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.
This fall, the Supreme Court will consider whether the Eighth Amendment's Excessive Fines Clause applies to the states. That is, does the federal Constitution prevent state and local officials (rather than just federal ones) from imposing excessive fines disproportionate to the gravity of a given offense? The Indiana Supreme Court recently said no and permitted police to forfeit a $42,000 vehicle because its owner (who obtained the vehicle with legal funds) sold a few hundred dollars' worth of drugs. Click here to read IJ's just-filed merits brief (skip ahead to page 37 for stirring reading on why the Fourteenth Amendment's long-neglected Privileges or Immunities Clause incorporates the Excessive Fines Clause against the states).
- In 1980, man breaks into Lorton, Va. federal prison, murders inmate. D.C. Circuit: Officials unlawfully delayed his parole hearing for a separate 1980 murder in D.C. If paroled, he'll begin serving another life sentence for a third 1980 murder in Maryland.
- SWAT team raids Casco, Maine home of woman whose husband was suspected to be a felon in possession of firearms. Yikes! Turns out he's not a felon. First Circuit: She sought to challenge the validity of the search warrant too late in the litigation, and there's no cause to revisit her unsuccessful excessive force claim. Editorial staff: But there's always cause for a Judge Selya vocab quiz: anent, limning, and pellucid.
- Philadelphia landlord buys home in 2009, declines in 2015 to renew lease of longtime tenants, who receive federal enhanced voucher rent assistance. (The family's now-deceased matriarch moved in in 1982.) Third Circuit (2017): Not a problem. Federal housing law does not bind landlords to perpetual leases. Third Circuit (en banc, over a dissent): Reversed. No evicting enhanced voucher tenants without good cause.
- Disabled Philadelphia woman wants to leave her walker in lobby of her condo building when she goes out; the building's staff would prefer to store it behind the concierge desk and fetch it when she returns. Third Circuit: The building is not violating the Fair Housing Amendments Act.
- Fifth Circuit: Texas medical officials' search of a doctor's records without first giving the doc a chance to challenge their subpoena violated the Fourth Amendment, but the doc can't sue because there's no precedent saying so. (There is now, though.) Judge Willett, concurring dubitante: "I add my voice to a growing, cross-ideological chorus of jurists and scholars urging recalibration" of qualified immunity.
- After humble career, septuagenarian widower spends most of his time in Toledo, Ohio bars. Holy cow! He's worth $2.2 mil. When he dies, tenants in duplex he owned conspire with lawyer to draft fake will, obtain the money (which should have gone to his grandnephew). The plot's undoing? One tenant made 171 withdrawals in amounts less than $10k, some of them $9,999, which is the sort of thing the IRS notices. Sixth Circuit: The district court did not err in permitting a handwriting expert to testify; but some convictions and sentences need revisiting. (Click here for local news coverage of the case.)
- And now a brief historical aside, courtesy of the Sixth Circuit: When the Studebaker company collapsed in 1963, closing its South Bend, Ind. plant, it defaulted on its pension obligations to over 11,000 autoworkers, setting in motion a chain of events culminating in ERISA, the 1974 federal law that regulates private pension and health funds.
- Erlanger, Ky. police pull over minivan with obstructed plates, arrest mom for driving on a suspended license, detain rest of the family for an hour while the drug doggie comes. (New entry for the "things that police think are indicative of drug activity" file: having wrenches, screwdrivers, and other work tools in one's minivan.) No drugs found. Sixth Circuit: No qualified immunity for an officer who allegedly, after the drug doggie sniff had been completely, searched 17-year-old daughter's bra before letting her go to the bathroom.
- Allegation: Milwaukee police suspect suspect is not really unconscious, administer sternum rub. The suspect awakes. Nonetheless, he renews complaint that he can't breathe. Police put him in a patrol car, ignore his requests for an ambulance. He dies. District court: No qualified immunity for 11 officers. Seventh Circuit: Back to the district court for an individual analysis of each officer's actions/immunity.
- Allegation: Residents of Niles, Ill. assisted living facility retirement home berate, physically assault lesbian resident. She complains to management, who, rather than protect her, build case to evict her. District court: Can't sue over that. Federal law doesn't make a landlord liable for tenant-on-tenant harassment. Seventh Circuit: It does. The case should not have been dismissed.
- Inmate at Lincoln County, Ark. prison attacks a sleeping inmate, who now has glass eye, walks with cane because of extensive nerve damage. The attack is caught on video and awakens most of the 54-man barracks, but no guard sees or hears it. Victim: Everybody knew the place isn't safe. There are violent attacks all the time. There's one guard for 108 inmates; guards don't have an unobstructed view into the barracks, and they frequently skip their scheduled rounds. Eighth Circuit (over a dissent): Can't sue over that.
- Wells Fargo summarily terminates employees who it determines have been convicted of crimes involving dishonesty (which make them legally ineligible for employment at an FDIC-insured institution). And that policy is a business necessity, says the Eighth Circuit, regardless of whether it creates a disparate impact on African-American or Latino employees.
- The Eighth Circuit makes short work of the Satanic Temple's attempt to challenge Missouri's abortion restrictions, noting that at no point during the lawsuit were any of the plaintiffs pregnant.
- Does printing "In God We Trust" on U.S. currency violate the First Amendment? Or the Fifth Amendment? How about the Religious Freedom Restoration Act? No, says the Eighth Circuit.
- It's cruel and unusual, and so a violation of the Eighth Amendment, for Boise, Idaho officials to enforce the city's ban on sleeping outside against homeless individuals with no alternatives, says the Ninth Circuit.
- In 2014, Oregon voters rejected a ballot initiative that would have allowed residents to obtain drivers' licenses without showing proof of their legal presence in the country. (No such requirement existed until 2008, when it was added to comply with the federal REAL ID Act). Plaintiffs: Voters were motivated by animus against Mexicans and Central Americans; state officials' subsequent refusal to issue such licenses violates equal protection and due process. Ninth Circuit: Case dismissed.
- Man, once a "legit baller" in the NBA, takes out reverse mortgage on his home, dies within a year. His widow (who lives in the home with their minor daughter) does not repay the loan; the lender moves to foreclose. Widow: The reverse mortgage was HUD insured, and HUD is prohibited from insuring loans that allow for surviving spouses to be evicted. Eleventh Circuit (providing link to the man's highlight reel in the footnotes): Yes, but the contract in question allows exactly that; HUD probably shouldn't have insured the loan, but that's not the lender's fault.
Nice! The Texas Supreme Court has granted cert to Patricia Mosley, who appealed an adverse ruling (that will bar her from her occupation if it stands) in precisely the manner an administrative law judge told her to and state rules dictated—only to have her case tossed for being filed in the wrong venue. We say that violates procedural due process. Click here for an IJ op-ed urging cert; click here for an IJ amicus urging cert; or click here to listen to the podcast, wherein we discussed the case.