop (from over $500k in 2013 to under $220k in 2016) or by regulating ridesharing companies differently than taxi companies, says the Third Circuit.
- Allegation: Coraopolis, Pa. officer investigating sex assault takes photos of victim with his personal cell phone, touches her, badgers her into unnecessarily revealing her vagina, fails to document the clothing she provided, and lies about his conduct. District court: Qualified immunity. Wasn't clearly established that kind of thing is unconstitutional. Third Circuit: Reversed.
- Allegation: Harris County, Tex. officer tases half-naked, incoherent man (5'3″ and 154 lbs.) who ignored officers, wandered away from them on frigid night. The man falls, fractures his skull, suffers life-threatening brain damage. Police say he adopted a fighting stance, but there's no video; they didn't turn on their cameras. Fifth Circuit: The officer who fired the taser violated the man's Fourth Amendment right to be free from excessive force. But the man can't sue. Wasn't clearly established that kind of thing is unconstitutional.
- Teen is imprisoned for 16 months awaiting trial for murder. The jury acquits after 29 minutes of deliberation. Can the then-teen sue a San Jacinto County, Tex. officer who allegedly omitted and misstated key facts on an arrest warrant affidavit? Yes, says the Fifth Circuit, and with great dispatch, as this has been pending for over seven years. (Click here and here for more on the case from the National Registry of Exonerations.)
- "Handcuffs are supposed to hurt." So says a Michigan police officer, when he arrests a driver during a roadside stop. Driver sues, claiming the cuffs crushed a nerve. Sixth Circuit: Our precedent put the officer on notice that handcuffing violates the Fourth Amendment if an arrestee complains the cuffs are too tight, the officer ignores the complaint, and the arrestee suffers injury. No qualified immunity here.
- Seasoned Louisville, Ky. criminal defense attorney is indicted for failing to file tax returns, represents himself for 21 months (between indictment and trial). On eve of trial, he asks for continuance so he can find counsel; the judge denies it. He's convicted of failing to file tax returns, sentenced to three years. Sixth Circuit: There's no evidence in the record he was ever informed of his right to counsel. New trial.
- Man serves 21 years of 35-year sentence for nonviolent drug offense, is released early based on new sentencing guideline. He comports himself admirably for the two years he's on supervised release (as he did during his incarceration). But prosecutors appeal and win reversal of his sentence reduction. Sixth Circuit: Which is the correct legal outcome. "Executive clemency provides [him] another avenue for relief." (Click here for Kim Kardashian's take.)
- USA Gymnastics national team physician molests dozens of children over 20-year period. Separately, he amasses collection of over 37,000 images and videos of child porn. Sixth Circuit: No reason to reconsider his 60-year sentence for the child porn. (Via Sixth Circuit Blog.)
- Man takes generic antidepressant, commits suicide. His widow sues not the manufacturer of the generic drug, but the manufacturer of the brand-name version, Paxil, which was responsible for the warning label. Widow: The harm wasn't taking the drug; the harm was that the warning label failed to warn the drug was linked to suicide in adults. Drugmaker: We tried to include that on the label, but the FDA wouldn't let us. Seventh Circuit: Case dismissed.
- Criminal defendant starts to speak at a sentencing hearing, but his lawyer tells him to be quiet. Later, with new counsel, defendant argues district court made various procedural errors at the hearing. Seventh Circuit: These claims were waived, as the lawyer did not raise them. It's irrelevant that the lawyer stopped the defendant from speaking, as it's not the court's job to interfere in the attorney–client relationship.
- In wake of the housing crisis, the Federal Housing Finance Agency, a new federal agency that "supervises" lenders Fannie Mae and Freddie Mac, forces them to turn their profits over to the U.S. Treasury instead of investors. Investors: We want our money back! The FHFA's "net worth sweep" regulation is unlawful. Eighth Circuit: No, it's lawful. Judge Stras, concurring: The investors "make a compelling case that the FHFA … has grown into a monster. But judges are not superheroes; we cannot run to the rescue every time danger looms."
- Medford, Ore. police identify bank robbery suspect. They have no address for him on file, but they learn his girlfriend has a no-contact order against him. They search her home without a warrant (and, it is presumed, without her consent) and find their man. A Fourth Amendment violation? Not a bit of it, says the Ninth Circuit. He didn't have a reasonable expectation of privacy at her place. But, in a separate order, his conviction is reversed for unrelated reasons.
- After serving 17 years in prison for a murder she did not commit, woman sues LAPD detective for withholding evidence that the prosecution's star witness was a serial liar who had already been deemed an "unreliable informant" five years before the murder trial. Detective contends that no reasonable officer would have understood that disclosure of this evidence was required. Ninth Circuit: Well then you and I have different understandings of the word "reasonable." (Click here for more on the case from the National Registry of Exonerations.)
- Railroad tank car carrying harmful chemicals springs a leak, permanently disables workers. They try to get different jobs at the railroad company but are rejected from all (more than 20 each). They say these rejections are discriminatory and file claims with the EEOC. Railroad company: Aha! The court can't hear most of this because you didn't file a separate EEOC claim for each rejection. Tenth Circuit: Not so much. Even though our old precedent said that, it was wrong, so (upon polling the rest of the court but without formally going en banc) we're going to overrule it. (The court also has some words (and imposition of costs) on why attorneys shouldn't skimp on the appendix.)
- Disney theme parks accommodate individuals with cognitive disabilities by allowing them to skip the line for all rides with wait times of less than 15 minutes (which is most rides) and to schedule appointments at rides with longer wait times. They are never required to wait in lines. Parents (in 30 separate lawsuits): Not good enough. Our kids still have meltdowns. Eleventh Circuit: Disney might not be complying with the ADA.
- Alabama abortion law prohibits dismembering living 15- to 18-week-old fetuses; rather, fetuses must first be killed in utero and then dismembered and extracted. District court: The state's proposed methods of fetal demise are not feasible. The law is unconstitutional. Eleventh Circuit (reluctantly, and with two concurrences): That's so.
- Activists host sit-down weekly dinners with free food in public park where homeless tend to congregate. Fort Lauderdale, Fla. officials impose permitting scheme that restricts such meals. Eleventh Circuit: The meals are expressive conduct; the activists' constitutional claims should not have been tossed.
- "Consider two people, one who has money and the other who does not. They are arrested for the same crime at the same time under the same circumstances … [and] would have the identical bail amount …. The person who has money pays it and walks away. The indigent can't pay, so he goes to jail." Which is a serious deprivation of liberty, writes Judge Martin, dissenting from the Eleventh Circuit's rejection of a preliminary injunction over Calhoun, Ga.'s money bail policies.
Since 1873, Maine school districts have paid for students who live in towns too small to support a public school to go to a school of their choice, whether private or public, in state or out of state. But parents have not been allowed to select religious schools for their children since 1980, which violates equal protection and religious freedom, argues a new IJ lawsuit on behalf of three families. Last year, the Supreme Court, in a 7–2 decision, ruled that excluding religious groups from public programs for which they are otherwise qualified "is odious to our Constitution … and cannot stand." Maine's discrimination against religious families cannot stand. Click here to read more.