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.
Friends, please do consider attending our sesquicentennial celebration of the 14th Amendment this Friday, September 21, in Arlington, Va. The symposium, co-hosted by IJ and the Liberty and Law Center at Antonin Scalia Law School, will feature an all-star lineup of scholars, practitioners, and judges—and a re-argument of the Slaughter-House Cases. Attendees will be eligible for 6.5 hours of Virginia CLE! Registration closes Monday. Click here to register.
- Under federal law, children with green cards become U.S. citizens automatically if they are living in the United States in the "legal and physical custody" of a citizen parent. Does this apply to a (now-adult) son whose father became a citizen while the son was in juvenile detention for conspiring to aid terrorists? Second Circuit: whatever criminal charge he may be subject to, the son is an American citizen and cannot be deported.
- Woman who owns and is depicted in 1908 Matisse painting flees Ally-occupied Berlin in 1947, fearing Soviet invasion and leaves the painting for safekeeping with an acquaintance who instead sells it and pockets the money. It changes hands several times until the National Gallery in London buys it in 1979. Woman's heirs: It was stolen; give it back. National Gallery: No. British agency that decides Holocaust era art claims: We can't help; we don't do thefts after 1945. Second Circuit: We can't help; the gallery can't be sued in U.S. courts as it is an instrumentality of Great Britain, and it wasn't the one who stole the painting.
- Four officers arrest man; while his head is pinned to the ground, one of the officers kicks him in the face, breaking his nose and eye socket. Each officer denies doing it or seeing it. (A dashcam does not record.) Third Circuit: He can't sue for excessive force because he doesn't know which officer kicked him. But he can sue the officers for conspiring to cover up misconduct, an act that deprives him of access to the courts.
- Progressive nonprofit says evangelical nonprofit is a hate group. An organization that publishes online directory of nonprofits adds a banner to its profile of the evangelical group, saying it "was flagged as a hate group by the Southern Poverty Law Center." Fourth Circuit: The evangelical group can't sue the directory over the banner.
- Landlord, a Fairfax, Va. mobile home park, imposes requirement that all adult tenants show proof of legal residence in the country; four Latino families (four men with legal status, four women who are illegal immigrants, and 10 U.S. citizen children) face fines, eviction. A violation of the Fair Housing Act? Could be, says the Fourth Circuit (over a dissent).
- Allegation: Man's mentally disturbed ex-wife has habit of calling in false reports to police that he's abusing their children (over whom he has custody). On one such occasion, Dallas police force their way into the man's home (after he declines to let them in without a warrant), pepper spray and handcuff him; the kids confirm they're fine. Fifth Circuit: The man can't sue the officers.
- Drunk driver flees from Austin, Tex. police, drives around police barricades and through crowd attending South by Southwest, a film and music festival, killing four, including a music producer from the Netherlands. Can the producer's family sue the festival organizers or the city? The Fifth Circuit says no, over a partially dissenting Judge Graves, who says the city could have foreseen the tragedy. (The driver gets life without parole.)
- University of Michigan students have sex. He says it was consensual; she says she was too drunk to consent. Witnesses support both parties, but a disciplinary panel finds the accuser's witnesses more credible. Facing expulsion, the accused withdraws from school. Sixth Circuit: The university violated due process by failing to permit cross-examination of the accuser and her witnesses. Concurrence: Our precedent requires schools to permit the accused to submit (and follow up on) written questions, but not (as the majority holds) to have a representative conduct cross in person.
- At Louisville, Ky. campaign rally, then-candidate Trump urges his supporters to remove protesters without hurting them. (Trump: "If I say go 'get 'em,' I get in trouble with the press.") His supporters then assault three protesters, who seek to sue Trump. Sixth Circuit: He didn't advocate imminent lawless action. Case dismissed.
- Allegation: Woman pulls into her friend's driveway. Within seconds, Lima, Ohio police surround her, order her to leave, pull her out of her vehicle when she tries to explain she's there to pick up her niece and nephew. She tells them she's pregnant; an officer tases her in the stomach. (Click here for video captured by bystander.) Sixth Circuit: No qualified immunity.
- Allegation: Police fabricate evidence to show that man was carrying ecstasy in a vitamin bottle (even though every test of the pills shows they're legal), and he spends 48 days in Joliet, Ill. jail before charges are dropped. Supreme Court (2017): Detention without probable cause violates the Fourth Amendment. But he might have filed suit too late. Seventh Circuit: His two-year window to sue began when he was released from jail, not when he was arrested. So he's entitled to a decision on the merits.
- Factory worker signs "dues-checkoff" agreement allowing employer to automatically deduct her union fees, send them to the union. After 2015 Wisconsin right-to-work law bans mandatory union dues, worker asks employer to stop collecting dues. The right-to-work law says employer must comply within 30 days, but the dues agreement the employee signed says the deduction is irrevocable for one year. Seventh Circuit: The state's 30-day rule violates federal labor law; she must pay the dues for at least a year. Dissent: The Supreme Court precedent the majority relies upon, though it hasn't been explicitly overruled, is no longer good law.
- In 2016, Missouri voters approved an amendment to the state Constitution that prohibits political committees from receiving contributions from other political committees. Eighth Circuit (splitting from the Eleventh Circuit): This violates the First Amendment. The law serves as a "prophylaxis-upon-prophylaxis," and any risk of corruption from PAC-to-PAC money transfers is modest at best.
- After a district court enjoined Missouri's abortion regulations, the Eighth Circuit this week reversed and benchslapped the lower court both for misapplying the Supreme Court's abortion jurisprudence and for deciding the case without giving Missouri a chance to grant waivers to abortion providers (as it had already done with respect to three of the state's five facilities).
- Minnesota's Democratic-Farmer-Labor Party nominates man to be part of the electoral college, and he pledges he'll vote for the Democratic candidate if she wins Minnesota's general election. She indeed wins, but, contrary to his pledge, man Feels the Bern and attempts to cast his ballot for Bernie Sanders. Minnesota officials decline to accept his ballot and instead turn to a substitute elector who voted for Hillary Clinton. Does this violate the Twelfth Amendment? We can't say, says the Eighth Circuit, as this case is moot thanks to the man's failure to proceed expeditiously with his claim.
- Can Arizona throw out ballots that voters cast in a precinct other than their assigned precinct? And can it prohibit people from collecting absentee ballots from voters on behalf of the state? Yes and yes, says the Ninth Circuit, over a lengthy dissent from Chief Judge Thomas.
- Retired Air Force major opposes 2012 federal law said to authorize indefinite detention of U.S. citizens without charges or trial, harangues his Bainbridge Island, Wash. neighbor for failing to publicly condemn the law. He creates a Facebook page to criticize (but not threaten) the neighbor. The neighbor (a local activist who founded memorial to Japanese-Americans from Bainbridge Island interned during WWII) sought and obtained state-court protection from the activity, which he deemed to be stalking and harassment. Ninth Circuit: The major's First Amendment challenge to the state's cyberstalking statute should not have been dismissed.
- Allegation: While executing search of home pursuant to warrant, female IRS agent insists on accompanying woman to bathroom, views her naked body. (Her husband, the subject of the investigation and warrant, was able to use the restroom in peace.) Can the woman sue the agent? Indeed so, says the Ninth Circuit. The agent didn't have cause to think the woman would destroy evidence. Concurrence: The cases the majority relies on establish only the unconstitutionality of opposite-sex bathroom observation, not that of same-sex observation. But a 1979 Supreme Court case makes clear that the agent wasn't entitled to searchthe woman as she was not the subject of the investigation.
- To win an excessive force suit, a plaintiff need not show an officer enjoyed beating them up, just that the officer intended to cause harm. So says the Ninth Circuit (splitting with the Eighth). So new trial for an inmate at Malheur County, Ore. prison who alleges he was not resisting when a guard repeatedly bashed his head against a concrete floor and steel door; the jury was erroneously instructed that the inmate needed to show the guard was not just cruel but also sadistic.
- Unlike almost every other state, California requires charities to disclose their donor information to state regulators, who have carelessly made hundreds of thousands of these confidential documents available online. Charity says this chills contributions and people associated with it have received actual death threats. A First Amendment violation? Ninth Circuit: We're convinced that California will be more careful in the future, so there's nothing to worry about. (We discussed New York's similar requirement on the podcast.)
- Operator of a marijuana dispensary in California—where marijuana is legal—faces a mandatory minimum of five years in prison for violating federal marijuana law. Should the jury have known about the sentence or their power to acquit even if they think there's enough evidence to convict? No, says the Ninth Circuit, but all hope is not lost. If the defendant can convince the court that he was in strict compliance with state law, he may qualify for relief under a 2015 law that prohibits the feds from spending money on the prosecution. Dissent: There may be no need to inform jurors they can acquit (if there is ample evidence of guilt, but they believe the law unjust), but here the court went further and implied they could be punished for jury nullification. Which violates the Sixth Amendment.
- Seven seventh-grade girls remain mostly silent in the face of San Bernardino County, Calif. officer's questioning. (Though there is maybe some whispering and giggling.) Which he finds disrespectful, so he handcuffs and arrests the lot of them, both bullies and victims. In his words, this course of action will "prove a point and make you guys mature a lot faster." Ninth Circuit: No qualified immunity.
- A cross erected 75 years ago in a public Pensacola, Fla. park is an unconstitutional endorsement of religion, says an Eleventh Circuit panel, though, say two separate concurrences, the precedent mandating this result should be reversed.
- Motorist goes into severe diabetic shock, drives erratically, pulls over on highway median. Video shows Argo, Ala. officer approach with f-bombs, both gun and taser drawn. The man shows his hands, attempts to comply with commands but is tased four times in quick succession before being pulled from the vehicle (just feet from oncoming traffic). Eleventh Circuit: No qualified immunity.
Last year, an Indiana trial judge found that the city of Charlestown violated the state and federal Constitutions by fining property owners thousands of dollars in an effort to force them to sell to a politically connected developer. The fines are part of the city's plan to eviscerate the modest but proud Pleasant Ridge neighborhood and replace it with homes for wealthier people. This week the Indiana Court of Appeals ruled that the city violated the state's Unsafe Building Law, the one argument the property owners, whom IJ represents, had lost on in the trial court. The case now moves back to the trial court, and IJ's clients remain safely in their homes. Click here to read more.